(Dissenting). This is the third case directly involving the ¿minent domain power sought to be exercised by the Arkansas State Game and Fish Commission under Amendment No. 35 of the Constitution. The two previous cases are Wrape Stave Co. v. Arkansas State Game and Fish Commission, 215 Ark. 229, 219 S. W. 2d 948, and Hampton v. Arkansas State Game and Fish Commission, 218 Ark. 757, 238 S. W. 2d 950.
Wrape v. Commission, supra, was an eminent domain proceeding for the purpose of constructing a lake in Faulkner County; and one of the questions was whether the purpose was within the purview of the Constitutional Amendment. We recognized in that case, as we have all along, that the Commission has authority to exercise eminent domain within the purview of the Constitutional Amendment. We said:
“The Game and Fish Commission is given a very broad discretion in determining how wildlife shall be conserved. Not only may it acquire, by condemnation or otherwise, the property actually needed, but it may also procure'any that may be ‘useful or convenient ... in the exercise of any of its duties ’; and, while in matters of mere convenience the power would not be unlimited, yet the italicized words serve to emphasize a plan by those who framed the Amendment—a bilateral purpose to conserve wildlife, and to place that duty with the Commission. ’ ’
Hampton v. Commission, supra, was an attempt by the Commission to take land by eminent domain for the purpose of constructing a public duck shooting ground; and we said:
‘ ‘ The plan here is to kill ducks; and killing is certainly the antithesis of restoration and conservation. Neither can killing be said to be control, management or regulation. When read in the light of the letter and spirit of the Amendment No. 35, it is reasonably clear that ducks will not be conserved or restored by the establishment of a public hunting area. The Commission, in its control of wildlife, may include ‘hatcheries, sanctuaries, refugees, reservations.’ A public shooting ground could hardly be likened to any of these. ’ ’
The effect of our holdings involving Amendment No. 35 is that eminent domain may be invoked by the Commission when the purpose is within the purview of the Amendment, i.e., conservation; but eminent domain cannot be invoked by the Commission when the purpose is to create recreational facilities, hunting grounds, fishing lakes, etc.
In the present case the Commission is seeking to exercise eminent domain for the purpose of constructing a lake. The question is whether the primary purpose in the case at bar is to conserve fish or to create a lake for public fishing and recreation. I think the primary purpose of the lake is to create a recreational facility where the public may fish; and I do not believe the primary purpose is to restore and conserve wildlife. I will not review the testimony at length: it would serve no useful purpose. But after studying the entire record I am firmly of the opinion that the primary purpose of this project is to create a recreational facility. Eminent domain should be allowed by the courts only when it is clear that the State is taking the property to fulfill clearly allowed constitutional grants. Such showing has not been made in the case at bar, as I see the record. Therefore, I respectfully dissent from the majority holding.