FARRIS v. ARK. STATE GAME & FISH COMM.
5-1293
Supreme Court of Arkansas
February 24, 1958
310 S. W. 2d 231 | 228 Ark. 776
Ed E. Ashbaugh, Neill Bohlinger and Wood & Smith, for appellee.
Appellants are two, of many persons, who have become engaged in the vocation of raising fish on their privately owned lands to be marketed for profit. In order to profitably raise so called, “rough fish,” it is a recognized practice in fish farming to raise game fish in reservoirs to feed upon and reduce the number of “rough fish” so that the remaining “rough fish” will mature faster from the available vegetable and plant life in the reservoirs. It is when these cultivated fish are ready to be harvested, that the real issue is presented. The appellants contend that they should be permitted to sell the game fish just as they are permitted to sell their other fish, not classified as game fish, and for the Commission to prohibit their sale of game fish raised in private waters, is an infringement upon their rights as the owners of property to such an extent that it amounts to a taking of their private property without due process of law, or for public use; and without just compensation. The Commission contends to the contrary; that it has the power to make such regulations as it deems necessary for the conservation and protection of the wild life and game of the state; and that it is a valid exercise of the police power of the state to prohibit the sale of game fish in the furtherance of the program of conservation.
Prior to July 1, 1945, the effective date of
Section 1 of Amendment No. 35 Provides: “The control, management, restoration, conservation and regulation of birds, fish, game and wild life resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Fish Commission, to consist of 8 members.” Section 8 of the amendment, further provides, “The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and fur-bearing animals, and shall have the authority to divide the State into zones and regulate seasons and manner of taking game and fish and fur-bearing animals therein, and fix penalties for violations.” Section 8 further provides, “All laws now in
The Commission, pursuant to authority vested in it, under Amendment No. 35, adopted Article 124 of its General Rules and Regulations, which provides “Sale of game fish prohibited — Penalty. It shall be unlawful to sell, offer for sale, or possess for sale in this state any game fish commonly known as black, striped or white bass, or rock-war-mouth, or calico, crappie, bream, perch, pike, or jack-salmon, except green sun fish, (commonly known as Ricefield Slicks), four (4) inches in length may be sold for fish bait only. A violation of any provisions of this Section shall constitute a misdemeanor and any person convicted thereof shall be fined in any sum not less than Twenty-Five ($25) Dollars.”
Subsequent to the promulgation of Article 124 of the General Rules and Regulations by the Commission, and subsequent to the commencement of these two consolidated causes of actions, the Legislature enacted Act 65 of the Acts of 1957 entitled, “An Act to Define Domestic Fish and to Declare the Policy of the State in Regard Thereto.” Act 65 defined “Domestic” fish to mean fish that are spawned and raised in privately owned waters, declared such “domestic” fish to be private property of the owners of the privately owned waters, in which they are found, declares the sale of such “domestic” fish to be lawful; as of common right, not as a privilege, and then declared that the sale of “domestic” fish could not be prohibited or restricted, or licensed by the State or any of its agencies; except as was provided for in Section 3 of said Act, which Section 3 laid down a set of rules and regulations for the Game and Fish Commission to follow in permitting the sale of “domestic” fish. Section 4 of Act 65 provided that all laws and parts of laws, which are in conflict herewith are, to the extent of such conflict, hereby repealed.
Thus we have a direct conflict between Article 124 of the Commission‘s Rules and Regulations, and Act 65
A majority of this court has concluded that this power is now vested in the Commission as opposed to the Legislature with the Adoption of
This court has consistently upheld the powers of the Commission as opposed to the powers of the Legislature in the field of conservation of the wild life resources of this state. In the case of W. R. Wrape Stave Company v. Game and Fish Commission, 215 Ark. 233, 219 S. W. 2d 948, we held, “The Game and Fish Commission has been given very broad discretion in determining how wildlife shall be preserved; that Amendment No. 35 is complete within itself, and that prior Legislative Acts, whether directive or restrictive in measure, have been superseded. It seems to have been the purpose of those who wrote the Amendment to cover the whole subject and to either provide or leave to the Commission methods for reaching these ends.” This Court has upheld the powers of the Commission to enact laws different from those provided by the legislature in other instances, such as the power to fix the amount of license fees on hunting hounds, State v. Casey, 225 Ark. 149, 279 S. W. 2d 319, also wherein the Commission refused to recognize the validity of a 1949 legislative act which provided for counties and state to pay an equal bounty for the killing of wolves. Arkansas State Game and Fish Commission v. Edgmon, 218 Ark. 207, 235 S. W. 2d 554. Obviously, the people, by enacting this amendment, intended that the Commission should have the power to control, manage, restore, conserve and regulate the fish, game and wild life resources of the state, with the exception of the power expressly reserved to the Legislature to make appropriations and to fix the amount of the annual resident hunting and fishing license. Even though a majority of this Court is of the considered opinion that it is highly advantageous to that commendable business of fish farming to raise game fish, along with other fish, which the fish farmers are permitted to raise and market for a profit, still the Commission, through its broad discretionary powers in conservation measures, has determined that to market these game fish would hamper if
It is settled law that fish and fishing rights in waters entirely within land of a single owner, without means to migrate belong to the owner of the land. “The owner of the land has a right to take fish and wild game upon his own land, which inheres in him by reason of his ownership of the soil. It is a property right, as much as any other distinct right incident to his ownership of the soil. It is not, however, an unqualified and absolute right, but is bounded by these limitations: That it must always yield to the state‘s ownership and title, held for the purposes for regulation and preservation for the public use. These two ownerships are rights — that is to say, the general ownership for one purpose, and the qualified or limited ownership of the individual, growing out of his ownership of the soil are entirely consistent with each other, and in no wise conflict.” Arkansas State Game and Fish Commission v. Storthz, 181 Ark. 1089, 29 S. W. 2d 294; State v. Mallory, 73 Ark. 236, 83 S. W. 955. The owner is free to do whatever he desires to do with such game fish, just as long as he does not undertake to use them in such a manner as would conflict with the purposes of the general ownership of the state; which purposes are to regulate and preserve the wild life resources of the state for the people. Here the Commission has determined that for the owners of game fish raised in their privately owned waters to be permitted to sell them, would inevitably create an enforcement problem. The opinion of the learned trial judge in this respect is amply supported by the evidence.
