# Farris v. Ark. State Game & Fish Comm.

> Supreme Court of Arkansas · February 24, 1958 · 228 Ark. 776

URL: https://www.frixlaw.com/law-library/cases/9762791

## Case

- **Full name:** Farris v. Arkansas State Game and Fish Commission
- **Court:** Supreme Court of Arkansas
- **Decided:** February 24, 1958
- **Citations:** 228 Ark. 776; 310 S.W.2d 231; 1958 Ark. LEXIS 623
- **Precedential status:** Published
- **Opinion:** Dissent by Ward
- **Judges:** Nabors Shaw
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762791

## Opinion text

Paul Ward, Associate Justice, dissenting. My reasons for dissenting to tlie opinion of the majority may be grouped under the following headings: One, Amendment No. 35 did not give the Commission any authority over privately produced fish; and two, the Commission’s power to regulate does not include the power to destroy.
Very briefly, this litigation arose as follows: Appellants filed a complaint in the Chancery Court of Pulaski County stating that they were about to take from their own privately owned reservoirs fish [meaning, when herein used, the, kind of fish forbidden to be sold] and sell them at private or public sale, but that the Commission, unless enjoined, will subject them to prosecution and will confiscate their fish. The Commission answered: Unless enjoined it will prevent appellants from selling said fish; it is necessary to confiscate (emphasis supplied) said fish to protect the fish in the waters of the state, and; if the sale of game fish from private ponds is permitted, it will be impossible for the Commission to police and prevent the sale of game fish taken from public waters, causing the stock of game fish in public waters to be depleted.
From the above it is clear, of course, that the Commission is not attempting to reg%date but to destroy—
One. To begin with, the Commission, in promulgating rules relative to the fish in question, is dealing with property over which it was given no jurisdiction by Amendment No. 35. I believe this statement cannot be successfully controverted. Sec. 1 of the amendment defines the scope of the Commission’s jurisdiction in this respect. It includes control over “birds, fish, game and wildlife resources of the state.” Even the majority opinion recognizes that such fish is not a resource of the state, for it states: “. . . this [speaking of such fish] is a property right as much as any other distinct right incident to their ownership of the soil.” So, if such fish belong to the individuals who raise them it must follow, as day follows night, that they do not belong to the state.
Two. ■ In view of what was pointed out above, it follows that the only power the Commission could have over such fish would be the same right the state had [before the passage of Amendment No. 35] — the right to regulate. The right which the state had is clearly pointed out in State v. Mallory, 73 Ark. 236 [at page 248], 83 S. W. 955 . It was there said: “We therefore conceive it to he settled by authority and by long recognition in the law that the owner of land has a right to take fish and wild game upon his own land, which inheres to him by reason of his ownership of the soil. It is a property right, as much as any other distinct right incident to his ownership of the soil. It is not, however, an unqualified and absolute right, but is hounded by this limitation, that it must always yield to the State’s ownership and title, held for the purposes of regulation and preservation for the public use.’’ (Emphasis supplied.)
I consider it fundamental to a correct disposition of the question under consideration to recognize the importance of protecting private property — a matter which the majority seems to have-overlooked. Art. 2, § 22 of our Constitution says “The right of property is before and higher than any constitutional sanction, and private property shall not be taken . . . without just compensation. ’ ’
Since the Commission makes no pretense of compensating appellants, it is important to examine the situation to ascertain if the Commission is actually taking appellants ’ property. It is, of course, not denied that the Commission assumes the power to prevent appellants from selling their property or otherwise disposing of it for profit. Under the law this amounts to a taking. It is a rule so well established by the courts as to require no citations that the right to own property carries with it the right to dispose of it.
It is my view therefore that the maximum right the Commission has in this case is to regulate the sale of game fish raised by appellants. From the standpoint of simple justice there is a grave responsibility upon the Commission to exert every reasonable effort, by the promulgation of strict regulations, to make it possible to allow the growing industry of fish farming to continue in business on a profitable basis. At least the Commission should be willing to make every possible effort in that direction. If the regulations provided in Act 65 of 1957 are not sufficient, the Commission has ample power to promulgate additional ones. If, however, after applying all reasonable regulations, still some damage results to the game fish in the public streams, that result cannot justify the taking of private property without just compensation in violation of the Constitution.
Incidentally I do not at all agree with the majority’s announcement that the legislature has been stripped of all legislative authority except to appropriate money for the Commission and to increase resident hunting and fishing licenses. This conclusion of the majority is apparently based on a sentence in Amendment No. 35 which reads: “All laws now in effect shall continue in force until changed by the Commission.” This language is found in Section 8 of the Amendment, as pointed out by the majority, and clearly has reference only to the powers given the Commission by that section. The majority view ignores the language in Section 1, which gives the Commission the power to administer “. . . the laws now and/or hereafter pertaining thereto.” (Emphasis supplied.) This language, to my mind, clearly implies that the people meant for the legislature to retain some power.
To my mind it is a matter of grave concern and importance that the majority opinion has now constituted the Fish and Game Commission an independent law making body.
I submit that, in the name of simple justice and according to the clear letter and spirit of the law, this case should be reversed and remanded to the trial court with directions to order the Commission to promulgate reasonable rules that will allow the growing industry of fish farming to continue as a profitable business. It is common knowledge that there is now considerable nation wide agitation in favor of fish farming, and Arkansas is most favorably situated to profit by such an industry.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762791. Public record. Not legal advice.