338 
FOREST AND STREAM. 
[Oct. 20, 1894. 
MINNESOTA TEST CASES. 
State v. Rodman. Same v. Cobb. 
(Supreme Court of Minnesota. July 26, 1894.) 
Gamb Law— Constitutional Act— Policb Power— Title of Act— 
Excessive Fines. 
1. Gen. Laws 1891, c. 9, § 11, as amended by Gen. Laws 1892, c. 1?4 
§ 9, construed as prohibiting the having in possession, more than five 
nays after the commencement of the closed season, certain kinds of 
game, although lawfully taken or killed during the'open season. 
2. Held, that this statute is a proper exercise of the police power of 
the State to protect and preserve wild game, because reasonably tend- 
ing to prevent the unlawful killing of such game during the closed 
season. 
3. It is within the police power of the State to enact such laws as 
will preserve from extermination or undue depletion wild game 
adapted to consumption as food, or to other useful purpose; and to 
that end the Siate may adopt any reasonable regulations, not only as 
to the time and manner of taking or killing such game, but also im- 
posing such limitations or restrictions upon its use, or the right of 
property in it, after it is taken or killed, as will tend to prevent such 
extermination or depletion. 
4. Held, that the subject of the amendatory act of 1893 is sufficiently 
expressed in its title. 
5. The provisions of section 11 of the act, as amended, are not ob- 
noxious to that part of the constitution which prohibits the imposi- 
tion of excessive fines. 
(Syllabus by the Court.) 
Ca<=es certified from district court, Ramsey county; John W. Willis, 
Judge. 
C. W. Rodman and R. E. Cobb were separately indicted for violation 
of the game law, and demurred to the indictments. The demurrers 
were overruled, and certain questions certified to the supreme court. 
Orders affirmed. 
Pierce Butler and W. E. Bramhall, for the State. Briggs & Country- 
man, for defendant R. E. Cobb. D. D. Williams, for defendant O. W. 
Rodman. 
Collins, J. These defendants were separately indicted 
for having in possession, more than five days after the 
end of the open season, parts of the flesh and meat of 
deer, contrary to the provisions of Gen. Laws 1891, c. 9, 
§11, as amended by Gen. Laws 1893, c. 134, § 9, which 
reads thus: 
No person shall catch, take or kill, or have in possesion or under 
control for any purpose whatever, any fawn, at any time, nor elk, 
moose, caribou or antelope, before the first day of January, 1898; nor 
any variety of deer, at any time between the twentieth day of Novem- 
ber and the first day of November following, except that when the 
same have been lawfully caught, taken or killed, they may be had in 
possession or under control for five days, after the time herein 
limited, for use in the manner and for the purposes herein allowed. 
Whoever shall offend against any of the provisions of this section 
shall be guilty of a misdemeanor, and shall upon conviction thereof 
be punished by a fine of not less than fifty dollars nor more than one 
hundred dollars and costs of prosecution, or by imprisonment in the 
county jail for not less than sixty days nor more than ninety days for 
each and every such animal so caught, taken, killed or had in posses- 
sion or under control. 
Upon the argument of demurrers to the indictments, 
it was admitted by the prosecution that the deer referred 
to had been killed in the open season. The court, having 
overruled the demurrers, certified to this court the fol- 
lowing questions of law as having been raised on the 
argument, and decided in favor of the State, viz.: "(1) 
That chapter 124 of the General Laws of this State for 
1893 is unconstitutional and void; (2) that the Legislature 
had not the power to make it an offense to have in pos- 
session birds, animals or fish during the closed season, 
which had been killed and reduced to possession during 
the open season; (3) that if the Legislature has the power 
it has not exercised it, and this act does not make it an 
offense to have in possession during the close season birds, 
animals or fish which have been killed and reduced to 
possession during the open season; (4) that the act is void 
by reason of the excessive fines imposed by it; (5) that the 
indictment does not state a public offense." 
1. By the third and fifth propositions the same question 
is raised, and they go merely to the construction of this 
act, and for that reason should be first considered. The 
contention of defendants is that the act should be con- 
strued as prohibiting only the having in possession during 
the closed season game unlawfully caught, taken or 
killed. On this we need but to say that the language of 
the act is so clear, plain and unambiguous as to leave no 
room for any such construction. It is perfectly obvious 
that it makes it an offense to have in possession during 
the closed season any game caught or killed in the State, 
the time when it was caught or killed being 'immaterial. 
