70 PROBLEMS IN WILD LIFE CONSERVATION 



regulation must operate upon all persons alike under practically 

 similar conditions and circumstances . . . when a statute de- 

 signed for the protection of game by its plain terms excludes 

 from its benefits a portion of the residents of the state, or im- 

 poses upon some residents burdens not put upon other residents 

 with reference to the subject regulated and there appears to be 

 no real difference in conditions to fairly justify the classification 

 as made, the statute may in effect deny to residents of the state 

 equal protection of the laws. 



As against a classification of resident and non-resident, 

 equal protection of the law has rarely been successfully in- 

 voked. Although an act of the legislature of Arkansas for- 

 bidding a non-resident, even though owning land in the 

 state, to hunt or fish at any time and allowing a resident 

 such privileges was held a denial of equal protection by the 

 Supreme Court of that state. As the case 59 stands as a 

 solitary exception it might be well to consider it in detail. 



The bench was divided and the minority justices presented 

 an able dissent. The opinion of the majority was based 

 upon the theory that a landowner's right to take game found 

 on his land was a property right. Therefore, a statute pre- 

 venting a non-resident from exercising that right was a de- 

 nial of equal protection of the law between landowners. 

 The court considered the Geer case and distinguished it on 

 the grounds that, 



It is not the fact that the appellee is excluded from enjoyment 

 of the common right of the citizen to fish and hunt because of 

 his non-residence that he may complain, but of the exclusion by 

 reason of his non-residence from such special right which he 

 enjoys in common with other landowners. 



The minority contended that the right to take game found 

 on one's land holds as between one individual and another 



59 State v. Mallory, 73 Ark. 236, 83 S. W. 955 (1904). 



