Mabch 14, 1896. J 
FOREST AND STREAM. 
211 
taking of animals ferce naturae, which was thus recognized 
and enforced by the common law of England, was vested 
in the colonial governments, where not denied by their 
charters or in conflict with grants of the royal preroga- 
tive, it is also certain that the power which the colonies 
thus possessed passed to the States with the separation 
from the mother country, and remains in them at the 
present day, in so far as its exercise may not be ineom- 
patable with or restrained by the rights conveyed to the 
Federal government by the Constitution. Kent, in his 
Commentaries, states the ownership of animals ferce 
naturae, to be only that of qualified property. (2 Kent 
Com., 847.) 
In most of the States laws have been passed for the pro- 
tection and preservation of game. We have been referred 
to no case where the power to legislate has been ques- 
tioned, although the books contain cases involving con- 
troversies as to the meaning of some of the statutes. 
(Commonwealth v. Hall, 128 Mass., 410; Commonwealth 
v. Caruth, 139 Pa., 219; People v. O'Neill, 71 Mich., 325.) 
There are also cases where the validity of some particulai 
method of enforcement provided in some of the statutes 
has been drawn in question. (State v. Saunders, 19 Kan., 
127; Territory v. Evans, 2 Idaho, 634.) 
The adjudicated cases recognizing the right of States to 
control and regulate the common property in game are 
numerous. In McCrady v. Virginia (94 IT. S., 395) the 
power of the State of Virginia to prohibit citizens of other 
Statesfrom planting oysters within the tide waters of that 
State was upheld by this court. In Manchester v. Massa- 
chusetts (139 U. S., 24) the authority of the State of Mas- 
sachusetts to control and regulate the catching of fish 
within the bays of that State was also maintained. See 
also Phelps v. Racey (60 N. Y., 10); Magner v. People (97 
111., 320); American Express Co. v. People (133 III., 649); 
State v. N. O. Express Co. (58 Minn., 403); State v. Rod- 
man (58 Minn., 393); ex parte Maier (103 Cal., 476); Organ 
v. State (56 Ark., 270); Allen v. Wyckoff (48 N. J., 93); 
Rofch v. State (51 Ohio St., 393); Gentile v. State (29 Ind., 
415); State v. Farrell (23 Mo. App., and cases there cited); 
State v. Saunders (ub. sup.); Territory v. Evans (ub. sup.). 
While the fundamental principles upon which the 
common property in game rest have undergone no 
change, the development of free institutions has led to 
the recognition of the fact that the power or control 
lodged in the State, resulting from this common owner- 
ship, is to be exercised like all other powers of govern- 
ment as a trust for the benefit of the people, and not as a 
prerogative for the advantage of the government as dis- 
tinct from the people, or for the benefit of private indi- 
viduals as distinguished from the public good. There- 
fore, for the purpose of exercising this power, the State, 
as held by this court in Martin v. Waddell (16 Pet., 410), 
represents its people, and the ownership is that of the 
people in their united sovereignty. The common owner- 
ship and its resulting responsibility in the State is thus 
stated in a well considered opinion of the Supreme Court 
of California: "The wild game within a State belongs to 
the people in their collective sovereign capacity. It is 
not the subject of private ownership except in so far as 
the people may elect to make it so, and they may, if they 
see fit, absolutely prohibit the taking of it, or traffic and 
commerce in it, if it is deemed necessary for the protec- 
tion or preservation of the public good." (Ex parte 
Maier, ub. sup.) 
The same view has been expressed by the Supreme 
Court of Minnesota, as follows: "We take it to be the 
correct doctrine in this country that the ownership of 
wild animals, so far as they are capable of ownership, is 
in the State, not as a proprietor, but m its sovereign 
capacity as the representative and for the benefit of all 
its people in common." (State v. Rodman, supra.) 
The foregoing analysis of the principles upon which 
alone rests the right of an individual to acquire a quali- 
fied ownership to game, and the power of the State, de- 
duced therefrom, to control such ownership for the com- 
mon benefit, clearly demonstrates the validity of the 
statute of the State of Connecticut here in controversy. 
