The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5189 May 4, 1977 CONSTITUTION OF MICHIGAN: Art 1, Section 2 CONSTITUTION OF UNITED STATES: Am XIV, Section 1 FISH AND GAME: Baiting of animals CRIMES AND OFFENSES: Baiting of animals A statute prohibiting baiting of animals is constitutional. Honorable Alfred A. Sheridan State Representative The Capitol Lansing, Michigan 48901 You have requested my opinion as to whether 1931 PA 328, ch IX, Sec. 49, (1) violates the equal protection clause of Const 1963, art 1, Sec. 2 because it excepts from its provisions conduct permitted by the Game Law (2), the act regulating propagation of wild birds and animals (3), and the act regulating the operation of shooting preserves (4). It is my opinion that 1931 PA 328, chap IX, Sec. 49, supra, is valid. Section 49 provides: '(1) A person who owns, possesses, keeps, or uses any bull, bear, dog, cock, or other animal, or fowl, or bird for the purpose of fighting, baiting, or as a target to be shot at, as a test of skill in marksmanship; and a person who is a party to or who causes any such fighting, baiting, or shooting of any bear, dog, cock, or other animal, or fowl, or bird; and a person who shall rent or otherwise obtain the use of a building, shed, room, yard, ground, or premises for the purpose of fighting, baiting, or shooting any animal, fowl, or bird or shall knowingly suffer or permit the use of a building, shed, room, yard, ground, or premises belonging to him or under his control, for any of the purposes described in this section, shall be guilty of a felony punishable by a fine of not more than $5,000.00, or imprisonment for not more than 4 years, or both. '(2) A person who is present at a building, shed, room, yard, ground, or premises where preparations are being made for an exhibition described in subsection (1), or a person who is present at the exhibition, knowing that an exhibition is taking place or about to take place, is guilty of a misdemeanor. '(3) All animals, equipment, devises, and money involved in a violation of this section shall be forfeited to the state. '(4) This section shall not apply to conduct which is permitted by and is in compliance with Act No. 286 of the Public Acts of 1929, as amended, being sections 311.1 to 315.5 of the Michigan Compiled Laws, Act No. 191 of the Public Acts of 1929, as amended, being sections 317.71 to 317.84 of the Michigan Compiled Laws, or Act No. 134 of the Public Acts of 1957, as amended, being sections 317.301 to 317.313 of the Michigan Compiled Laws.' US Const, Am XIV, Sec. 1, provides: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Const 1963, art 1, Sec. 2, provides: 'No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights, or be discriminated against in the exercise thereof because of religion, race, color or national origin. . . .' The standards utilized in ascertaining whether a legislatively created classification is violative of the equal protection clauses are found in Gauthier v Campbell, Wyant & Cannon Foundary Co., 360 Mich 510, 514; 104 NW2d 182 (1960). To quote from the opinion: 'The standards of classification are: '1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state or facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' In Waters v People, 23 Colo 33; 46 P 112 (1896), the Colorado Supreme Court held that the killing of doves as they are released from a trap to improve skill in marksmanship, for sport or for amusement violated the statute prohibiting needless mutilation and killing. In Waters, the Court observed: 'As an abstract question, men of equal refinement and intelligence, either because of a difference in taste or training, or in their surroundings and occupations, might well differ as to the moral obliquity of the act of shooting live doves as they were released from a trap. '. . . The shooting of wild animals in the forest and fishing in streams do not come within the statute. We have other laws covering these things, and they are permitted at certain seasons of the year. Every act which causes pain and suffering to animals is not prohibited. Where the end and object in view is reasonable and adequate, the act resulting in pain is, . . . necessary or justifiable, . . . But the killing of captive doves, as they are released from a trap, merely to improve one's skill of marksmanship, or for sport or amusement, though there is no specific intention to inflict pain or torture, is, within the meaning of this act unnecessary and unjustifiable.' [Waters v People, 23 Colo 33, 35, 39 (1896)] The three statutes defining conduct exempt from the prohibition of 1931 PA 328, ch IX, Sec. 49, supra, were enacted to accomplish the following: 1. The Game Law, 1929 PA 286, supra, was adopted to regulate the hunting of protected wild fowl and animals and to limit the seasons during which game or fowl may be hunted so that these resources may be preserved, propagated and enjoyed by future generations. The act does not permit licensees to engage in any of the activities prohibited by 1931 PA 328, ch IX, Sec. 49. 2. 1921 PA 191, supra, was adopted to limit the manner in which a licensed individual may possess, propagate, purchase, sell, transport or use wild birds or animals. While it permits the trapping or killing or such animals at any time, it prohibits the shooting of game birds and animals except under rules adopted by the Commission of Natural Resources to cover special situations. It does not permit any bird, game, or furbearing animal to be used for fighting, baiting, or as a target to be shot at, as a test of skill in marksmanship. 3. 1957 PA 134, supra, regulates the operation of shooting preserves. It does not permit the use, possession or propagation of wild animals or fowl for fighting, baiting, or as a target to be shot at, as a test of skill in marksmanship. It is therefore clear that the purpose of 1931 PA 328, ch IX, Sec. 49, supra, is different from the purpose of the game law, the act regulating the propagation of wild birds and the act regulating the operation of shooting preserves. In my opinion this distinction constitutes the basis of a valid classification and the provision is constitutional. Frank J. Kelley Attorney General (1)
(2)
1929 PA 286; MCLA 311.1 et seq; MSA 13.1321 et seq.(3)
1929 PA 191; MCLA 317.71 et seq; MSA 13.1321 et seq.(4)
1957 PA 134; MCLA 317.301 et seq; MSA 13.1397(1) et seq.