Original proceeding in Mandamus. Alternative writ made peremptory.
Mr. F. E. Flynn, United States Attorney, and Mr. C. A. Edwards, his Assistant, for Petitioner.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, and Mr. Lin Orme, Jr., his Assistants, for Respondent.
[53 Ariz. 305] LOCKWOOD, J.
Cecil Begay, hereinafter called petitioner, applied to this court for an original writ of mandamus against W. H. Sawtelle, as state game warden of the state of Arizona, hereinafter called respondent, asking that the latter be ordered to issue to him a resident general hunting and fishing license, under the provisions of chapter 44, Session Laws of 1935.
Petitioner alleged as grounds of action that he was a citizen of the United States and of the state of Arizona, and of the Indian race, being a member of the Navajo tribe, and a ward of the government of the United States, under the charge of an Indian agent, residing upon a government Indian reservation within the state of Arizona; that he was born in Arizona, was over the age of twenty-one years, and had continuously resided in the state for more than a year. On March 10, 1938, he made application to respondent for a resident general hunting and fishing license, tendering the fee of $3.50 provided by law for such license. The respondent, however, refused to issue the license for the reason that he was prohibited from doing so under section 2 of chapter 44, supra, which reads as follows:
"Indians Prohibited From Hunting Or Fishing. It shall be unlawful for any Indian, who is a ward of the federal government, to take any game or fish in this state when off the government reservation to which he has been assigned, and no license shall be sold to any such Indian."
[53 Ariz. 306] Thereafter this proceeding was started.
Petitioner admits that he falls within the prohibition of section 2, supra, but contends that such section is unconstitutional in that it violates the Fourteenth Amendment to the Constitution of the United States, (U.S.C.A., and section 13 of article 2 of the Constitution of Arizona.)
Respondent demurred generally to the petition, contending that the section was a reasonable exercise of the police power, and the matter was submitted to this court upon the petition and the demurrer thereto.
The question involved is one of law, and is whether section 2, supra, violates the state and federal Constitutions in that it denies to petitioner the equal protection of the law, and refuses to him privileges granted on the same terms to other citizens.
Under the common law, the title to game animals and fish was held to be in the state for the use and benefit of its citizens, and the killing or taking and use of such game was subject to governmental control and regulation in the interest of the common good. These principles passed to America with the rest of the common law of England and, except as changed by statute or contrary to our customs or conditions, are the law of Arizona. Section 3043, Rev. Code 1928. The legislature of Arizona may, therefore, make such provision as it thinks proper for the preservation and conservation of the game animals and fish of the state, by regulating the taking or killing and use of any and all kinds of game in any part of the state, and during any period, and upon any reasonable terms, so long as such regulation does not deny due process of law and the equal protection of law guaranteed to all persons by the state and federal Constitutions. In so doing, the legislature may make classifications of persons in connection with the regulations, [53 Ariz. 307] but such classification must have some reasonable relation to the subject and purpose of regulation, and cannot be arbitrarily and unjustly discriminatory. Harper v. Galloway, 58 Fla. 255, 51 So. 226, 19 Ann. Cas. 235, 26 L.R.A. (N.S.) 794; 27 C.J., p. 946 et seq.
The question then is whether it is a reasonable regulation, in the interest of the preservation of game and fish, that members of the Indian race, who are wards of the federal government and residing upon federal reservations, should be refused the privilege of hunting and ...