117 Ark. 54 | Ark. | 1915
Appellees, Adams, MeMasters and Eice, instituted separate actions against appellant to recover the value of barrels of wild ducks consigned from Manila, Arkansas, to Chicago. The ducks were killed on Big-Lake in Mississippi County, Arkansas, and shipped on through bill of lading .from Manila, a point on appellant’s line of road. Appellant received the consignments and transported .the saíne to Blytheville and delivered them to the Wells Fargo & Co. Express, the last named carrier transporting the .shipment to Chicago. The ducks were seized at Chicago and confiscated by a game warden acting for the United States and also for the State of Illinois, and appellant defended on the ground that it is not lialble for the value cf the shipment because of such confiscation by lawful authority at the destination. The three cases were consolidated and tried together and resulted in judgments in favor of each of the plaintiffs. The issues were the same in each case.
Appellant contends that it is not liable because the ducks were .shipped in violation of the laws of this State; that the shipment was also in violation of the act of Congress of May 25,1900, known as the Lacey Act; and, third, that the ducks were confiscated in Chicago pursuant to the authority conferred by statutes of the State of Illinois. If either of these contentions be sound, then it follows that there is no liability on the part of the carrier, for if the shipment was unlawful, or if the seizure in Illinois was by lawful authority, the carrier can not be held , responsible for damages. Eager v. J., L. C. & E. Express Co., 103 Ark. 288.
The Federal statute provides, in substance, that it shall be unlawful for any person to deliver to a common carrier for shipment from one State or.territory to another State or Territory any wild animals or birds which have been killed in violation of the laws of the State in which the same were killed, but that nothing in the act shall prevent the transportation of dead birds or animals killed during the season when the same may be lawfully captured and the exportation of which is not prohibited by the laws of the State or Territory in which the ¡same are killed. Another section provides that all packages containing- “such dead animals, birds or parts thereof, * * * shall be plainly and clearly marked, so that the name and address of the shipper and the nature of the contents .may be readily ascertained on inspection of the outside of such packages.” Still another section provides that “the dead bodies ¡or parts thereof of any wild game animals, or game or song birds transported into any State or Territory, or remaining therein for use, consumption, -sale, or storage therein, shall upon arrival in such 'State ¡or Territory be subject to the operation and effect of the laws of ¡such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such animals or birds had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. ’ ’
So the vital point in this ease is whether or not appellees violated the laws of this State in exporting the game. There is a special statute making it lawful to purchase or sell wild ducks in -certain portions of Mississippi County, where those shipped by -appellees were killed, and also making it lawful to ship them out of the State from that locality. Appellant insists, however, that the special statute is void, and that for that reason the shipment of game was unlawful. That question wa-s not decided in the Eager case, supra. The general statutes of the State provide that it shall be unlawful for -any person or corporation to purchase or have in possession for barter or sale any wild game or wild fowl of any kind; also that it -shall be unlawful for -any person or corporation to export or -carry beyond the lines of the -State any such wild game or fowl, and penalties are prescribed for violation -of either of those provisions. These provisions are found in .sections 3618, 3619 -and 3620 of Kirby’s Digest. The General Assembly of 1909 enacted a special statute applicable to certain town-ships in the Chickasawba District of Mississippi County (Acts 1909, page 1131, No. 397), (the point of shipment in this -case being a railroad station in one of those townships), entitled ££An Act prohibiting the -selling or shipping of certain game from certain townships in the Chichasawha District of Mississippi County, Arkansas, and repealing sections 3618, 3619 and 3620 of Kirby’s Digest, in so far as they apply to said townships.” The first three sections of the act were substantially .copied from the sections of Kirby’s Digest above named, except that the purchase or sale or exportation of wild ducks and geese is excluded from the operation of the statute. iSection 4 of the act provides that the above named sections of Kirby’s Digest are repealed “in so far as same affect and apply to Big Lake, Neale, Hector and Bowen townships in the Chickasawba District of Mississippi County.” Section 5 of the act provides that it shall apply only to the townships named above. The contention of appellant is that this act is void for the reason, in the