State, Ex Rel. Hyter v. Teater

368 N.E.2d 854, 52 Ohio App. 2d 150, 6 Ohio Op. 3d 118, 1977 Ohio App. LEXIS 6946

• Court: Ohio Court of Appeals
• Decided: February 4, 1977
• Docket: L-76-229
• Status: Published

Opinions

Potter, J.

This case involves the establishment of an open season for the hunting of mourning doves. The issue of whether there should be an open season for mourning doves has evoked a considerable emotional conflict between those who view the mourning dove, as a song bird whose plaintive refrain strikes a responsive note in the listener and those who view the dove as an object of sport with the dove having the advantage. However, as the trial court noted, the question of whether there should or should not be a season for hunting mourning doves is not a question before this court. The primary question is whether the legislature delegated to the chief of the division of wildlife, of the Department of Natural Resources of Ohio, authority to establish a season for the hunting of mourning doves in Ohio. 1 When the trial judge denied a temporary restraining order, he found that the proper procedure was followed to establish such a season. That finding is not challenged on appeal.

Plaintiffs prayer to permanently enjoin the hunting, shooting and killing of the mourning dove and for such other and further relief to which the plaintiff might be entitled under law and equity was denied. The trial court held as follows: sel and the law applicable to this case, the court finds that the division of wildlife of the Ohio Department of Natural Resources has broad rule making power and authority under current statutory framework. The division of wildlife has been delegated power and authority to set an open season for non-game birds. Under the provisions of ORC 1531.81 (sic), the chief of the division has the power to establish a season (sic) any wild animals provided however, he first secures approval of the wildlife council as provided for under ORC 153'3.07. In this case, such approval was properly obtained.”

“Upon consideration of the facts, the briefs of coun-

From this judgment, the plaintiff appeals and assigns the following error:

“The trial court erred in ruling that (a) the legislature delegated power and authority to set seasons for non-game birds (b) that the chief of the division has authority to regulate the taking and possession of mourning doves (c) that the chief and the wildlife council have ousted the legislature from its historical authority to distinguish between game and non-game animals.”

"We find the above assignment of error in part well taken, reverse the trial court and grant the injunction prayed for.

It is asserted that this is a case of first impression. The wildlife division established the mourning dove season by erroneously extending the effect of the language found in the amendment to R. C. 1531.08, effective January 1, 1974. This section in pertinent part reads as follows:

“The chief [of the division of wildlife] may regulate:

“(A) Taking and possessing wild animals, at any time and place or in any number, quantity, or length, and in any manner, and with such devices as he prescribes • # •

The above section was a part of an act amending many sections of R. C. Chapter 1531 and Chapter 1533 and was captioned: “An Act to protect endangered species of wildlife.” This ease involves statutory construction and in construing the statute we must apply the recognized rules of construction. One of the rules for statutory construction is as follows:

“* * # [I]f on the face of a statute there is doubt as to its meaning, and the doubt can he removed and the intent gathered by reference to cognate provisions, it is the duty of the courts to use them in aid of construction to learn and carry out the legislative intent. Thus, a particular statute or section should be construed in the light of, with reference to, or in connection with other statutes and sections, especially where the provisions, though separated in the Code were formerly part of but one section of an act or of the same act. It follows that all such sections and statutes are to be considered and compared with reference to the entire system of which all are parts. A code of statutes relating to one subject is presumed to be governed by one spirit and policy, and intended to be consistent and harmonious, and all of the several sections are to be considered in order to arrive at the meaning of any part, unless a contrary intent is clearly manifest.” See 50 Ohio Jurisprudence 2d 197, Statutes, Section 221.

A review of R. C. Chapter 1531, entitled Division of Wildlife, and R. C. Chapter 1533, entitled Hunting and Fishing, reveals too many contradictory and inconsistent sections to permit the holding that the legislature intended to delegate to the chief of the division of wildlife authority to establish a new species for hunting.

R. C. 1531.08 formerly read as follows:

“The council [of the division of wildlife] may regulate: (A) Taldng and possessing clams or mussels, crayfish, aquatic insects, fish, frogs, turtles, and game, at any time and place or in any number, quantity, or length, and in any manner, and with such devices as he prescribes # # # J?

