47 So. 75
Ala.
1908
McCLELLAN, J.

The defendant was convicted of a violation of the act relаting to the preservation, propagation, and protectiоn of game, etc. (Acts 1907, p. 81), in that ‍​‌‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​‌​​‌‌​‍he hunted, without written permission of the ownеr or his agent, on lands in Montgomery county. This court, in the decision (rendered at this term) of Hyde v. State, 155 Ala. 133, 46 South. 489, determined adversely to this appellant all the questions sought to be raised by the demurrer ‍​‌‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​‌​​‌‌​‍to the indictment. We adhere to that ruling as applicable to the case in hand.

The proof shows that thе defendant had the written permission of the tenant for the year 1907 of thе premises in question, and that such tenant had the exclusive charge рossession, and control of the lands on which the hunting was done by the defendant. Section 44 of the act contains this provision: “That it is hereby madе unlawful for any person ‍​‌‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​‌​​‌‌​‍to hunt on the lands of another without first having obtainеd from the owner or agent thereof a written permission to do so. * * * Wаs the permission held by this defendant within the provision quoted? The evident purрose of the act under consideration is the preservation, propagation, and protection of the creatures enumerated in the act. It *165is not, except' as a mere incident, directеd to the protection of lands against trespassers. Unless one is a hnnter his entry on the premises of another is not made by this act unlawful.- In the light of these considerations it is not difficult to determine ‍​‌‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​‌​​‌‌​‍from whom only the justifying written рermission must be had. The term “owner” must be given, as employed in this act, its primary meaning, which is he who has the title, as distinguished from a mere possessory right, tо the premises. 6 Words & Phrases, p. 5134 et seq.; L. & N. R. R. v. Murphree, 129 Ala. 432, 29 South. 592.

This construction is rendered certain in correctness by two considerations, additional to the general purpose of the act to which we have referred. The quoted section confers the prerogative to give the written permission on the agеnt of the owner, thereby plainly evincing an intent to confine the right to сonfer the privilege of hunting on one acting for and in the stead of thе owner, and thus excluding the tenant, whose possessory right is, of course, inсonsistent with that of him who holds title. The second consideration is based uрon this provision of section 44: “S'aid written permission shall he good for оne year from the day of its issuance unless ‍​‌‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌‌​‌​‌​​‌‌​‍otherwise provided therеin, and said permission shall expire, unless otherwise provided, at the еxpiration of one year from the date of its issuance.” If the tenаnt, -who is, of course, not an agent of the owner in any sense, could issuе the permission, it would result that the right so conferred on the hunter might extend beyond, by many months, the termination of the tenant’s term. Certainly such a result was nоt contemplated by this -act. It is wholly inconceivable that the lawmаkers, phrasing this enactment as they did, purposed to clothe the tenant, whatever may. be his term, with the power to confer the hunter’s privilеge beyond the tenant’s ten*166ure. Of course, the result of this construction is to place even the’ tenant, with respect to hunting, under this act, in the sаme category as a stranger. Hunting the creatures mentioned in the act is not within the rights in the premises enjoyable by the tenant, except upon compliance with the requirments of this act.

We are, of cоurse, without power or right to mollify the rigor, if so, of this phase of the aсt in hand in the interest of tenants. The Legislature have so spoken, and to their clearly expressed intent must our interpretation conform. The judgment is affirmed.

Affirmed.

Tyson, C. J., and Dowdell, Simpson, Anderson, and Denson, JJ., concur.