The sole consequence of the provision forbidding the trans- 
portation of game, killed within the State, beyond the 
State, is to confine the use of such game to those who own 
it — the people of that State. The proposition that the 
State may not forbid carrying it beyond her limits in- 
volves, therefore, the contention that a State cannot 
allow its people the enjoyment of the benefits of the 
property belonging to them in common, without at the 
isame time permitting the citizens of other States to par- 
ticipate in that which they do not own. It was said in 
the discussion at bar, although it be conceded that the 
State has an absolute right to control and regulate the 
killing of game as its judgment deems best in the interest 
of its people, inasmuch as the State has here chosen to 
allow the people within her borders to take game, to dis- 
pose of it, and thus cause it to become an object of State 
commerce, as a resulting necessity such property has 
become the subject of interstate commerce, hence con- 
trolled by the provisions of Article I., Section 8, of the 
Constitution of the United Stales. But the errors which 
this argument involves are manif est. It presupposes that 
where the killing of game and its sale within the State is 
allowed, that it thereby becomes commerce in the legal 
meaning of that word. In view of the authority of the 
State to affix conditions to the killing and sale of game, 
predicated as is this power on the peculiar nature of sueh 
property and its common ownership by all the citizens of 
the State, it may well be doubted whether commerce is 
created by an authority given by a State to reduce game 
within its borders to possession, provided such game be 
not taken, when killed, without the jurisdiction of the 
State. The common ownership imports the right to keep 
the property, if the sovereign so chooses, always within 
its jurisdiction for every purpose. The qualification 
which forbids its removal from the State necessarily en- 
tered into and formed part of every transaction on the 
subject, and deprived the mere sale or exchange of these 
articles of that element of freedom of contract and of full 
ownership which is an essential attribute of commerce. 
Passing, however, as we do, the decision of this question, 
and granting that the dealing in game killed within the 
State under the provision in question created internal 
State commerce, it does not follow that such internal 
commerce became necessarily the subject-matter of inter- 
state commerce, and therefore under the control of the 
Constitution of the United States. The distinction between 
internal and external commerce and interstate commerce 
is marked, and has always been recognized by this court. 
In Gibbons v. Ogden (9 Wheat, 194) Mr. Chief Justice 
Marshall said: 
"It is not intended to say that these words comprehend 
that commerce which is completely internal, which is 
carried on between man and man in a State, or between 
different parts of the same State, and which does not ex- 
tend to or affect other States. Such a power would be 
inconvenient and is certainly unnecessary. 
"Comprehensive as the word 'among' is, it may very 
properly be restricted to that commerce which concerns 
more States than one. The phrase is not one which would 
probably have been selected to indicate the completely in- 
terior traffic of a State, because it is not an apt phrase for 
that purpose; and the enumeration of the particular 
classes of commerce to which the power was to be ex. 
tended would not have been made had the intention been 
to extend the power to every description. The enumera. 
tion presupposes something not enumerated; and that 
something, if we regard the language or the subject of 
the sentence, must be the exclusively internal commerce 
of the State. 
"The genius and character of the whole Government 
seem to be that its action is to be applied to all the ex- 
ternal concerns of the nation, and to those internal con- 
cerns which affect the States generally, but not to those 
which are completely within a particular State, which do 
not affect other States, and with which it is not necessary 
to interfere, for the purpose of executing some of the 
general powers of the Government. The completely in- 
ternal commerce of a State, then, may be considered as 
reserved for the State itself." 
So, again, in The Daniel Ball (10 Wall. , 564) this cour t, 
speaking through Mr. Justice Field, said: 
"There is undoubtedly an internal commerce which is 
subject to the control of the States. The power delegated 
to Congress is limited to commerce among the several 
States, with foreign nations and with the Indian tribes. 
This limitation necessarily excludes from the Federal 
control commerce not thus designated, and of course that 
commerce which is carried on entirely within the limits 
of a State and does not extend to or affect other States." 
The fact that internal commerce may be distinct from 
interstate commerce destroys the [whole theory upon 
which the argument of the plaintiff in error proceeds > 
The power of the State to control the killing or an owner, 
ship in game being admitted, the commerce in game, 
which the State law permitted, was necessarily only in- 
ternal commerce, since the restriction that it should not 
become the subject of external commerce went along 
with the grant and was a part of it. All ownership in 
game killed within the State came under this condition, 
which the State had the lawful authority to impose, and 
no contracts made in relation to such property were 
exempt from the law of the State consenting that such 
contracts be made, provided only they were confined to 
internal and did not extend to external commerce. 
The case in this respect is identical with Kidd v. Pear- 
son (128 U. S., 1). The facts there considered were briefly 
as follows: The State of Iowa permitted the distillation 
of intoxicating liquors for "mechanical, medicinal, cu- 
linary and sacramental purposes." The right was asserted 
to send out of the State intoxicating liquors made therein 
on the ground that, when manufactured in the State, 
such liquors became the subject of interstate commerce, 
and were thus protected by the Constitution of the United 
States ; but this court, through Mr. Justice Lamar, pointed 
out the vice in the reasoning, which consisted in presup- 
posing that the State had authorized the manufacture of 
intoxicants, thereby overlooking the exceptional purpose 
for which alone such manufacture was permitted. So 
here the argument of the plaintiff in error substantially 
asserts that the State statute gives an unqualified right to 
kill game, when in fact it is only given upon the con- 
dition that the game killed be not transported beyond the 
State limits. It was upon this power of the State to 
qualify and restrict the ownership in game killed within 
its limits that the court below rested its conclusion, and 
similar views have been expressed by the courts of last 
resort of several of the States. In State v. Rodman, ub. 