2. The first, second and fourth propositions raise the 
question of the validity of the act. The points made 
against its constitutionality are: First, that the Legisla- 
ture has no power to make it an offense to have in posses • 
sion, during the close season, game lawfully killed and re- 
duced to possession during the open season, especially for 
the reason that it deprives a person of his property with- 
out due process of law; second, that the act violates the 
constitutional requirement that no law shall contain more 
than one subject, which shall be expressed in its title; 
third, that the act so far as it relates to punishment for 
having game in possession, is in violation of the bill of 
rights (Const, art. 1, § 5), declaring that excessive fines 
shall not be imposed, etc. 
It is claimed that the act in question proceeds upon the 
plan of first declaring all wild game and fish within the 
State to be its absolute property, and then, upon that 
basis, providing how, and under what limitations, persons 
may acquire a qualified right of property in them from 
the State. Counsel for defendants contend strenuously 
that the State has no proprietary right in animals ferce 
natural, and can acquire none by mere legislation; that 
such animals are bona vacantia, in which a right of prop- 
erty can be acquired only by reducing them to possession. 
If it was the intention of the Legislature to declare all 
wild game the property of the State in a proprietary 
sense, that feature of the law might be subject to coun- 
sel's criticism; but that question is not material here, for 
it is not necessary to resort to any such doctrine as the 
source of the power of the State to adopt police regula- 
tions for the preservation of wild gamo within its borders. 
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 proprietor, but in its 
sovereign capacity, as the representative, and for the bene- 
fit of all its people in common. 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 representa- 
tive of the people in their united sovereignty, to enact 
such laws as will best preserve such game, and secure its 
beneficial use in the future to the citizens, and to that end 
it may adopt any reasonable regulations, not only as to 
time and manner in which such game may be taken and 
killed, but also imposing limitations upon the rights of 
property in such game after it has been reduced to posses- 
sion. Such limitations deprive no person of his property, 
because he who takes or kills game had no previous right 
of property in it, and, when he acquires such right by 
reducing it to possession, he does so subject to such con- 
ditions and limitations" as the Legislature has seen fit to 
impose. It is upon this principle that laws have 
been sustained which restricted the use of such game 
to the people of the State in which it was caught or 
killed, and prohibited its being shipped out of such State 
as an article of commerce; the reason being that to per- 
mit game to become an article of commerce, even during 
the open season, would stimulate the killing to an extent 
leading to its total extermination. In short, the object 
to be attained is the preservation from extinction or 
undue depletion of game; and the Legislature may pass 
any reasonable laws to effect that end, even to the extent 
of restricting the use of, or right of property in, the game 
after it is taken or killed. All so-called game laws pro- 
ceed upon that principle, and their constitutionality has 
rarely, if ever, been successfully assailed. Organ v. 
State, 56 Ark. 267, 19 S. W. 840; State v. Geer, 61 Conn. 
144, 52 Atl. 1012; Magner v. People, 97 III. 320; American 
Exp. Co. v. People, 133 111. 649, 24 N. E. 758; Gentile v. 
State, 29 Ind. 415; Phelps v. Racey, 60 N. Y. 10. 
No court would be justified in declaring unreasonable 
the provision limiting the time to five days after the com- 
mencement of the closed season, during which a person 
may lawfully retain possession of game taken or killed 
during the open season. What this provision aims at is 
not the mere fact of possession of game lawfully obtained, 
but to prevent its being unlawfully taken or killed. 
If it were permitted to have possession during the 
closed season, without limitation, of game taken 
or killed during the open season, it would in- 
evitably result in frequent violations of the game 
law, without the least probability of a discovery. Game 
is usually found in secluded places, away from habitations 
of men, with no one to witness the killing but the hunter 
himself. The game would have no earmarks to show 
whether it was taken or killed in the open or the closed 
season, and hence conviction under this statute would 
ordinarily be impossible, and the law would become prac- 
tically a dead letter. In these days of cold storage ware- 
houses, the mere lapse of time after the expiration of the 
open season would furnish little aid in an effort to prove 
that the game had been taken or killed out of season. 
The regulation is one which reasonably tends to prevent 
the taking or killing of game in the closed or forbidden 
season, and is therefore a legitimate exercise of the police 
power. Roth v. State, 7 Ohio Cir. Ct. R. 62; Phelps v. 
Racey, supra. 
There is nothing in the point made . by counsel for de- 
fendants as to the construction of this "five days" limita- 
tion. The evident intent of the Legislature was to extend 
the open season for possession five days beyond the end of 
the open season for killing. 
We fail to discover any merit in the point that the sub- 
ject of the amendatory act of 1893 is not expressed in its 
title. The title of the original act, approved April 20, 
1891, is "An act for the preservation, propagation and 
protection of the game and fish of the State." The title 
of the amendatory act is, "An act to amend an act 
for the preservation, propagation and protection of game 
and fish of the State of Minnesota, approved April 20, 
1891." It would be difficult to conceive of a title that 
would more clearly express the subject of an act pertain- 
ing to this matter, and every provision in both the orig- 
inal and amendatory acts is entirely germane to the sub- 
ject legislated upon. 