It may reasonably be argued that the legislature was substituting the generic words, “wild animals” for the prior listing of specific species.

In comparison with other sections of the chapters, we find that R. C. 1533.02 contains detailed provisions relative to open seasons and bag limits for game birds, fish and fur-bearing animals. R. C. 1531.01 (S) defines game birds as follows:

“ ‘Game birds’ includes pheasants, quail, ruffed grouse, sharp-tailed grouse, pinnated grouse, wild turkey, Hungarian partridge, Chukar partridge, woodcocks, black-breasted plover, golden plover, Wilson’s snipe or jack-snipe, greater and lesser yellowlegs, rail, coots, gallinules, duck, geese, and brant.”

R. C. 1531.01 (T), defines nongame birds as follows:

“ ‘Nongame birds’ includes all other wild birds not included and defined as game birds.”

Webster’s Third New International Dictionary (1971) defines “game bird” as “a bird made legitimate quarry for hunters by state or other law.” See also 38 Corpus Juris Secundum 2, Game, Section 1. In effect, the order of the chief established the mourning dove as a game bird. This is a usurpation of legislative authority, since game and nongame birds have been clearly defined in E. C. 1531.-01.

Further, in construing R. C. 1531.08, it is also necessary to consider a code section that antedates it, R. C. 1533.07, which reads in pertinent part as follows:

“Protection afforded nongame birds.

“No person shall catch, kill, injure, pursue, or have in his possession, either dead or alive, or purchase, expose for sale, transport, or ship to a point within or without the state, or receive or deliver for transportation any bird other than a game bird, or have in his possession any part of the plumage, slrin, or body of any bird other than a game bird, except as permitted in Chapters 1531. and 1533. of the Revised Code, or disturb or destroy the eggs, nest, or young of such a bird.”

This section is analogous to the former G. C. 1409, which read as follows:

“No person shall catch, kill, injure, pursue, or have in his possession either dead or alive, or purchase, expose for sale, transport or ship to a point within or without the state a turtle dove or mourning dove., sparrow, nut-hatch, warbler, flicker, vireo, wren, American robin, catbird, tanager, bobolink, bluejay, oriole, grosbeck or redbird, creeper, redstart, waxwing, woodpecker, humming bird, killdeer, swallow, bluebird, blackbird, meadowlark, bunt ing, starling, redwing, purple martin, brown thresher, American goldfinch, chewihk, or ground robin, pewee or phoebe bird, chickadee, fly-catcher, gnat catcher, mouse-hawk, whippoorwill, snowbird, titmouse, gull, eagle, buzzard, or any wild bird other than a game bird. No part of the plumage, sldn or body of such birds shall be sold or had in possession for sale.” (Emphasis added.)

To hold that the recent amendment to E. C. 1531.08 modifies E. C. 1533.07, under which mourning doves have until now been protected since they are not game birds, and numerous other sections of the code, for example E. C. 1533.191 in regard to the purchase of game birds for dog training, 2 is to extend the implication of E. C. 1531.08 beyond its scope. If the legislature had intended as a modern concept, to delegate the authority to name species for hunting, in contradiction to its historical practice of doing so by legislative action, it easily could have done so. For example, in 1957, R. C. 1531.01(S) was amended to include the wild -turkey as a game bird. As to the early controversy relative to quail, see 1925 Ohio Atty. Gen. Ops. 775, No. 3032. Further, such a distinct break from the historical precedent established by the legislature would not have occurred in a relatively minor amendment to a single paragraph in an existing section. Such a break from historical precedent would have been in clear and unmistakable language. If the legislature desires such a change it may still so speak. See R. C. 1531.02, wherein the legislature has previously declared that the ownership of and the legal title to all wild animals is in the state and the state holds such title in trust for the benefit of all the people.

We further find after an examination of R. CL 1531.06 3 that it was not the present intent of the legislature to break from its historical precedent of regulating the taking and possession of wild animals on state owned lands and waters. The- wildlife division never used R. C. 1531.06 as authority to establish an open season for the hunting of nongame birds on state lands. Whereas R. C. 1531.06 is restricted to lands and waters owned and controlled by the state, R. C. 1531.08 has a broader scope. However, the intent of both sections is to protect and restrict the taking of species.

