State v. Heffernan , 41 N.M. 219 ( 1936 )

On rehearing, the Attorney General presents a proposition not specifically and directly presented when we first considered the case. It is now his contention that the charge against appellee of unlawfully possessing the bearskin was not based upon the violation of a regulation of the Game Commission, but rather on Laws 1931, ch. 117, § 8. Clearly that is true.

However, the foundation of this latter case is the first case. Appellee was first charged with killing a bear out of season. The State contended at that time that this species of animal is a game animal, not because the Legislature defined it to be a game animal, but because the Game Commission, pursuant to its regulation No. 57 declared the bear to be a game animal. The Game Commission claimed authority to define bear to be a game animal in Laws 1931, ch. 117. The theory under which the appellee was prosecuted in both cases in the justice of the peace court, and the theory urged upon the district judge in the habeas corpus proceedings, was not that the bear had been defined or classed as a game animal by any legislative declaration, but was predicated upon the Game Commission's pronouncement that the bear was a game animal.

We said in our opinion that the Game Commission cannot do this without a prior legislative declaration that the bear is a game animal. From this statement of the law we do not recede. The entire case, beginning with the prosecution in the justice of the peace court on to the final appeal, presented the question as to whether or not the Legislature could delegate to the Game Commission the right to define game animals. The district court as well as this court was led into a consideration of the question of delegation of powers. This question we determined.

Our attention has now been called (on rehearing) to Laws 1935, ch. 123, § 1, subsec. 3, amending 1929 Comp.St. § 57-217, which provides as follows: "A big game license shall entitle the person named therein to hunt big game and other game quadrupeds during the season therefor. (Deer, bear and wild turkey are classified as big game.)"

The Attorney General contends that bear is a game animal because of this legislative act. If the Legislature has defined bear to be a game animal, then clearly the appellee violated the law.

In view of our opinion, nothing would prevent the Game Commission from fixing the open and closed seasons on such game animal. It would properly be within the powers of the Legislature to delegate to the commission such power. In prosecuting the appellee, charging him with either killing or having in his possession a part of a game animal, the State would have to base its case on both a statute showing that bear was a game animal and also that such animal had been killed out of season. To support such charge the State would have to invoke a statute defining bear to be a game animal and rules and regulations of the commission to show that the bear was killed out of season.

It may be questioned whether this legislative declaration (Laws 1935, ch. 123, supra) is sufficient to classify bear as a game animal. However, we have made an independent search of our statutes relating to game, to ascertain if the Legislature has already declared the bear to be a game animal.

In our original opinion we stated, "The legislature has denominated a bear as a game animal, Laws 1935, c. 123, § 1, subsec. 3." That act would not be sufficient to validate a regulation of the commission theretofore made making bear a game animal because, in the first place, it did not purport to be a validating act, and, further, if the Legislature had no power to delegate the function of designating game animals to the commission, it is doubtful whether they could afterwards validate such an unconstitutional action. In our original opinion we did not consider the fact that subsection 3 of section 1, ch. 123, Laws 1935, so far as it bears on what is a game animal is concerned, was merely a re-enactment of subsection 3 of 1929 Comp.St. § 57-217, which in turn was the compilation of a portion of Laws 1927, c. 34. The Attorney General did not call our attention to this, and we assumed that the Legislature had never, prior to 1935, said that bear was a game animal.

Our search of the statutes discloses that the Legislature by chapter 34, Laws 1927, did intend to denominate bear a game animal. This is apparent from reading the same. Section 1 of that act amends section 12 of chapter 47, Code 1915, as amended by section 7, ch. 101, Laws 1915, as amended by section 3, ch. 133, Laws 1919. In tracing the pertinent parts of the amended section, we find that section 2435, Code 1915 (Act June 14, 1912, Laws 1912, c. 85), said: "No person shall at any time shoot, hunt or take in any manner any game which is by law protected in this state without first having in his possession a hunting license as hereinafter provided for the year in which such shooting or hunting is done. * * * A big game license shall entitle the person therein named to hunt game quadrupeds during the open season therefor. (Wild turkeys are classified as big game under the meaning of the chapter.)"