The only remaining question is whether the act is ob- 
noxious to the constitutional provision against the impo- 
sition of excessive fines, or the infliction of cruel or 
unusual punishments. The latter clause of the provision 
is directed, not So much against the amount or duration 
of the punishment, as against the character of it — what 
was in mind being those punishments which were cruel 
and degrading in their nature, and which had been con- 
demned by public opinion years before the adoption of 
our constitution. The punishment for offenses against 
the game laws are usually graduated in one or two ways 
— either by making the unlawful killing or possession of 
each animal a separate and distinct offense, or (which 
works out the same result) by graduating the penalty ac- 
cording to the number of animals killed or possessed, so 
that the greater the offense the greater the punishment. 
This method of graduating punishment is distinctly re- 
cognized in many of our criminal statutes. Our game law 
is not more severe in its penalties than the game laws of 
other States, the validity of which in this respect has rarely 
been questioned, so far as we have discovered. Bly den- 
burgh v. Miles, 39 Conn. 484; State v. Craig, 80 Me. 85 13 
Atl. 129; Association v. Durham, 51 N. Y. Super Ct. 306. 
See, also, Mims v. State, 26 Minn. 494, 5 N. W. 369; Cooley, 
Const. Lim. 401. While the fines imposed are certainly 
large, yet we cannot say that they are excessive, in a con- 
stitutional sense. A large discretion is necessarily vested 
in the Legislature to impose penalties sufficient to prevent 
the commission of an offense, and it would have to be an 
extreme case to warrant the courts in holding that the 
constitutional limit had been transcended. Orders 
affirmed. 
State v. Northern Pacific Express Co. 
(Supreme Court of Minnesota. July 25, 1894.) 
Game Law — Constitutionality— Shipments Out of State — Criminal 
Law— Review on Appeal. 
1. State v. Rodman and State v. Cobb, 59 N. W. 1098, followed ; hold- 
ing that certain provisions of Gen. Laws 1891, c. 9, as amended by 
Qen. Laws 1893, c. 124, entitled "An act for the preservation * * ♦ 
of the game and fish of the State of Minnesota," are valid. 
2. The provision of the act prohibiting the shipment out of the State 
of certain kinds of fish caught within the State is not an unlawful 
interference with, interstate commerce. 
3. State v. Byrud, 28 Minn. 30, followed, to the effect that, when a 
criminal case is certified to this court, we will only consider such ques- 
tions as appear from the certification to have been raised and passed 
on in the court below. 
(Syllabus by the Court.) 
Case certified from the District Court, Otter Tail county; L. L. 
Baxter, Judge. 
The Northern Pacific Express Company was indicted for violation 
of the game laws. Demurrers of the indictment were overruled, and 
certain questions certified to the Supreme Court. Orders affirmed. 
J. H. Mitchell, Jr., and Tilden R. Selmes, for appellant. H. W. 
Childs, Atty. Gen., and W. E, Bramhall, for the State. 
Collins, J. The defendant was twice indicted for vio- 
lations of Gen. Laws 1891, c. 9, as amended by Gen. Laws 
1893, c. 124; one indictment being under Sec. 17, for 
having in its possession during the open season fish which 
had been caught in an unlawful manner in this State 
during such open season, and the other under Sec. 22, for 
having in its possession fish lawfully caught in this State, 
but not of the species excepted from the operation of this 
section, with the intent to ship the same out of the State. 
The trial court, having overruled demurrers to the indict- 
ments, certified to this court the following questions as 
having been raised by defendant, and determined by it, 
namely: (1) That chapter 124 of the General Laws of this 
State for 1893 is unconstitutional and void; (2) that the 
Legislature has not the power to prohibit, during the open 
season, the receiving by a common carrier, for the pur- 
pose of transportation, of fish which have been illegally 
caught within the State; (3) that the act is void by reason 
of the excessive fines imposed by it. 
The first and third have been fully considered and dis- 
posed of in State v, Rodman and State v. Cobb, 59 N. W. 
1098 (opinions just filed). 