State v. Switzer (1970), 22 Ohio St. 2d 47, while holding' that R. C. 1531.08 was not an unlawful delegation of legislative power, did not interpret the statute as providing that the chief of the division of wildlife could establish an open season for a new species, but rather as reflecting the legislature’s intent that wild animals are worthy of state regulation and that their protection and preservation merits and requires constant supervision by persons qualified to implement that purpose. In referring to State, ex rel. Sofeico, v. Heffernan (1937), 41 N. M. 219, 67 P. 2d 240, reference is made to such changing factors as drought, flood, etc., which, coupled with an open season, might exterminate these species. The thrust of the Switzer decision was to permit reasonable regulations under delegated authority that would extend protection to wildlife, not reduce it.

For the foregoing reasons, we find that the chief of the división of wildlife did not have authority to declare an open season for the mourning dove and to this extent the appellant’s assignment of error is well taken.

The judgment of the Court of Common: Pleas of Lucas County is reversed and in rendering the judgment the trial court should have rendered, we order, adjudge and’ decree that in the state of Ohio all persons are permanently enjoined from the hunting, shooting and killing of the mourning dove.

Judgment reversed.

Brown, P. J., and Wiley, J., concur.

Wiley, J., retired, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.

1 By way of comparison, we note that in seventeen states (Alabama, Alaska, California, Colorado, Georgia, Idaho, Massachusetts, Nevada, North Carolina, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington, West Virginia, Wyoming), the state fish and game commission or its equivalent may, by promulgating rules and regulations, designate and classify wildlife species as game or nongame. In other states, the statutory language is ambiguous, but it appears that in twenty-one states (Arizona, Arkansas, Florida, Hawaii, Kansas, Illinois, Indiana, Iowa, Kentucky, Maine, Michigan, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, South Carolina, Utah, Wisconsin) the fish and game commission has only enumerated administrative, regulatory, or enforcement powers, vhich do not Include the power to designate game and nongame species. In some of these states, however, there are endangered species acts which authorize either the commission or a separate environmental agency to designate nongame and/or endangered species, and subsequently to modify the list by addition or deletion. In an additional eleven states (Connecticut, Delaware, Louisiana, Maryland, Minnesota, Mississippi, Missouri, New York, Oregon, South Dakota, Vermont), the commission is given broad general powers, but not specifically the power to designate. For these states it is not possible to determine the scope of the commission’s power from the statutory language alone.

Further, doves generally or mourning doves specifically are listed as game birds or migratory game birds in 25 states (Arizona, California, Colorado, Delaware, Florida, Illinois, Indiana, Iowa, Louisiana, Maryland, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia). They are protected by reason of omission from the list of statutory game birds in fourteen states (Arkansas, Connecticut, Hawaii, Kentucky, Maine, Michigan, Montana, Nebraska, New Jersey, New York, North Dakota, Wisconsin, Wyoming). They are specified by name as protected in three states (Idaho, Kansas, Minnesota). Seven states do not list game species by name (Alabama, Alaska, Georgia, Massachusetts, Missouri, Vermont, Washington).

2

R. C. 1533.191 reads in pertinent part:

“Organized field trial clubs or individuals may purchase domestically raised quails, chukar partridges, pheasants, black and mallard ducks, and other game birds from licensed breeders, and may shoot quails, chukar partridges, pheasants, ducks, or other game birds and common pigeons that are approved by the division of wildlife at any time during the daylight hours, only on grounds designated by the division of wildlife as ‘dog training grounds,’ and only as provided in this section and under such additional regulations as the chief of the division of wildlife may prescribe * *

3 “‘The chief may make and issue orders benefiting wild animals, fish or game management, preservation, propagation, and protection, outdoor' and nature activities, public fishing and hunting grounds, flora and fauna preservation, and regulating the taking and possession of wild animals on any lands or waters owned or leased or under division supervision- and control, and may for a specified period of years prohibit or recall the taking and possession of any wild animal on any portion of such lands or waters. The division shall clearly define and mark the - boundaries of the lands and waters upon which the taking of any wild animals is prohibited.”