I would rest my conclusion that the chief of the wildlife division cannot establish a hunting season for mourning doves on two factors.
1. Mourning doves are not "game birds" within the definition of game birds as statutorily defined in R. C. 1531.01(S). That mourning doves are nongame birds is reinforced by R. C.1531.01(T), which reads:
"`Nongame birds' includes all other wild birds not included and defined as game birds."
2. The Ohio General Assembly by a specific and unambiguous statute, R. C. 1533.07, set forth verbatim in the opinion of Judge Potter, has prohibited any person to "catch, kill, * * * or have in his possession * * * any bird other than a game bird * * *."
R. C. 1533.07, by reason of clear prohibitory language forbidding the taking or possession of nongame birds, which includes mourning doves, means that the chief of the wildlife division and the wildlife division cannot, by establishing a hunting season for mourning doves, permit what the legislature prohibits.
The defendants argue that although R. C. 1533.07 prohibits hunting and taking nongame birds, the division of wildlife has the power to permit and to regulate such hunting and taking of nongame birds by virtue of the phrase "except as permitted in Chapters 1531. and 1533. of the Revised Code," contained in R. C. 1533.07. Defendants argue that this exception refers to the power of the division of wildlife to establish hunting seasons for all
wild animals, which include nongame birds (see R. C. 1531.01 [Q] and [X]); the powers of the chief of the division of wildlife to control and to regulate the preservation, taking and possessing of wild animals as provided in R. C. 1531.08, particularly paragraph (A) thereof; and the chief's order, Chapter NRw-7, Rule 05, pertaining to a hunting season for mourning doves which was declared pursuant to R. C. 1531.08.
The interpretation of R. C. 1533.07 urged by defendants could well result in the wildlife division's permitting the hunting and killing of all nongame birds, the direct opposite of the object sought by the legislature by the enactment of R. C.1533.07, which was the protection of nongame birds. This interpretation urged by defendants is equivalent to saying that the chief of the wildlife division can completely nullify a state statute, R. C. 1533.07. Such a result is contrary to elementary principles of statutory construction. To interpret a law so as to make it wholly nugatory is the last extremity to which judicial construction should go. An interpretation should, if possible, be avoided under which the statute is nullified or made useless, inoperative, or without effect or significance. 50 Ohio Jurisprudence 2d, Statutes, Sections 226, 229 and 230.
An interpretation urged by defendants that the chief of the wildlife division may establish, under R. C. Chapter 1531, a hunting season for mourning doves resulting in their destruction is a misapplication of the pari materia rule. It is a fundamental rule of statutory construction that sections and acts in pari materia — that is, in relation to the same matter or object — should be construed together. 50 Ohio Jurisprudence 2d 189, Statutes, Section 216. The pari materia rule is not to be applied to effect a statutory construction contrary to the clearly manifested intent of the legislature. 50 Ohio Jurisprudence 2d 196, Statutes, Section 220. The interpretation of R. C. 1533.07 urged by defendants is clearly contrary to the manifest intent of the legislature — i. e., "protection afforded nongame birds," as stated in its heading or title.
Relevant thereto it should be observed that R. C.
Chapter 1533 is titled, Hunting; Fishing, and concerns primarily what hunters and fishermen are permitted to do or are prohibited from doing. An entirely different purpose is served by R. C. Chapter 1531, titled Division of Wildlife, which concerns itself primarily with the functions, duties and powers of the division of wildlife and its chief. The object and purpose of each chapter is different. 50 Ohio Jurisprudence 2d, Statutes, Sections 247, 253, 255 and 263.
An interpretation of R. C. 1533.07, concerned with "Protection afforded nongame birds," that would empower the chief of the wildlife division under R. C. Chapter 1531 to permit the entire destruction of all nongame birds is absurd and not a reasonable construction of the statute. It is a fundamental rule that the legislature intends to enact legislation which is reasonable and there is a presumption against absurdity in the enactment of the statute. 50 Ohio Jurisprudence 2d 221, Statutes, Section 238.
The title or heading of R. C. 1533.07 is "Protection afforded nongame birds." The title or heading of a statute is an aid and factor in correctly interpreting a statute, and should be utilized in determining its purpose and interpretation. 50 Ohio Jurisprudence 2d 243, 244, Statutes, Sections 259, 260.
R. C. 1533.07, with the heading "Protection afforded nongame birds," sets forth a specific purpose and is a specific statute, that is, a statute passed for a particular purpose as distinguished from a general purpose, and covering a particular subject matter. Cincinnati v. Bossert Machine Co. (1968),16 Ohio St.2d 76, certiorari denied 394 U.S. 998; Leach v.Collins (1931), 123 Ohio St. 530; 50 Ohio Jurisprudence 2d 20, Statutes, Section 10. By contrast, R. C. 1531.01, 1531.02, and1531.08 are statutes of a general purpose covering other subjects in general terms in addition to the subject matter covered by R. C. 1533.07. Cincinnati v. Bossert Machine Co.,supra; State, ex rel. Steller, v. Zangerle (1919), 100 Ohio St. 414. A specific statute (R. C. 1533.07) will prevail over the provisions of general statutes. (R. C. 1531.01, R. C. 1531.02, and R. C. 1531.08) Cincinnati v. Bossert Machine Co., supra;
50 Ohio Jurisprudence 2d 83, Statutes, Sections 104-107.
Consistent with the foregoing elementary principles of statutory construction, the phrase "except as permitted in Chapters 1531. and 1533. of the Revised Code," in R. C. 1533.07, refers only to statutes in those two chapters which specifically enumerate certain nongame birds as being exempt from the provisions of R. C. 1533.07, and does not encompass general or specific powers granted by the legislature to the division of wildlife or its chief, such as powers to prescribe hunting seasons for wild animals.
Ordinarily, a strict or narrow construction is applied to a statutory exception to the operation of a general law. Courts favor a general provision over an exception. Dalehite v.United States (1953), 346 U.S. 15; 73 American Jurisprudence 2d 463, Statutes, Section 313. An exception to a statute will be construed so as to avoid nullifying or restricting its apparent principal purpose and the positive provisions made to carry it out. As between an exception to a statute and its provisions, the language of which is mandatory, the provisions will control.Interstate Natural Gas Co. v. Federal Power Comm. (C. A. 5, 1946), 156 F.2d 949, affirmed 331 U.S. 682; Commonwealth LoanCo. v. Berry (1965), 2 Ohio St.2d 169; Andrianos v.Community Traction Co. (1951), 155 Ohio St. 47; Acme EngineeringCo. v. Jones (1948), 150 Ohio St. 423; 82 Corpus Juris Secundum 831, 889, Statutes, Sections 367 and 382.
A reasonable interpretation of the "exception" phrase in R. C. 1533.07 is that it does not modify the entire first paragraph but only the clause which precedes it — namely, "or have in his possession any part of the plumage, skin, or body of any bird other than a game bird."
The Ohio General Assembly derives its legislative power from Section 1 of Article II of the Ohio Constitution, and its specific power to enact laws conserving natural resources, such as birds and wild animals, from Section 36, Article II, Conservation of Natural Resources. This legislative power of the Ohio General Assembly, by reason of the constitutional grant to it, is superior to and controls the administrative power of the wildlife division and its chief. The wildlife division officials have only such powers as are granted to them by statutes enacted by the legislature.