State Ex Rel. South Dakota Game & Fish Commission v. O'Neill

CAMPBELL, J.

(concurring specially).

It was undoubtedly the general intent of the Legislature that the disbursement of the state game and fish fund should be under the control of the nonpolitical game and fish commission created by chapter 14, Laws Special Session 1927, and that the fund should be expended “directly and only for the purpose of enforcing the game laws of this state and for the propagation and preservation of game and fish.” The specific language requiring construction in the present proceeding is that portion of section 11 of the above-mentioned statute reading as follows:

“Provided, that 25 per cent of all such funds may be used for like purposes within the Custer State Park and) be paid out upon vouchers approved by the State Park Board. Provided further, that not over Twenty-five Thousand Dollars ($25,000) shall be apportioned to the Custer State Park Board in any fiscal year. Provided' further that such funds, shall be apportioned monthly, in proportion with receipts of the Department of Game and Fish.”

All parties to this proceeding appear to agree that the word “may” as here used is permissive rather than mandatory. The real controversy seems to’ he on the question of whether the permission granted by this particular “may” is granted to the state game and fish commission or to the Custer State P’ark Board. Construing the language above quoted in connection with the entire statute and related statutes and in the light of relevant legislative history, I think the permission is granted to the game and fish commission. In other words, the game and fish commission may, in its discretion, delegate to the state park board the expenditure (strictly for game and fish purposes within the state park) of a portion of the state game and fish fund. This discretion of the game and fish commission is limited by the proviso that it cannot apportion for this use in any one year more than 25 per cent of the total fund or more than $25,000, whichever maximum' may first be reached. I believe that the entire matter of such apportionment (under the statutory maxima) is discretionary with the commission and I do not think its exercise of such discretion is subject to judicial review. Assuming that it might be deemed so subject, I am satisfied that no abuse thereof appears in the record here.

So far as concerns the previous practice which is said to have developed pursuant to' an Attorney General’s opinion of October 14, 1927 (Report Attorney General 1928, p. 178), which opinion defendants plead in their return and upon which they have much relied in the argument, that seems to me a matter of little importance. From 1928 to and including 1931 the $25,000 maximum fixed by the statute amounted to approximately 10 per cent of the state game and fish fund. The receipts of the fund were sufficient so that $25,000 thereof could be expended for fish and game purposes in the state park undler supervision of the park board and still leave the remainder of the fund adequate to finance other necessary activities of the game and fish commission.» The commission may have been, and undoubtedly was, at that time, quite willing to exercise its discretion by apportioning $25,000 annually for game purposes in the park. Under those circumstances, it would have been entirely pointless (even if possible) to enter into a academic controversy with the Attorney General’s office as to whether the commission could restrict such apportionment to a lesser amount if and when it desired to do so. The appropriate time to raise that question was when it became actual rather than theoretical, and that moment arrived when the marked decrease in the receipts of the game and fish fund beginning in 1932 and increasing in 1933 caused the commission to believe that it was no longer wise or proper to apportion $25,000 thereof to the state park, and to entertain the opinion that game and fish activities in the state park should share with other proper, legitimate, and operating activities of the game and fish commission in the deprivations necessarily imposed ¡by decreased receipts.

Upon these considerations I concur in the view that the writ should issue.