American Fisheries Society. 35 



ing the same l)eyon(l the state, or shouki transport or have in pos- 

 session with intent to procnre sneh transportation, any of such 

 birds killed within the state. This statute was challenged as 

 unconstitutional. The Supreme Court of Connecticut sustained 

 the law, and it went on writ of error to the Supreme Court of the 

 United States. That court divided on the question, but the 

 majority held with the state court, so that the principle may be 

 considered settled that the state can forbid the killing of game 

 or fish except for domestic use. The doctrine was stoutly com- 

 bated in the dissenting opinion. Mr. Justice Field denied the 

 soundness of the rule that the state was owner to the extent that 

 it could qualify the ownership of one who had lawfully killed or 

 taken the fish or game. He contended that after the capture the 

 property of the captor was absolute, and that he could dispose of 

 the property as he pleased, and that it being an article of com- 

 merce, the state could not restrict the sale of it to be sent out of 

 the state. In this view Justice Harlan concurred. Brewer and 

 Peckham did not sit in the case. 



But here, it will be seen that judicial opinion is much 

 divided. A state law of Kansas made it unlawfiil for any person 

 to transport out of the state certain animals and ])irds embraced 

 in the term "game.'' The defendant, an agent of the Adams 

 Express C^ompany, was j^rosecuted and iined under the act. He 

 admitted the act, but contended that such acts constituted no 

 offense as the act was unconstitutional and void. The Supreme 

 Court of Kansas held the act void as interfering with interstate 

 commerce. But here the court overlooked the crucial point, — 

 that is, that the state can part with its ownership of game birds 

 in the wild state on such terms and qualifications, as it deems 

 wise, and can as a condition of the privilege forbid their ship- 

 ment, after caption, out of the state. 



The Supreme Court of Massachusetts has gone farther than 

 other states, and farther than seems necessary. It holds as con- 

 stitutional, a law forljidding the sale, during the close season, of 

 fish artifiicially propagated in private ponds. Com. v. Gilbert, 

 100 Mass. 157. 



The state laws forbidding the having in ])OSsession during 

 the close season, or the serving as food at hotels and restaurants, 

 are upheld. State v. Beal, 75 Me. 289. 