sup., the Supreme Court of Minnesota said: 
"The preservation of such animals as are adapted to 
consumption as food, or to any other useful purpose, is a 
matter of public interest, and it is within the'police power 
of the State as the representative of the people in their 
united sovereignty to make such laws as will best pre- 
serve such game, and secure its beneficial use in the f uture 
to the citizens, and to that end it may adopt any reason- 
able regulations, not only as to time and manner in which 
such game may be taken and killed, but also imposing 
limitations upon the right of property in such game after 
it has been reduced to possession. Which limitations de- 
prive no person of his property, because he who takes or 
kills game had no previous right to property in it, and 
when he acquires such right by reducing it to possession 
he does so subject to such conditions and limitations as 
the Legislature has seen fit to impose." See also State 
v. Northern Pacific Express Co., supra. 
So also in Magner v. The People, ub. sup. , the Supreme 
Court of Illinois said: 
"So far as we are aware, it has never been judicially 
denied that the Government under its police powers may 
make regulations for the preservation of game and fish, 
restricting their taking and molestation to certain seasons 
of the year, although laws to this effect, it is believed, 
have been in force in many of the other States since the 
organization of the Federal Government. * * * The 
ownership being in the people of the State, the repository 
of the sovereign authority, and no individual having any 
property rights to be affected, it necessarily results that 
the Legislature as the representative of the people of the 
State may withhold or grant to individuals the right to 
hunt and kill game, or qualify or restrict, as -in the 
opinions of its members will best subserve the public 
welfare. Stated in other language, to hunt and kill 
game is a boon or privilege, granted either expressly or 
implicitly by the sovereign authority,'not a right inherent 
in each individual, and consequently nothing is taken 
away from the individual when he is denied the privilege 
at stated seasons of hunting and killing game. It is 
perhaps accurate to say that the ownership of the sov- 
ereign authority is in trust for all the people of the State, 
and hence by implication it is the duty of the Legislature 
to enact such laws as will best preserve the subject of the 
trust and secure its beneficial use in the future to the 
people of the State. But in any view the question of 
individual enjoyment is one of public policy and not a 
private right." 
See also ex parte Maier (103 Cal., 476); Organ v. The 
State (56 Ark., 270). It is indeed true that in State v. 
Saunders (19 Kan., 127), and Territory v. Evans (2 Idaho, 
634), it was held that a State law prohibiting the shipment 
outside of the State of game killed therein violated the 
interstate commerce clause of the Constitution of the 
United States, but the reasoning which controlled the de- 
cision of these cases is, we think, inconclusive, from the 
fact that it did not consider the fundamental distinction 
between the qualified ownership in game and the perfect 
nature of ownership in other property, and thus over- 
looked the authority of the State over property in game 
killed within its confines, and the consequent power of 
the State to follow such property into whatever hands it 
might pass, with the conditions and restrictions deemed 
necessary for the public interest. 
Aside from the authority of the State, derived from the 
common ownership of game and the trust for the benefit 
of its people which the State exercises in relation thereto, 
there is another view of the power of the State in regard 
to the property in game, which is equally conclusive. 
The right to preserve game flows from the undoubted 
existence in the State of a police power to that end which 
may be none the less efficiently called into play, because 
by doing so interstate commerce may be remotely and 
indirectly affected. (Kidd v. Pearson, ub. sup. , Hall v. 
De Cuir, 95 U. S., 485; Sherlock v. Allings, 93 U. S., 99, 
103; Gibbons v. Ogden, ub. sup.) Indeed, the source of 
the police power as to game birds (like those covered by 
the statute here called in question) flows from the duty of 
the State to preserve for its people a valuable food supply. 
(Phelps y. Racey, 60 N. Y. 10; ex parte Maier, ub. 
sup.; Magner v. The People, ub. sup., and cases there 
cited.) The exercise by the State of such power 
therefore comes directly within the principle of Plum- 
ley v. Massachusetts (155 U. S., 461, 473). The power 
of a State to protect by adequate police regulation its peo- 
ple against the adulteration of articles of food (which was 
in that case maintained), although in doing so commerce 
might be remotely affected, necessarily carries with it the 
existence of a like power to preserve a f ood.supply which 
belongs in common to all the people of the State, which 
can only become the subject of ownership in a qualified 
way, and which can never be the object of commerce ex- 
cept with the consent of the State and subject to the con- 
ditions which it may deem best to impose for the public 
good. . ' ' . '. .. " 
Judgment affirmed. 
Mr. Justice Brewer and Mr. Justice Peckham, not having heard thj 
argument, took no part in the decision of this cause. 
