ELK HERDS ‑- LIMITATION OF SIZE ‑- POWERS OF LEGISLATURE TO REGULATE

ELK HERDS ‑- LIMITATION OF SIZE ‑- POWERS OF LEGISLATURE TO REGULATE.

An act limiting the size of an elk herd in a certain area of the state is not repugnant to the privileges and immunities clause of the state constitution since it is the universality of the operation of the law on all persons of the state with reference to the subject matter that determines its validity as a general and uniform law, rather than the extent of territory in which it operates.

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                                                                   March 9, 1953 

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County
Bank of Commerce Building
Ellensburg, Washington                                                                                                              Cite as:  AGO 51-53 No. 492

 Dear Sir:

             You have inquired whether or not the state legislature was within its constitutional rights in enacting legislation limiting the size of the elk herd in a certain portion of Yakima and Kittitas counties to three thousand in number.

             It is our conclusion that it was.

                                                                     ANALYSIS

             It is the settled law of this state, in accord with the common law and the statutory law of most other jurisdictions, that the state owns the wildlife, including game and fish, within its own boundaries in its sovereign capacity.  SeeState v. Tice, 69 Wash. 403.

             RCW 77.12.410 limits the size of the elk herd west and south of the Yakima river in Yakima and Kittitas counties to three thousand in number.  There can be little doubt that the state legislature was within its rights in so restricting the size of the herd.  There are numerous cases in which a statute regulating hunting and fishing within the state on a geographical basis has been upheld.

              [[Orig. Op. Page 2]]

            Our court has held this to be a proper exercise of police power and not within the prohibition of Article I, section 12, of the state constitution, which is known as the "privileges and immunities clause."  As early asHayes v. Territory, 2 Wash. Terr. 286, a statute restricting hunting in five western counties was held not to be repugnant to the privileges and immunities clause.  InBarker v. State Game Commission, 88 Wash. 73, a statute prohibiting the use of a certain type of gill net was upheld, in this language:

             "It has become the settled law of this state, in harmony with the rule prevailing in other states, that the classification of territory in game and fish laws preventing hunting or fishing in a portion of the state and permitting it elsewhere in the state is not a discrimination between, or a classification of, persons in violation of the state or Federal constitutional guaranties here invoked.  * * *"

             In McMillan v. Sims, 132 Wash. 265, our supreme court upheld the validity of an order of the State Fisheries Board creating a fish preserve in Skagit Bay, stating:

             "* * * in the regulation of and restrictions upon the taking of the fish from the waters of the state, the state is but dealing with its own property over which its control is as absolute as any other owner has over his property.  * * *"

             Our courts have used two tests in determining whether or not a particular statute is repugnant to the privileges and immunities clause of our state constitution: (1) Does the statute apply equally to all members of the same class; (2) is the classification reasonable?

             From the holdings of our court in the cited cases there appears to be no basis upon which we can say that the statute limiting the size of an elk herd in a particular area of the state will not survive both of these tests.

             An examination of the title to chapter 238, Laws of 1949, indicates the legislative intent to control damages caused by game animals.  Manifestly, this is a proper  [[Orig. Op. Page 3]] exercise of the police power by the state legislature.  It is also well settled that the legislature in delegating rule‑making power to the state game commission, or any other agency, has as a necessary corollary, the power to limit and restrict such agency's power by appropriate legislation.

 Very truly yours,
DON EASTVOLD
Attorney General 

ANDY ENGEBRETSEN
Assistant Attorney General