Opinion
June 4, 1968
Quail — Hunting Days — Dates — Shooting Hours — Limit The legal hunting days for quail are as provided in 29 O.S. 252 [29-252] and 29 O.S. 520 [29-520](a) 29 O.S. 520 [29-520](b), and to that extent 29 O.S. 1961 Section 305[29-305] [29-305] is repealed by implication. The opening and closing dates, shooting hours, bag and possession limits and manner of taking quail for 1968-1969 are provided in 29 O.S. 305 [29-305] and 29 O.S. 306 [29-306] (1961). The Attorney General has had under consideration your letter of May 9, 1968, wherein you ask the following question: "What are the opening and closing dates, legal shooting hours, bag limit, possession limit and manner of taking for quail in the State of Oklahoma for the 1968-69 season?" We call your attention to S.B. 604, Thirty-first Legislature, Second Session, which provides in relevant part: "Section 2. 29 O.S. 520 [29-520](a) and (b), as amended by Section 1 (a) and (b), Chapter 34, O.S.L. 1963, is amended to read as follows: "Section 520. (a) The Oklahoma Wildlife Conservation Commission is hereby authorized to declare an open season on deer, prairie chicken or other game animals and birds in any counties or parts of counties in this State when, in the judgment of said Commission, such game exists in sufficient quantity to warrant such open season. Such open season shall be declared by resolution of said Commission not less than ten (10) days before such season is to be opened. It shall be unlawful to kill doe deer or hen turkey in this State. (b) The Commission is further authorized to prescribe rules and regulations necessary to the proper conduct and policing of such open season, the amount and kind of game that may be taken, and the dates and time limits of such seasons. It shall be unlawful to hunt or kill quail on days other than Mondays, Thursdays, Saturdays, Thanksgiving Day, Christmas Day, New Year's Day, and other legal holidays except on lands owned by the Commission." (Emphasis added) It should be noted that S.B. 604 expressly repeals certain existing statutes, or portions of statutes, with the following language: "Section 1, Chapter 336, O.S.L. 1967 (29 O.S.Supp. 1967 Section 252[29-252] [29-252] [29-252]), is amended to read as follows: "29 O.S. 1961 Section 520 [29-520] (a) and (b), as amended by Section I (a) and (b), Chapter 34, O.S.L. 1963, is amended to read as follows: "Although sub-section (a) and sub-section (b) of Section 520, supra, have been expressly repealed, sub-section (d) has not been repealed. Sub-section (d) provides as follows:" (d) The open season, closed seasons, bag limits, catch limits, possession limits and territorial limitations set forth in the statutes of this State, pertaining to fish, minnows, game and various species of wildlife are hereby declared to be based on the existence of a normal population of such fish, game or various species of wildlife, compatible with and not damaging to the proper agricultural use of the lands of the State. Such seasons, catch limits, bag limits, possession limits and territorial limitations, as set by statute, shall prevail and be in force and effect for each and every species of wildlife to which they pertain so long as the populations or numbers of such wildlife species remain normal or are not damaging or endangering farm crops or proper agricultural use of the lands of the State, or any area of the State." (Emphasis added) The above quoted sub-section makes it clear that Section 520 applies to the setting of seasons, etc., that are not currently set by a specific enactment of the legislature, with exception of the provision for season regulation in event of an abnormal crop of game. We also call your attention to the fact that 29 O.S. 305 [29-305] and 29 O.S. 306 [29-306] (1961), were the statutes regulating the subject matter of your question at the time of the passage of S.B. 604. Section 29 O.S. 305 [29-305] provides: "It shall be unlawful to hunt for, with intention of killing, capture or kill any species of quail, except from the 20th day of November each year to the following January 15th, both days inclusive, and then only on Tuesdays, Thursdays and Saturdays, provided that the legal holidays, Thanksgiving, Christmas, and New Year's Day shall be considered as part of the open season to kill quail. Provided, further, that it shall be unlawful to take quail, under the provisions of this Act, by any means except with a shotgun and then between sunrise and sunset only. Provided, further, it shall be unlawful at any time to shoot into any covey of quail resting on the ground, commonly called `Pot Shooting.' Anyone found guilty of violations of this Section shall be punished by a fine of not less than Twenty five Dollars ($25.00), nor more than Two Hundred Dollars ($200.00). All fines and bond forfeitures collected under the provisions of this Act shall go to: fifty percent (50%) to the general fund of the respective counties and fifty percent (50%) to the State Treasury for credit to the Oklahoma Wildlife Conservation Commission Fund." Section 29 O.S. 306 [29-306] provides: "The bag limit on quail shall be ten (10) quail in any one (1) day, provided, that no person shall have more than (2) days' limit in his possession at any one (1) time; and provided, further, that no person shall have more than one (1) day's bag limit in his possession while in the field or returning from one (1) day's hunting. Any person found guilty of this Section shall be punished by a fine of not less than Twenty-five Dollars ($25.00), nor more than Two Hundred Dollars ($200.00); provided, however, that upon a second conviction for violation of this Section the punishment shall be a fine of not less than Fifty Dollars ($50.00) nor more than Three Hundred Dollars ($300.00). All fines and bond forfeitures collected under the provisions of this Act shall go to; fifty percent (50%) to the general fund of the respective counties and fifty percent (50%) to the State Treasury for credit to the Oklahoma Wildlife Conservation Commission Fund." It is clear that neither of these statutes is expressly repealed by S.B. 604, therefore, these two statutes would be repealed by implication only insofar as they are in irreconcilable conflict with the provisions of S.B. 604. In Stevenson v. O'Keefe, 195 Okl. 28, 154 P.2d 757, the court said in the first paragraph of its syllabus: "Where a conflict exists between statutes enacted at different sessions of the Legislature, the last statute in point of time will prevail; it being the last expression of the legislative intent." S.B. 604 is in irreconcilable conflict with Section 305 as to whether hunting is legal on Monday or Tuesday and as to lands owned by the Commission. Section 306 does not seem to be in conflict at all with S.B. 604, therefore, it continues to be in force in its entirety. It is therefore the opinion of the Attorney General that the legal hunting days for quail are as provided for in S.B. 604 and to that extent Section 305 is repealed by implication. It is further the opinion of the Attorney General that the opening and closing dates, shooting hours, bag limits, possession limits and manner of taking quail in the State of Oklahoma for the 1968-69 season are as provided in 29 O.S. 305 [29-305] and 29 O.S. 306 [29-306] (1961). (Dale F. Crowder) (Bag Limits)