Montana Attorney General Opinion 15-3

Opinion No. 3 Fish and Game-Game Animals, Kill- ing for Destruction of Pl'ivate Property. HELD: The general language con- tained in Section 3653, R. C. M., 1921, as amel1ded by Chapter 192, Laws of 1925, does not give power to the Com- mission to kill elk where trespassing on private land, and must be construed as applying merely to the performance of additional acts similar in character to those authorized. January 5, 11)33. I have your letter requesting an opin- ion on the following question: "Has the :Montana Fish and Game Commisl';ion the authorIty, under Section 3653 H. C. M., as amended by Chapter 192 session laws of 1925, to kill or cause to be killed game animals where it is shown they are destroying private property in certain localities and causing hard- ships to farmers and ranchers, to-wit: Destroying fences and hay stacks?" In explanation of your request, you ha ,e submitted with your request, a letter from Mr. C. C. Howan, attorney at law of Hed Lodge, detailing the facts upon which your request is made. From Mr. Rowan's letter, it appears that a band of elk released a few years ago by the Re<1 Lodge Hod and Gun Club and the Fish and Game Commission in Carbon County, are doing the damage com- plained of by trespassing upon private ranch lands and destroying fenc'CS and eating and destroying stacks of hay. Section 3653 as amended, after enu- merating the powers and duties of the fish and game commission, ends with the following provision: " ...... * Said commission shall, in addition to the po,yers heretofore granted, have such other and further powers as may be necessary to fully carry out the purpose and intent of all the laws pertaining to fish, game, and fur-bearing animals, game and non-game hird propagation, protection, conservation and manage- ment of this act." It is suggested that this general provision gives the commis- sioners power to kill elk, if necessary, to stop the trespass. . The statutory rule of construction where general words follow an enu- meration of particular subjects, is that such words must be held to include only such objects or things as are of the same general character of those specifically enumerated. (Lewis' Suth- erla nd on Statutory Construction, 2d ed., sec. 422). Page v. :'\ew York Healty Co., 59 Mont. 305; Section 10520, R. C. )1., 1921. The special powers amI auties of the fish and game commission nre contained in Section 3653, but nowhere is there any authority gi '-en in this section, to kill elk where they are cOlllmitting a trespass. I do not find tn the law re- lating to fish, game and fur-bearing animals any authorit~' conferred upon the commission to .kill or authorize the killing of animals protected by law that are doing damage to private property. except in the cases of muskrat and hea '-er. (See sections 3704-3722, H. C. )L, 1921). Under section 3697, it is unlawful to shoot, kill, take or cause to be shot, killed. taken or captured, or to attempt to shoot, kill, take or capture any elk or deer within the boundaries of any incorporated, or unincorporated city or town of the state. There are other spe- cific proYisions prohibiting the killing of elk, except in open season. It is therefore my opinion that the general language contained in section 3653 does not giYe power to the com- mission to kill elk ,,,here trespassing on priYate land, amI must be construed as appl)ing merely to I he performance of additional acts similar in character to those authorized.