This section was amended by Laws 1915, c. 101. There was a re-enactment or amendment of the section, but subsection 3 remained the same. This was amended by chapter 133, Laws 1919, but no change was made in subsection 3. Then at the 1927 Session, chapter 34, section 3, was amended by changing the part in parenthesis so as to read "(Deer, bear, and wild turkey are classified as big game.)" In the same act appears section 2, which amends section 1 of chapter 154, Laws 1921, as amended by section 3 of chapter 57, Laws 1925. This section 1 of chapter 154, Laws 1921, so amended was an amendment of section 2438, Code 1915, as amended by section 4, c. 133, Sess. Laws 1919. In tracing this legislation, we see that in section 2438, which was a portion of the Act of June 14, 1912, it was declared: "The open season for hunting, taking or possessing any of the animals, birds or fish protected by this chapter shall be between the following named dates only, both inclusive."

Likewise bear was not mentioned in the amendment of this section made in chapter 133, Laws 1919. Likewise bear was not mentioned in the amendment made by chapter 154, Laws 1921, but by section 2 of chapter 34, Laws 1927, the Legislature, by way of amendment of the earlier enactments, declared: "The open season in each year for hunting, taking or possessing any of the game animals or birds protected by this Act shall be: * * * For bear from October 10th to October 31st, both inclusive, limited to one bear in a season."

In the same amendatory act (chapter 34, Laws 1927) where, in section 1, whereby section 12 of the original act was amended, the Legislature indicated in subsection 3 thereof that a bear is a game animal "protected by this Act," they also further in the same amended other sections so as to specifically show that bear was to be protected by "this act" by declaring the open season on said bear to be limited to 22 days and further limited to one bear in a season.

Our original opinion is correct if the only definition of a game animal is to be found in the rules and regulations of the Game Commission. But the bear as a game animal is sufficiently defined in the statute and has been so defined long prior to the offense alleged to have been committed by appellee. This being so, the appellee was properly charged with the unlawful killing of a game animal, to wit, a bear.

This brings us necessarily to another point raised by appellee to sustain his discharge on habeas corpus. He claims he was discharged by the district court in the first habeas corpus (which order of discharge became final, because no appeal was taken), and therefore such final decree of discharge becomes res adjudicata to the second prosecution.

The question thus presented is whether or not the possession of a bearskin in the instant case becomes a separate and distinct offense from that of killing the bear from which the skin was taken or was the adjudication by the trial court in the first habeas corpus proceeding a bar to a prosecution on the second charge?

On March 31, 1935, the appellee was charged with killing a bear out of season. The trial court in the subsequent habeas corpus proceeding released the appellee on the theory that it is no crime in the State of New Mexico to kill a bear out of season. From this judgment no appeal was prosecuted by the State.

So long as a judgment remains unappealed from and in full force, it does not detract from its effect as a bar to further suits upon the same cause of action that it may be erroneous, so as to be reversible on appeal or error, or so irregular that it would be vacated on a proper application for that purpose. See 34 C.J. § 1184.

No appeal having been prosecuted, the judgment was final. Therefore, to all legal intents and purpose, that particular bear was by judicial decree held not to be a game animal. Such judgment becomes res judicata as to any and all future litigation between the same parties (State v. Heffernan) involving that particular bear's status as a game animal.

The particular bear in question is no more a game animal to support the charge of the state that the appellee had in his possession the skin of a game animal, to wit, a bear, than would such a charge be supported had the bear been a circus bear. The appellee invokes a rule of law too well established in our jurisprudence, the rule of res judicata.

Under this rule the judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. Under this rule any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject matter of the two suits is the same or not. See 34 C.J. § 1154.

In the case now before us the parties were the same as in the previous habeas corpus proceedings. The matter first adjudicated was that the particular bear in question was not a game animal. To prove the instant case the State would have to prove that the skin in possession of the appellee was taken from a bear that was a game animal. The court having already adjudicated (between these same parties, even though erroneously) that the bear was not a game animal, it is not the policy of the law to permit this same question between the same parties to be again litigated.

Res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the state that there should be an end to litigation, the other, the hardship on the individual that he should be vexed twice for the same cause.

The final determination of the original action as to the entire subject of the controversy (Is a bear a game animal?), and such controversy and every part of it, must stand irrevocably closed by such determination.

The appellee could not again be prosecuted for killing the bear, and he cannot be prosecuted for having in his possession the skin of that same bear.

For the reasons given the result announced in our original opinion sustaining the ruling of the trial judge in discharging the appellee from custody on his petition for a writ of habeas corpus must stand. The motion for rehearing is denied.

It is so ordered.

HUDSPETH, C.J., and SADLER, BICKLEY, and BRICE, JJ., concur.