The action of the Commission in prohibiting the sale of game fish raised in private waters is a valid exercise of the police powers of this state. The control, management, restoration, conservation and regulation of birds, fish, game and wild life resources of the state is a proper function of the police power of the
It follows that the General Assembly exceeded its legislative powers in enacting Act No. 65 of the Acts of 1957, by attempting to exercise legislative powers pertaining to a subject matter, which was not expressively reserved in the Legislature by
Accordingly, these causes are affirmed with the modification that the Commission‘s Regulation F is invalid, as applied to fish farmers. The issue in main, having been resolved in favor of appellees, the costs are taxed against appellants.
HARRIS, C. J., disqualified and not participating: McFADDIN and WARD, JJ., dissent.
PAUL WARD, Associate Justice, dissenting. My reasons for dissenting to the opinion of the majority may be grouped under the following headings: One, Amendment No. 35 did not give the Commission any authority over privately produced fish; and two, the Commission‘s power to regulate does not include the power to destroy.
Very briefly, this litigation arose as follows: Appellants filed a complaint in the Chancery Court of Pulaski County stating that they were about to take from their own privately owned reservoirs fish [meaning, when herein used, the kind of fish forbidden to be sold] and sell them at private or public sale, but that the Commission, unless enjoined, will subject them to prosecution and will confiscate their fish. The Commission answered: Unless enjoined it will prevent appellants from selling said fish; it is necessary to confiscate (emphasis supplied) said fish to protect the fish in the waters of the state, and; if the sale of game fish from private ponds is permitted, it will be impossible for the Commission to police and prevent the sale of game fish taken from public waters, causing the stock of game fish in public waters to be depleted.
From the above it is clear, of course, that the Commission is not attempting to regulate but to destroy—
One. To begin with, the Commission, in promulgating rules relative to the fish in question, is dealing with property over which it was given no jurisdiction by
Two. In view of what was pointed out above, it follows that the only power the Commission could have over such fish would be the same right the state had [before the
I consider it fundamental to a correct disposition of the question under consideration to recognize the importance of protecting private property—a matter which the majority seems to have overlooked.
Since the Commission makes no pretense of compensating appellants, it is important to examine the situation to ascertain if the Commission is actually taking appellants’ property. It is, of course, not denied that the Commission assumes the power to prevent appellants from selling their property or otherwise disposing of it for profit. Under the law this amounts to a taking. It is a rule so well established by the courts as to require no citations that the right to own property carries with it the right to dispose of it.
It is my view therefore that the maximum right the Commission has in this case is to regulate the sale of game fish raised by appellants. From the standpoint of simple justice there is a grave responsibility upon the Commission to exert every reasonable effort, by the promulgation of strict regulations, to make it possible to allow the growing industry of fish farming to continue in business on a profitable basis. At least the Commission should be will-
Incidentally I do not at all agree with the majority‘s announcement that the legislature has been stripped of all legislative authority except to appropriate money for the Commission and to increase resident hunting and fishing licenses. This conclusion of the majority is apparently based on a sentence in
To my mind it is a matter of grave concern and importance that the majority opinion has now constituted the Fish and Game Commission an independent law making body.
I submit that, in the name of simple justice and according to the clear letter and spirit of the law, this case should be reversed and remanded to the trial court with directions to order the Commission to promulgate reasonable rules that will allow the growing industry of fish farming to continue as a profitable business. It is common knowledge that there is now considerable nation wide agitation in favor of fish farming, and Arkansas is most favorably situated to profit by such an industry.