concurring in part and dissenting in part. I agree with the majority opinion as to point I, in affirming the chancellor’s ruling that the legislature’s restriction limiting the amount of money the Game and Fish Commission may spend on its magazine violates the separation of powers doctrine and Amendment 35.1 also agree as to point III, holding the review and advice section of Act 939 unconstitutional. However, I must respectfully dissent as to point II, the constitutionality of Section 18 of Act 939.
The majority opinion characterizes the question confronting the court under § 18 of Act 939 as the simple question of whether the legislature has the power to set the maximum license fees for residents to hunt and fish. The majority answers “yes.” But there is much more to the conflict under § 18 of Act 939 than simply setting the prices for hunting and fishing licenses. What is at stake strikes at the heart of the Game and Fish Commission’s constitutionally delegated duty to “control, manage, restore, conserve and regulate” the birds, fish, game and wildlife resources of this State.
Amendment 35 clearly provides that the maximum resident hunting and fishing license fees shall be set by the legislature.
Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an Act of Legislature.
But in the very next paragraph Amendment 35 grants the exclusive power to issue licenses and permits to the Game and Fish Commission.
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 furbearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and furbearing animals therein, and fix penalties for violations.
The legislature has, I believe, exceeded its constitutionally delegated duty to set maximum fees, and encroached on the power granted to the Commission to “issue” licenses under § 18 of Act 939 by creating categories of special licenses for turkey, bear, and elk. The legislature authorized the issuance of a limited number of special licenses in addition to the resident hunting and fishing license. Such virtual issuance violates Amendment 35. Furthermore § 18(G) of Act 939 states that “this Act shall be the only license or permit fees that the Game and Fish Commission may charge a resident for the privilege of hunting and fishing in this State.” Yet, Amendment 35 reserved the exclusive power to issue licenses to the Game and Fish Commission.
The power to issue licenses and permits is located in the same paragraph which gives the Commission the authority to regulate bag limits, to regulate the manner of taking game and fish and furbearing animals, to divide the State into zones, to regulate the seasons, and to fix the penalties for violations. All the enumerated exclusive powers granted to the Commission deal with their powers of regulation, conservation, and management of our fish and game resources. Therefore, the power to issue licenses and permits was clearly viewed by this statute as another method of controlling and stocking our game population. Although the licenses and permits are admittedly a part of the revenue raising scheme, their primary purpose is inextricably related to game and fish management.
In fact, the court recognized the regulatory nature of licenses in State, Ex. Rel. Wright v. Casey, 225 Ark. 149, 279 S.W.2d 819 (1955), upholding the Commission’s authority to require a dog license fee of $1.50 for hunting foxes. The court recognized the Commission’s broad authority to adopt rules and regulations for the conservation and regulation of wildlife in Arkansas, including establishing license fees which conflicted with those fees set by the legislature. In looking at Amendment 35, Sections 1 and 8 the court held:
Under these provisions of the amendment we hold that the Commission has been given full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife including not only the power to establish a bag limit, set seasons in which to hunt and fish and the penalty for violations but also the power to levy a license fee on all hunting dogs, just so long as such license fees are not unreasonable or arbitrary and are for regulatory purposes — as appears here — and not revenue . . . Obviously the people by enacting this amendment intended that the Commission should have sufficient and ample funds with which to function in preserving and propagating wildlife in the manner provided therein.
The Casey case illustrates the court’s recognition that the licensing and permit process of the Commission directly relates to their powers of management and control of game resources. Although arguably in that case the facts of issuing a dog license relate more closely to the manner of taking game, the court nevertheless examined Sections 1 and 8 of Amendment 35 and upheld the regulatory nature of the license and permit structure of the Commission.
The fallacy in the majority’s reasoning, as I view it, lies in defining license fees as a purely revenue raising matter. This belief leads the majority to the conclusion that the resident hunting and fishing license should include all permits and stamps for each particular species for which the legislature would then establish the maximum fee in toto. What this rationale ignores is the management function of the special licenses and stamps. Such licenses and stamps allow the Game and Fish Commission flexibility in controlling and stocking the game resources of this State.
Those parts of § 18 of Act 939 setting the maximum fee on the annual resident hunting and fishing licenses at $10.50 each, I regard as constitutional. However, those sections of Act 939 allowing the legislature to issue special licenses and permits are unconstitutional in light of the express language in Amendment 35 granting the exclusive power to issue licenses and permits to the Game and Fish Commission.