(dissenting.) The act of April 24, 1903, and the agreed statement of facts, present broadly this question:
Has the State the power to make it unlawful for nonresident owners of' real estate to shoot and hunt game and to fish on their own or the State’s property at any season while permitting- residents to shoot and hunt and fish on their own and the State’s property during seasons not prohibited by general and special game laws, known as the “open season?”
This question must be answered in the affirmative, unless there is a property interest in fish and game found on, over or under the surface of the real estate owned by such nonresidents, for the manifest intention of the General Assembly, as evidenced by the fourth section of said act, and the object and purpose of the act as a whole, are to make unlawful hunting and fishing by nonresidents.
No exception is made in favor of nonresidents on their own land, and hence it must be concluded that the General Assembly intended to exclude nonresidents from the privilege, or property interest — as it may be construed — of hunting and fishing on their own lands, while granting the right to residents, within certain seasons, of hunting and fishing on their own lands and the lands and waters of the State. To restrict the plain language' of the act to hunting and fishing on the public lands and waters would simply be judicial legislation. Therefore, the question must be met, has the State power to do this?
If the right to hunt and fish on one’s own land is a property right inhering to the ownership of the soil, then this act is offensive to the clause in the Fourteenth Amendment to the Constitution of the United States, and the same clause in section 8, article II, Constitution of Arkansas, providing that no person shall be deprived of “life, liberty or property without due process of law.”
This “due process of law” clause is the mudsill of' constitutional government. The rough barons of England wrote it, almost with their swords, in Magna Charta, in these words: “No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land.” These principles have lost no force in their more concise statement in our bill of rights — State and Federal. Counsel for appellee eloquently say: “These few but pregnant lines, fortified as they are by the Federal Constitution, are all that stand between us and the abyss of despotism or the hell of anarchy.”
Therefore a court must pause and carefully consider whether legislation under review seeks to undo the work done at Runnymede. The Supreme Court of the United States is the final arbiter on all questions involving rights asserted under the Constitution of the United States; and its decision on such questions, whether in form to be reviewed by it from this court or not, should be conclusive.
In the case of Geer v. State of Connecticut, 161 U. S. 519, every question here involved was considered and determined adversely to the contention of the appellee, as will be herein shown. The contest was over a statute of the State of Connecticut which provided (briefly speaking] an open and closed season for hunting and killing game; and further that at no time should certain game be killed for the purpose of shipment beyond the State; and further made it unlawful to transport or have in possession for transportation beyond the State any such game killed at any season. Geer was arrested for violating this statute, and, under the agreed statement of facts upon which he was tried, it was found that he was in possession of game killed during the open season for the purpose of transportation without the State, and that the game was not unlawfully killed for the purpose of transportation beyond the State. The case is stronger on the facts to support the contention of the appellee than the one at bar, because it was only dead game which was in the hands of Geer to be transported beyond the State, and had not been killed for that purpose. Evidently, under the case made, after the game-was lawfully killed, Geer came into possession of it for the purpose of shipping it without the State. Mr. Justice Field and Mr. Justice Harlan dissented from the opinion of the majority upon the ground that game, after being killed or captured, was then reduced to possession, and the taker or possessor had a property right in it which he would not have so long as it was uncaught.
The Connecticut court decided “that the State had power to make it an offense to have in possession, for the purpose of transportation beyond the State, birds which had been lawfully killed within the State during the open season, and that the statute, in creating this offense, did not violate the interstate commerce clause of the Constitution of the United States. The Federal Supreme Court said: “In other words, the sole issue which the case presents is, was it lawful under the Constitution of the United States (section 8, article I) for the State of Connecticut to allow the killing of birds within the State during a designated open season, to allow such birds, when so killed, to be used, to be sold, and to be bought for use within the State, and yet to ■ forbid their transportation beyond the State ? Or, to state it otherwise, had the State of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the State, and forbid its transmission outside of the State?
It is true that in that case and the one at bar different clauses of the Federal Constitution were invoked against the validity of the statute; in that case the “interstate commerce clause,” and in this the “due process of law.” This was owing to the varying facts and terms of the statutes, but the solution of each of the questions depends solely upon whether there is property interest in game. If there is, then the Connecticut statute would fall because in restraint of an interstate shipment of property; in this case, because it takes the property right from the landowner without due process of law.
The Supreme Court of the United States considered the question as turning on whether there was a property right in game. Mr. Justice White, after* stating the facts and issues presented, as above quoted, then said: “In considering this inquiry we of course accept the interpretation affixed to the State statute by the court of last resort of the State. The solution of the question involves a consideration of the nature of the property in game and the authority which the State had a right lawfully to exercise in relation thereto.” Then the learned justice takes up the subject of the ownership of fish and game from the earliest times known to the laws of civilized countries. He traces it through the Grecian, Roman and Salic laws, and gives an extract from the Code Napoleon, which he says summed up an unbroken line of law and precedent, as follows: “There are things which belong to no one, and the use of which is common to all. Police regulations direct the manner in which they may be enjoyed. The faculty of hunting and fishing is also regulated by special laws.” He further says that the fundamental principle on which property in' game rests pervade the laws of Germany, Austria, Italy, and, indeed, all the countries of Europe. Then, passing to the common law of England, he says: “The common law of England also based property in game upon the principle of common ownership, and therefore treated it as subject to governmental authority.” Then follow quotations from Blackstone showing the paramount authority of the government over fish and game, while recognizing a qualified property in the privilege of hunting and fishing on his own ground to the exclusion of others; but the minute the game passes his boundary, ’ that fugitive right is also gone.