On the second question the defendant's contention is 
that the provisions of the act prohibiting the shipment 
out of the State of fish caught within the State unlawfully 
interferes with inter-State commerce. The complete 
answer to this is that the fish had never become articles 
of commerce, within the meaning contended for by 
defendant's counsel. Under the laws of the State they 
had, it is true, become private property, but of a qualified 
and limited character; one of the attached limitations 
being that they should not be shipped out of the State — 
that is, should not become the subject of interstate com- 
merce. The purpose of such a provision as a means of 
preventing a rapid and undue depletion of certain kinds 
of game has already been adverted to in the State cases 
just mentioned. Similar provisions are very commonly 
found in laws for the preservation of game, and have been 
generally upheld as valid. Organ v. State, 56 Ark. 270, 
10 S. W. 840; State v. Geer, 61 Conn. 144, 22 Atl. 1012. 
It must be remembered that defendant is not charged 
with having in possession fish caught and killed in another 
State, but in this. 
Defendant's counsel have argued some questions which 
have not been certified up by the trial court, the most 
serious thereof being that in the first indictment it is not 
alleged that defendant knew that the fish had been 
caught in an unlawful manner. But under the rule laid 
down in State v. Byrud. 23 Minn. 30, and repeatedly fol- 
lowed, we can only consider such questions as it appears 
from the certification were raised and passed on in the 
court below. Orders affirmed. 
AMONG THE TEAL. 
Lima, O.— Our destination was the Lewistown Reservoir, 
a 25 mile drive from home. We have an interest in one 
of the numerous club houses that line the banks of the 
Reservoir, and on arriving at our shanty we SQon make 
ourselves at home. Awaking in the morning we heard 
the light, drizzling rain falling on the roof, and knew that 
we had an ideal duck day, and we started for the prairie, 
where it is low and marshy, and can be waded with hip 
boots. As we emerged from the tall undergrowth and 
cat-tails, what a sight met our eyes I There, in an open 
body of water, were feeding at least 800 teal, with a few 
mallards scattered through the flock. 
There were ducks by the hundred, and every one out of 
range. Not a blind could we find anywhere near that 
would bring us within, gunshot of the birds. Our only 
chances were to walk them up or wade tbeni up. They 
got up with a rush and a splash. Our first few shots 
failed to hit and we found that we were shooting behind. 
I had by this time waded out to a good blind, and was 
anxiously awaiting a chance to retrieve my poor shoot- 
ing. "Mark, here comes a flock of eight." I cut loose 
with my first barrel and bring down two, and with the 
second barrel score one. Sam succeeds in getting one 
from the same flock. It is now getting late, and the 
ducks are flying high and scattering. By 7 o'clock the 
flight is over and we turn our attention to plover for 
awhile and then go back to the shanty with ten teal and 
seven plover. 
Dinner over, we start out again and our success is 
varied. Sam gets a widgeon and four teal, and I suc- 
ceed in knocking down a black mallard, four teal and a 
rail. 
The next morning we were in our blinds by daylight, 
but did not succeed in getting a shot at duck. There was 
no flight at all; all of them must have left the day before. 
The weather was now getting warmer and the outlook 
for better shooting was not encouraging, so we packed our 
traps and came home, well pleased with the short outing. 
We did not have as large a game bag as we sometimes 
read about, but 20 ducks and 19 plover to two guns in one 
day, through this section of the country, is worth reading 
about. 
We hope to try them again when the storms in the 
North shall have brought down the large ducks and an 
occasional flock of geese. Selmo. 
Some Illinois Shooting. 
Jkhseyville, 111., Oct. 8. — Oct. 1 opened the quail sea- 
son in Illinois, and many of our shooters have been out 
after the birds. Some returned with fair bagB, while 
others had but few. They all report plenty of birds, but 
that fully one-half are too small to shoot. The fact is 
that the law is wrong, that is the opening of the season is 
unreasonably early and should be changed trom Oct. 1 to 
Nov. 1, then close Jan. 1 instead of Dec. 1. I am told 
that many of the birds started were no larger than spar- 
rows. Now, this is all wrong and should be amended. 
Give the birds a chance to grow first and then hunt them. 
I am not one of those who argue that a quail will raise 
two broods in one season, but believe that where small 
birds are found it is owing to the fact that the nest has 
been destroyed or from some other unknown cause. 
Quail begin to travel in this section about the middle of 
September and continue to do so until about the middle 
of October. During this time they can sometimes be 
found in flocks of fifteen or more. 
I do not think that they prefer this mode of traveling, 
but that it only occurs when they chance to meet, and 
that they separate into coveys when roosting time comes. 
During the time they travel they often find their way 
into townB along their route, and can be heard whistling 
from the gardens, trees and housetops. L. S. H. 
Four Snipe Out of Five. 
Orangeville, Md., Oct. 8.— On the 8d of this month 
we saw Mr. J. A. Hartner Jof* Orangeville, Ind., kill four 
out of five, all on the wing at once. A. L. Petty, 
J. E. Evans, 
Ed. Zink. 
