Winslow v. Fleischner

COSHOW, J.

The first proposition to be determined on this appeal is the right of the plaintiff to maintain this suit. The defendants, who are the appellants, contend that the plaintiff is without capacity to sue. This contention is based upon the well-established law in this state that, as against public officers, the drastic remedy of injunction can be invoked only by the state acting through its proper law officers where only public or political rights are involved. This contention is supported by Sherman v. Bellows, 24 Or. 553 ( 34 Pac. 549 ), State ex rel. v. Lord, 28 Or. 498, 527 ( 43 Pac. 471 , 31 L. R. A. 473), State ex rel. v. Dunbar, 48 Or. 109 ( 85 Pac. 337 ), Friendly v. Olcott, 61 Or. 580 ( 123 Pac. 53 ), and numerous other cases.

The plaintiff contends that he has a property right in hunting, which is about to be destroyed by the order of the Game Commission; that said order is void, because, in excess of the authority and power conferred upon the commission.

*561 The law in this state, regarding the right of an individual to invoke the equitable jurisdiction of the courts to enjoin the enforcement of an invalid law, ordinance or order, is well established. In Friendly v. Olcott, 61 Or. 580, 586 ( 123 Pac. 53, 55 ), Mr. Justice Burnett, speaking for this court, quotes with approval from State ex rel. v. Lord, 28 Oil 498 ( 43 Pac. 471 , 31 L. R. A. 473), as follows:

“The judiciary acts not upon its own motion, but only when some suitor duly authorized by law presents in due form a cause appropriate for its cognizance. Its machinery may be set in motion by private suitors in some form or other in all cases where civil or property rights are being invaded or intrenched upon to their injury or damage, be the suitor ever so humble or the injury encountered ever so small; but in all cases of purely public concern affecting the welfare of the whole people of the state at large the court’s action can only be invoked by such executive officers of the state as are by law intrusted with the discharge of such duties.”

If, then, the plaintiff is injured in his person or property by the order of the Game Commission claimed to be void, he is entitled to maintain this suit.

The case of Bingham v. Salene, 15 Or. 208, 213 ( 14 Pac. 523, 525 , 3 Am. St. Rep. 152 ), is the leading case in this country upon the nature of the right to hunt. It is there held:

“That the right to enter upon lands of another to cut grass, for pasturage, for the purpose of hunting, or for fishing in an unnavigable stream, is an interest in the land, or a right to take a profit in the soil. (Authorities cited.) A grant of a right to kill and take game on the lands of the grantor is a grant of an interest in the land itself and within the Statute of Frauds.”

*562 This case is cited with approval in Isherwood v. Saline, 61 Or. 572 ( 123 Pac. 49 , Ann. Cas. 1914B, 542, 40 L. R. A. (N.'S.) 299); Salene v. Isherwood, 55 Or. 263 ( 106 Pac. 18 ); Hume v. Rogue River P. Co., 51 Or. 237, 244 ( 83 Pac. 391 , 92 Pac. 1065 , 96 Pac. 865 , 131 Am. St. Rep. 732 , 31 L. R. A. (N. S.) 396), and is the support of several text-hooks announcing the same principle.

“As a general rule every person has the right of hunting and taking game in any place where he has a right to be, so long as he does not infringe upon or injure the rights of others, and in so far [as] he is not restricted by statutory regulations.” 27 C. J. 942, §3.

“As a general rule the exclusive right of hunting or taking game on land or waters owned by a private individual is in the owner of the land or his tenant, unless such right is acquired by another by grant or prescription. This is a property right in the owner of the soil but is subject to the right of the state to regulate and preserve the game for public use.” 27 C. J., 943, § 4. To the same effect in 19 Cyc. 988, 989, and 14 Cyc. 1142, 1143.

“Where an action at law will not give adequate relief and irreparable injury will result to the owner of a right of hunting, he may obtain an injunction to restrain an unlawful interference therewith.” 27 C. J. 945; 19 Cyc. 1002; McCready v. Virginia, 94 U. S. 391, 394, 395 ( 24 L. Ed. 248 ); Greer v. Connecticut, 161 U. S. 519 ( 40 L. Ed. 793 , 16 Sup. Ct. Rep. 600, see, also, Rose’s U. S. Notes); Sterling v. Jackson, 69 Mich. 488 ( 37 N. W. 845 , 13 Am. St. Rep. 405 ); State v. Mallory, 73 Ark. 236 ( 83 S. W. 955 ); Payne v. Sheets, 75 Vt. 335 ( 55 Atl. 656 , 3 Ann. Cas. 852, 67 L. R. A. 773).

The right to hunt ducks on the navigable waters of the state is a public right, to which any citizen may avail himself, subject to the game laws of the *563 ¡state: Ainsworth v. Munoskong Hunting & Fishing Club, 153 Mich. 185 ( 116 N. W. 992 , 126 Am. St. Rep. 474 , 15 Ann. Cas. 706, 17 L. R. A. (N. S.) 1236); Guaranty Realty Co. v. Recreation Gun Club, 12 Cal. App. 383 ( 107 Pac. 625 ).

1. The case of Payne v. Sheets, supra, is a well-considered case, and cites with approval Bingham v. Salene, supra. Indeed, all of the adjudicated cases are in harmony to the effect that the privilege of hunting animals or fowls, wild by nature and fit for food, is a property right.

