The Charles Mix new era. (Wagner, Charles Mix County, S.D.) 1???-1911, 1910-09-09
GAME Law LEGAL
THE ATTORNEY GENERAL GIVES
OPINION ON PART OF LAW
QUESTIONED
LICENSE CLAUSE UPHELD
The Sioux Falls Attorney Who Ques-
toned the Constitutionality of
License Feature May
be Shown

WaAaSo w otaSC uouaC Jan"
croft An opinion upon the contention
of Joe Kirby Of Sioux Falls, that the
game law Of South Dakota is uncon-
stitutional on the ground that 1t
charges a nonresident of the state
more for a license to hunt wild game
in this state than it does a resident.
The opinion of the attorney gener-
al which sets Mr.. Kirby's contention
at naught, reads as follows:
State of South Dakota, ONCE of At
torney General, August q, 1910.
Hon. w. F. Bancroft, State Game
Warden, WATERFOWL, S. Dear Sir:
I have your favor and inquiry of the
26th inst. You state that a claim by
an attorney of the state that the 1909
game law (Chap. 240 of the session
of 1909) is unconstitutional and that
this attorney Is advising hunters not
to take out licenses and that he
threatens to hunt himself without TAX
ing out a license. You ask for my
opinion as to the constitutionality of
the law.
Answering the inquiry, I would first
state that 1t would require a very
voluminous brief in order to pass
upon the constitutionality Of each
and every section of the law as
against any possible constitutional
objection that might be raised. You
enclose a newspaper clipping, how
ever, that would seem to Indicate that
the opinion of the attorney mention
ed, as to the unconstitutional;ty OF
the law, is based upon the ground
that the. law discriminates between
residents and none-residents of the
state as to the amount OF license re-
quired.
II this newspaper correctly sets
forth the views of the party mention
ed, / can give 1t as my opinion un-
reservedly that such view of the law
Is not tenable.
Authorities on the subject Of the
police power OF the state agree gen.
orally that q distinction may be
made between residents and non-res-
ide1ts of the state Is to the right to
hunt or fish within the boundaries OF
a state. This rule is laid down in IA
Am. 81 Eng. Ency. OF Law, Vol. IA, p.
661.
The same doctrine is announced In
Cyc. Vol. 10, at page 1908, and in
Freund on Police Power. at Sec 712.
In. the case of Allen VS.. Wyckoff, As
N. J. Law, 80 (57 Am. Rep. 54S) it is
distinctly held that q state law pro-
viding for greater restrictions and
severer penalties upon, non-residents
of the state, than upon residents, for
hunting game and game fish, is not
contrary to the 14th amendment to the
federal constitution which declares
that no state shall abridge the priv
ilege or immunities of citizens In the
United States, or deprive any person
within its jurisdiction of the equal
protection of the laws.
The case of Cummins vs. People,
211 III. 392 C71 N. e. 1881 distinctly
holds that q state may impose a
greater license upon non-residents for
hunting game, than 1t imposes upon
residents of the state.
This matter has been up before the
supreme court of the United States,
| and that court held that a state could
under the police power, absolutely
prohibit the taking Of game or fish
within its borders by non-residents OF
the state.
McCreaQy VS.. virginia, u u. .. SJI.
So far as my research has gone, this
case has beer cited with approval in
the later decision of the United
States supreme court and this hold
ing has been steadily adhered to.
II the imposition of a greater IL
cense upon non-residents, than is re-
CURED of residents, Is not in violation
OF the equal rights clause of the fed
eral constitution, 1t certainly would
not be In violation of the same clause
in our state constitution.
/ therefore give 1t as my opinion
u~nreservedly that Chap. 240 of the
session laws Of 1909t the game law
is constitutional and valid as against
the objection above noted. And until
some other point is suggested. which
I have not as yet considered, l give II
as my opinion that the entire law Is
constitutional and valid and that
prosecution should be brought with
out fear or favor against each and
every person who attempts to violate
any of the provisions Of that law
Yours very truly. IS. A. Clark,
Attorney General.