State ex rel. Clarkson v. Philips

On Rehearing.

Per Curiam.

In a petition for rehearing it is stated in effect that the court failed to consider the validity, the intent and the effect of section 1 of Chapter 6969, asserted to have been passed not as a revenue act or as a police regulation but upon the legal theory of the ownership of the game by the respective counties and making' the license taxes imposed merely incidental to the protection of the game; and failed to consider that the important part of the act are the provisions for officers having especially in charge the enforcement of the act, and that to allow the valid sections of the act to stand would accomplish a result not intended by the Legislature; and failed to consider the validity and effect of sections 18 and 39 and a portion of section 25 of the act; and failed to consider and define the term “bona fide resident” as used in sections 19 and 20, and to consider that the elimination of portions of the act leaves the game without the special protection sought to be given by the act, and does not revive other laws expressly repealed by section 39, and to consider that the main purpose of the act is the preservation and protection of game and not the incidental issuing of hunting licenses in each county where hunting is done, and to consider that the invalid portions neces*361sarily render the entire act inoperative, and failed to consider whether the relator as a resident citizen of the State has a right to have a license issued to him to hunt in any county within the State. Some of these matters were not presented by counsel but all of them were considered by the court.

Though the relator was not asserting a right to a license in any county except the one in which he resides, the opinion indicates the rights of all bona fide residents of the State to obtain licenses to hunt in any county of the State. There was nothing in the pleadings calling for a definition of a "bona fide resident.” The opinion expressly states that the main purposes of the act are the preservation and protection of game and the issuing of hunter’s licenses in each county where hunting is done; and this determination is clearly right in view of the title and the language of the act considered alone or in connection with previous laws on the subject. It is also clear that the act intended to provide special officers to enforce the provisions of the act; but though this portion of the act is violative of the constitution and therefore inoperative, the other portions of the act are not thereby rendered inoperative, since as distinctly held, the provisions -of the act may be enforced by the established authority of the county officers. The portion of section 25 relating to the compensation of officers attempted to be provided for necessarily falls with the inoperative sections relating to such attempted officers.

The fact that section 18 provides that fines and penalties and forfeitures under the act shall go into the fine and forfeiture fund of the county and that half of the fines and penalties shall be paid witnesses, does not necessarily render illegal the requirement that a license tax *362of three dollars shall be paid by residents of other counties,- such fines and penalties are only a portion of the fund, the tax payers of the county being burdened with the maintenance of the fund.

The act is regarded as a police regulation for the protection of the game in the State, for the benefit of the whole people of the State; and, as expressly held in the main opinion, the provision of section i as to the vesting of the bare legal title in the counties, is not material in view of the purpose of the act to protect the game for the people of the State, the unlawful discriminations as to time of residence in a county being eliminated as inconsistent with the rights of all the residents of the State.

Section 39 repeals Chapters 6534 and 6535, and all other inconsistent laws, but this does not destroy the effectiveness of the sections of the act held to be operative, nor does the elimination of the invalid portions of the act accomplish a result of primal consequence that was not intended by the Legislature. A consideration of the title or the body of the act does not show that its main and essential purpose was to establish game wardens to protect game, but to protect game with a change in the method of issuing license that would be fairer to the counties in which game is found, the provision as to game wardens being not a primary purpose of the act.

The net proceeds of license taxes collected are required to be paid into the county school fund, but on the pleadings in this case it is not material whether the act is or is not in part a revenue measure or whether revenue *363is or is not a mere incident to the regulations of the statute respecting the talcing of game in the State.

A rehearing is denied.

Taylor, C. J., and Cockrell, Whitfield and Ellis, JJ., concur.

Shackleford, J., takes no part.