first place, that it is in hopeless obscurity as to what the lawmakers meant, and also that it amounts to an unjust discrimination 'against other citizens of the State. When the whole of the special statute is carefully considered, we think that the meaning of the Legislature is manifest and that such meaning is expressed with sufficient certainty to accomplish the design of the lawmakers. It is clear that the Legislature intended to repeal the sections of Kirby’s Digest mentioned, so far as the same applied to the designated territory in Mississippi County, and to substitute therefor the three sections, set forth in the special act which excluded wild ducks and geese from its provisions. The effect of this statute is to repeal, so far .as applicable to that territory in Mississippi County, the inhibition against purchasing, selling or exporting wild ducks 'and geese and to make it lawful to sell and export that kind of wild game. The further argument against the validity of the act is that it is unconstitutional in that it violates the section' of the Constitution which provides that the General Assembly “shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” Const. 1874, art. 2, § 18. It is contended that while any person in the -State may go to this territory and kill game and ship it out of the State, it would be such an inconvenience to persons living in distant portions of the State as to practically exclude them from the enjoyment of the privilege and in effect to deny them the privilege which is enjoyed by those who reside in the territory named. The rule laid down by this court in the case of Lewis v. State, 110 Ark. 204, is invoked as sustaining that contention. That case involyed the question of the validity of a statute which required non-residents of a certain locality to pay a license fee for the privilege of hunting and fishing therein, but exempted residents of the locality from that imposition. We said that all the citizens of the State had equal right to enjoy the privilege of hunting and fishing, and that no one citizen nor class of citizens could be granted a privilege in that regard which did not equally belong to all other citizens.
It remains only for us to apply the principles thus ■announced to the statute now under examination. Wild ducks and geese are migratory fowls, ¡and do not propagate in this State, but come from colder latitudes. A few species of wild ducks found here are not migratory, but those which are found in large numbers during the winter season, and which are generally sought by hunters, are of the migratory sort. It is impossible, therefore, to enact laws in a single State or locality for the preservation of such fowls. Nevertheless, the people of this State are interested in the preservation of all kinds of wild game and fowls, and the law-makers contributed to the preservatiom of wild ducks and geese, as well as other wild game, by enacting a general statute prohibiting the purchase, sale or exportation thereof. Kirby’s Digest, § § 3618-19-20. The purpose of that legislation was to restrict the taking of game for use only by persons who by their own skill may kill or capture it, and such others in the State to Whom the}^ may see fit to give it. It was thought in that way the wholesale slaughter of game could be prevented. 'The Legislature subsequently passed the special statute under consideration, whereby a selection was made of four townships in Mississippi County and that territory was exempted from the operation of the general statute so far as concerned the purchase, sale or exportation of wild ducks and geese. Those four townships embrace a large body of water known as Big Lake, and wild ducks and geese are found there during the winter season. It is in line 'with what investigators, and writers on the subject term “migration routes” along the valleys of great waterways. Now, it is readily seen that the lawmakers, instead of protecting this kind of game in the place where it is most abundant, have removed all restrictions upon its slaughter and have thrown ■wide the door to destruction. It is impossible to find any reason for the exemption except one of favoritism to the people of that locality, who doubtless have been importunate enough 'through their representatives in the Legislature to induce that bodj^ to confer the special privilege. If the exemption applied to non-migratory game, we might indulge the presumption that the lawmakers found it was so abundant there that restraints were unnecessary to preserve it; but in the case of migratory fowds, that reason entirely fails. The supply is easiest exhausted at the place where it is most abundant. The exemption of a territory free from the visits of such migrants would be unobjectionable, as the importance of measures for preservation of that ldnd of game in a given territory lessens in the ratio. of its scantiness therein. If it is plentiful, the drain on the source of supply is great and restraints are necessary; but if meager, the exhaustion there has little effect at the source of supply.
The judgment in each case is reversed and the cause dismissed.