The court proceeds to declare that this attribute of the government to control animals ferae naturae was vested by inheritance in the colonies founded in America by the English people, and passed from the colonies to the several States on the formation of the Union, and remains in the States to the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights granted the Federal government. Then, the court proceeds to a review of the numerous decisions of the Supreme Court of the United States and of the several States, recognizing the absolute right of the State to control and regulate the common property in game and fish. The court cites and approves many cases, not only of regulation, but of “control” of the common property in game. Among others so cited is Organ v. State, 56 Ark. 270, in which Mr. Justice Hemingway for this court said: “The ownership of fish is in the State for the benefit of its people in common, and the Legislature has the right to permit individuals to catch them upon such terms as it may impose, and to restrict the property acquired in them, when caught, to such extent as it seems proper. McCready v. Virginia, 94 U. S. 391; Am. Express Co. v. People, 133 U. S. 649; Magner v. People, 97 Ill. 333.” In the case of Magner v. People, cited with approval by Judge Hemingway, the Illinois court said: “No one has a property in the animals and fowls denominated ‘game/ until they are reduced to possession. Whilst they are untamed and at large, the ownership is said to be in the sovereign authority — in Great Britain in the King, but with us in the people of the State. * * * The ownership being in the people of the State, the repository of the sovereign authority, and no individual having any property rights to be affected, it necessarily results that the Legislature, as the representative of the people of the State, may withhold or grant to individuals the right to hunt or- kill game,’ or qualify or restrict it, as, in the opinion of its members, .will best subserve the public welfare. Stated in other language, to hunt and kill game is a boon or privilege granted, either expressly or impliedly, by the sovereign authority — not a right inhering in each individual; and, consequently, nothing is taken away from the individual when he is denied the privilege at stated seasons of hunting and fishing. * * * But in any view the. question of individual enjoyment is one of public policy, and not of private right.” This is reiterated and approved in People v. Bridges, 142 Ill. 30.
The above excerpt, and more, from Magner v. People, is quoted by Mr. Justice White in the Geer case as expressing the correct doctrine. Therefore the case comes as authority approved by this court and approved and copied at length as part of its opinion by the Supreme Court of the United States. Coming thus accredited, it is conclusive and binding authority to the effect that there is no property right in fish and game in individuals as against the State, and the State may, as a boon or privilege, permit hunting and fishing to any one, or withhold it from any one, and affect no property interest whatever.
Returning to the Organ case, Mr. Justice Hemingway continued: “It (referring to the State) may prohibit catching them entirely, or for a specified season; or it may permit them to be caught for the use of the person who makes the catch, and withhold the right to sell them, or ship them for sale. When preserved for the common benefit of the people of the State, they are not articles of commerce in any sense, and we can not see that they become such simply because the Legislature permits them to be caught by individuals for use within the State only.” Counsel for appellee, to break the force of this decision as authority here, says of it that it “merely follows Geer v. Conn. The fish were taken from public waters, and the case has no resemblance to this.” It would be more accurate to say that Geer v. Conn. followed the Organ case, as it is twice cited approvingly therein. But the argument of counsel is answered in the opinion itself wherein it says: “One who catches them had originally no separate property in them, and no right to acquire it except as the Legislature might provide; as all right of property in them is derived from the State, it is subject to such terms as the Legislature imposes. * * * The restriction was imposed by right of ownership, and not in the exercise of any assumed power to regulate. the commercial use of private property.” Thus the power of regulation is placed upon its only true basis — the right of ownership of the fish and game in the State, and it matters not where it is found (except reclaimed game in parks and fish in private ponds, which have a property right impressed in them by being reduced to personal possession, and are no longer ferae naturae.) But a more complete answer than is here given to the position of counsel that the Organ case does not control as to game or private property, but only in public domain, is given in American Express Co. v. People, 133 Ill. 649. This case is cited as authority by Mr. Justice Hemingway in the Organ case and by Mr. Justice White in the Geer case. It grew out of a statute of Illinois prohibiting the exportation of quail killed anywhere in the State, whether on private or public domain, and the court said: “It is, however, argued that where quail have been killed, the dead animals become property, and the taker becomes the absolute owner of such property, and an act to prevent a sale or transportation for sale within the State would be an interference with private right, amounting to a destruction of the right of property without due process of law.” This is not distinguishable from the position of appellee herein who insists that the right to take game on his own property is a property right which can not be taken from him without being a destruction of the right of property without due process of law. But the Illinois court answered this argument as follows: “The fallacy of the position consists in the supposition that the person who may kill game has an absolute property in the dead animals. In the Magner case, supra, it was held, as has been seen, that no one has a property in animals and fowl denominated game — the ownership was in the people of the State. * * * The act, therefore, does not destroy a right of property, because no such right exists.”