2. Whether or not an injury is irreparable depends not upon the magnitude of the injury, but upon the completeness of a remedy in law. The rule is correctly stated in 22 Cyc. 763, 764, in this language:

“An injury to be irreparable need not be such as to render its repair physically impossible; but it is irreparable when it cannot be adequately compensated in damages, or when there exists no certain pecuniary standard for the measurement of damages * * due to the nature of the injury itself or to the nature of the right or property injured.” 32 C. J. 52, 53, § 3.

3. Mr. Justice Moore, in Spaulding v. McNary, 64 Or. 491, 497 ( 130 Pac. 391 , 130 Pac. 1128 ), announced the law in this state, regarding the writ of injunction against a prosecution under a void law, as follows:

“The rule is well established that if the threatened enforcement by prosecuting officers of a void statute will affect the property rights of a party, injunction will lie to prevent the menace from being carried into effect; and that the conduct of such officers, in the case indicated, are their personal acts in which the state is not involved.” (Citing a long list of authorities.)

Chan Sing v. Astoria, 79 Or. 411 ( 155 Pac. 378 ); note to Thompson v. Tucker, 6 Ann. Cas. 1012, 1013; *564 Portland Fish Co. v. Benson, 56 Or. 147, 150 ( 208 Pac. 122 ), citing with approval New Orleans Baseball Co. v. New Orleans, 118 La. 228 ( 42 South. 784 , 118 Am. St. Rep. 366 , 10 Ann. Cas., quoting from note in page 760, 7 L. R. A. (N. S.) 1014).

4. Both parties have strenuously argued the constitutionality of the act delegating to the Game Commission the authority under which the order assailed was issued.

In Elliott v. Oliver, 22 Or. 44, 47 ( 29 Pac. 1, 2 ), this court, speaking through Mr. Justice Lord, stated the rule regarding the action of this court, when the constitutionality of a statute is questioned, to be as follows:

“As a general rule a court will not pass upon a constitutional question and decide a statute to be invalid unless a decision upon that very point becomes necessary to a determination of the cause.”

This language is cited with approval in State ex rel. v. Lord, 28 Or. 498, 530 ( 43 Pac. 471 , 31 L. R. A. 473); Briedwell v. Henderson, 99 Or. 506, 513, 514 ( 195 Pac. 575 ), and cases there cited.

Our view of the case renders it unnecessary to determine the constitutionality of the statute. We shall assume it to be constitutional.

5. The part of the statute requiring construction is Section 8 of Chapter 66, Laws of 1921, and is set out in the statement above. The language bearing directly on the instant case is:

“The State Game Commission shall have power at any time to # # close any open season or open any closed season # * for such time as the State Game Commission may designate.”

The primary meaning of the word “any” as defined by Webster is" “one indifferently out of a num *565 ber.” 3 C. J. 231, § 3. Like all qualifying words, its meaning is largely controlled by its context. Its primary meaning in its singular sense is the sense in which it is used in Chapter 66, Laws of 1921. The context requires that meaning. It is closely connected with and related to the clause “for such time as the State Game Commission may designate.” The intention of the legislature was to empower the State Game Commission to close or open some designated season. The statute does not empower the commission to close or open hunting seasons for all or an indefinite time. The time during which the State Game Commission may close or open a season is a designated time. That time is to be a specific timé designated in the order of that commission.

6. An examination of the order assailed in this suit discloses that it is unlimited as to time and season. In effect it amends Section 10, Chapter 153, Laws of 1921. The language of the opening paragraph of the order admits of no other construction. It reads:

“That the open season as defined in section 10, chapter 153 of the General Laws of Oregon, 1921, for hunting, shooting, killing, taking and having in possession, alive or dead, the following-named game animals and game birds, respectively, in the State of Oregon, shall be as follows, to wit:

“The open season for deer with horns throughout the entire state shall be in and is hereby declared to be from September 10 to October 31 of each year, both dates inclusive.”

Then follows ten other paragraphs each dealing separately with a separate species of game. It does not embrace all of the game animals covered by said Section 10, but does most of them; and in some instances specifies the same dates as are specified in *566 said Section 10. Its language indicates that it is intended to make the change permanent, for the expression “for each year” is employed in every paragraph. The order amounts to legislation and is in excess of the power conferred upon the State Game Commission by said Chapter 66.

The orders of the State Game Commission are not required to be published as a statute. They must be published twice in a newspaper and be posted in such public places in each county as the State Game Commission may direct. If valid at all, the order is permanent. One desiring to exercise the right of hunting in twenty years from the date of the order could qualify under the laws of the state as published by authority of the state and, yet, by violating that order, be subject to a fine and imprisonment for violating, not the law of the land, but an order of the State Game Commission of which he had never heard and which he could not find,- because it had been published only in a newspaper and posted somewhere in the county twenty years before. Such a condition is repugnant to fundamental elements of our civilization, and contrary to our system of administering justice. The illustration may be extreme, but is within the scope of the order.

For these reasons, the order is beyond the power of the State Game Commission and void.

The decree of the Circuit Court is affirmed.

Affirmed.

McBride, C. J., and Burnett and Rand, JJ., concur.