State Ex Rel. Fish & Game Commission v. District Court

84 P.2d 798, 107 Mont. 289, 1938 Mont. LEXIS 82

• Court: Montana Supreme Court
• Decided: November 30, 1938
• Docket: No. 7,871.
• Status: Published

Opinions

MR. JUSTICE ANGSTMAN

delivered the the opinion of the court.

On May 10, 1938, the Fish and Game Commission opened the season on elk in certain parts of Flathead county from September 15th to November 30th. On September 2 certain individuals applied to respondent court for a writ of prohibition restraining the commission from opening the season, and obtained a temporary order restraining the opening of the season earlier than October 15, as provided in section 3696, Revised Codes. The commission, relators here, then applied to this court for a writ of supervisory control to annul the temporary restraining order issued by respondent court.

The proceeding raises the question of the right of the commission to enlarge the open season on elk beyond the provisions of section 3696, which provides that “the open season for elk shall begin October fifteenth (15th) and end November fifteenth (15th) both dates inclusive, of each year. The closed season for elk shall begin November sixteenth (16th) of each year and end October fourteenth (14th) of the following year, both dates inclusive.” Section 3696 was last amended in 1931.

The commission bases its right to lengthen the open season on section 3653, which was amended in 1935. That section, as then amended, provides that the commission “shall have authority to fix seasons and bag limits, or shorten or close seasons on any species of game, bird, fish, or fur-bearing animal, in any specified locality or localities or the entire state, when it shall find, after said investigation, that such action is necessary to assure the maintenance of an adequate supply thereof. The statutes now governing such subjects shall continue in full force and effect, except as altered or modified by rules and regulations promulgated by the commission.”

To arrive at the legislative intent in making these amendments, it is important to examine the state of the laws as they were prior to the amendments. Section 3681, which has been in effect for many years, defines “open season” as that time when game, birds and fish, and fur-bearing animals may be lawfully taken. It defines “closed season” as the time when they may not be lawfully taken. Thus, the law now and for many years recognizes two seasons — one the open season, and the other the closed season.

Section 3696 was in full force and effect at the time of the amendments to section 3653. Amongst other provisions it fixed the open season for elk in portions of Ravalli county and then gave the commission authority to “shorten the open season in such territory.” It also empowered the commission “to provide limited open seasons” in certain counties designated as the “preserve for elk.” It also provided for the open season for elk in Park county and gave the commission authority “to shorten such season and declare said Park county closed to the hunting or killing of elk at any time during the open season. ’ ’

Section 3696.1, after fixing the open season on elk in Teton county, gave authority to the commission “to shorten such season. ’ ’ By section 3696.4, being Chapter 1, Laws of 1935, which was enacted at the same session as the amendments to section 3653, the open season was fixed in Park county and authority vested in the commission “to shorten such season” and declare it closed “at any time during the open season.” Thus, prior to the amendment of section 3653, the legislature was careful to provide that the commission might shorten the “open season.”

It is significant that the legislature in the amendment of section 3653 did not limit the commission’s authority to fix “open seasons, ’ ’ nor did it limit the commission to the power to shorten ‘ ‘ open seasons. ’ ’ From the broad language used in the amendment, it must have been the intention of the legislature to authorize the commission to shorten “closed seasons” as well as “open seasons.” To shorten a closed season necessarily lengthens the open season.

We can understand that in certain areas it might be necessary to have some elk killed in order to assure sufficient forage for those remaining. The legislature, by the broad language of the amendment, evidently intended to place the entire matter in the hands of the commission. This conclusion is strengthened by the fact that the legislature still continued in the Act as amended the clause, “Said commission shall, in addition to the powers heretofore granted, have such other and further powers as may be necessary to fully carry out the purpose and intent of all the laws pertaining- to fish, game, and fur-bearing animals, game and non-game bird propagation, protection, conservation and management of this act; * * * . ”

The fact that statutes fix the seasons on elk is not of controlling-moment, because section 3653 expressly provides that “the statutes now governing * * * shall continue in full force and effect, except as altered or modified by rules and regulations promulgated by the commission.” It is plain that the legislature intended to give the commission authority to adopt rules and regulations amounting to a modification of existing statutes.

The act authorizes the action of the commission complained of; hence the restraining order was improper. The writ applied for will issue to annul the restraining order and to direct, the respondent court to dismiss the proceedings before it.

Mr. Chief Justice Goddard and Associate Justices Anderson and Stewart concur.