Mr. Justice White, aftér fully reviewing the adjudications of many States on this subject, deduces these propositions: That the qualified property interests in game is derived from the sovereign grant of it, and it may be withheld, restricted or regulated; that a State may permit its own people to enjoy their own property, and withhold from them the right to deal with it as an article of interstate commerce; that there may be an internal commerce in the dead animals which does not conflict with the right of Congress to regulate interstate commerce; and .further: “The common ownership imparts the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.”
In speaking of cases from Kansas and Idaho contrary to the decision reached in Geer case, Justice White said: “But the reasoning which controlled the decision of these cases is, we think, inconclusive, from the fact that it did not consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus overlooked the authority of the State over property in game killed w-ithin its confines, and the consequent power of the State to follow such property into whatever hands it might pass, with the conditions and restrictions deemed necessary for the public interest.” This ultimate conclusion that decisions to the contrary of this one are based on a confusion of the nature of the qualified property right in game may account for some decisions conflicting with this view, but in the main there is no serious conflict in the decisions. Take for instance Payne v. Sheets, 55 Atl. 656, which appellee’s counsel present as the best considered opinion dealing with the question of ownership of game. The action was trespass quare clausum fregit brought under a statute of Vermont giving such action to the owner or occupant of land against a person going thereon without permission of the owner or occupant for the purpose of hunting thereon. The plaintiff alleged that he was the owner and occupant of the land for the purpose of shooting, trapping, fishing, etc. He was not tire owner of the fee, but of these hunting and fishing rights, and the question was presented whether he was an owner or occupant of the land within the statute. In an earlier Vermont case, State v. Theriault, 41 Atl. Rep. 1030, the court had held: “Fish themselves are ferae naturae, the common property of the public, or of the State in this country. From this common property, the owner of the soil over which the nonboatable stream flows has the right to appropriate such as he may capture and retain; but this right of capture and appropriation is subject to regulation and control by the representatives of the people, so that they shall continue to be common property. * * * Not a decision in this country, State or National, has been brought to our attention by the respondent, nor by quite an extensive examination , of such cases, which holds that such acts of the State Legislature, in regard 'to this class of property, and in restraint of the right of the riparian owner to take and appropriate fish therefrom, are unconstitutional. They have uniformly been held to be, not a taking of private property or private rights for public use, for which compensation must be made, but an exercise of the police power of the State to preserve and increase a common property,” etc. The court in Payne v. Sheets, commenting on this decision, said: “The sole question in State v. Theriault was, as considered, the constitutionality of the law regulating the right of the owner of land to fish on his own premises. The law was upheld as a proper exercise of the police power, under the provisions of the constitution.” Thus this class of cases was approved, and held not to be in conflict with the views entertained in the case then before the court, which was a mere question between individuals as to the rights permitted by the State. The court held that there was a qualified ownership in the soil for the purpose of hunting and fishing, separate from the ownership of the land itself. This is technically known as a profit a prendre. It is a well recognized and valuable right. As pointed out by counsel for appellee, vast game- preserves in the north of England and Scotland are annually let to rich Americans and other parties of means and leisure. These game preserves are. not unknown in this country, and in Payne v. Sheets the profit a prendre was protected to the extent of holding the owner of it an “owner or occupant” within the trespass statute of Vermont. But this valuable incident to real estate is held subject to the right of the sovereign authority. It is conceded on all sides that the enjoyment of it may be restricted by regulations, like the open and closed seasons. And it is thought that the authorities here adduced establish that it may also be absolutely forbidden by the sovereign, or granted as a boon or privilege to whom the sovereign chooses. Therefore the qualified ownership in game, the profit a prendre in land for purpose of hunting or fishing thereon, is a valuable right between individuals. Trespassing will not be allowed to destroy it or interfere with it, but it is subject to the dominance of the people who have the perfect, not qualified, property interest therein.
The argument is also made that this act discriminates unlawfully by denying equal privileges to citizens of other States. McCready v. Virginia, 94 U. S. 391, puts this question at rest.'
This same question came up in Tennessee under a statute forbidding fishing anywhere except by rod or line and excepting private ponds, and was thus disposed of by the Supreme Court of that State: “Finally, it is insisted that this act is void because violative of the first section of the Fourteenth Amendment of the Constitution of the United States in that it unwarrantably interferes with the property rights of owners of lakes, etc. We think this contention equally unsound. It overlooks the fact that fish in streams or bodies of water have always been classed by the common law as ferae naturae, in which the riparian proprietor, or the owner of the soil covered by the water, even though he may have the sole and exclusive right of fishing in said waters, has, at best, but a qualified property, which can be rendered absolute only by their actual capture, and which is wholly divested the moment the fish escape to other waters.” Peters v. State, 96 Tenn. 682.
In the opinion of the minority of the court in this case the act is constitutional, and the fourth clause effective against nonresidents hunting and fishing in their own premises, and therefore the judgment should be reversed.
Mr. Justice Battue concurs herein.