FOREST, FISH AND GAME COMMISSIONER. 405 



Court by Mr. Justice O'Gorman upon his opinion vacating the temporary 

 injunction. 



Appeal was taken to the Appellate Division, First Department, which 

 court affirmed the decision of Mr. Justice O'Gorman by a divided court. 

 From the prevailing opinion of Mr. Justice Houghton we quote the following: 



' These provisions, which cannot be deemed unreasonable, have as 

 their object the better protection of the fish and game of the State. Con- 

 fessedly, one of the best means of preventing the illegal taking of fish and 

 game is to deprive the pot hunter and the pot fisher of a ready market. 

 If he has no market the temptation to take illegally is largely removed. 

 The most effective way of depriving him of a market is to deprive him of 

 means of transportation. This the Legislature has attempted to do by 

 prescribing that common carriers shall not accept for transportation, 

 carcasses of deer, except one, and that accompanied by the owner. In so 

 doing we are of the opinion that the Legislature intended to prohibit the 

 transportation of all deer whether wild or domesticated, even if such a 

 term can be applied to such an animal, which is very doubtful." 



An appeal was taken to the Court of Appeals by the plaintiff and the 

 judgment reversed by that court, Judge Vann, dissenting from its decision. 



The opinion of the court by Judge William Bartlett states as follows: 

 ' The sections of the statute relating to deer which we are called upon 

 to construe in this case deal with two subjects: (i) The killing of deer, 

 and (2) the transportation of venison. Section 7 prescribes the open 

 season for deer and provides that deer shall not be taken at any other 

 time. I think that this prohibition may fairly be held to comprehend all 

 deer whether wild or domesticated. While the purpose of the Legislature 

 by this enactment doubtless was to prevent the killing of wild deer except 

 in the open season, it possessed the constitutional power to prohibit the 

 killing of all deer during the close season in order to prevent an evasion 

 of the principal prohibition. When we come to the provisions that no 

 person shall take more than two deer in the open season and to the provisions 

 relating to the transportation of venison, it, seems that a different intention 

 is disclosed and that those parts of the statute apply only to wild deer. 

 As the law stands I think that domesticated deer may lawfully be killed 



