384 
FOREST AND STREAM. 
[Kov. 13, 1897. 
times during the last thirty years, and the type localities 
are given for each species and subspecies are given, and 
then follows a technical description of the species. Three 
plates are given, one of ears, one of feet and one of wings, 
of the different species. 
The work cannot fail to be of great value to the natural- 
ists, but it is too technical to have more than a general in- 
terest for the popular reader. 
AMERICAN ORNITHOLOGISTS' UNION. 
At the hour of going to ureas, the fi f teenth Annual Con- 
gress of the American Ornithologists' Union is being held at 
the Araericflu Museum of ISTatural Historv, Seventy-seventh 
street avd Eighth avenue, New York The public sessions 
of the Union will occupy Tuesday, Wednesday and Thurs- 
day of this week. 
Monday was largely devoted to a meeting of the Council 
of the Union, and in the evening the business meeting of the 
active members was held in the board room at the Museum, 
At this meeting there were preseiat Dr. C. H. Merriam, Dr. 
J. A. Allen, Dr. Elliott Coues, D. G. Elliot, L. 8. Foster, 
Witraer Stone, Eugene P. Bicknell, Dr. A. K. Fisher, Dr. T. 
S. Eoberts, Dr. Jonathan Dwight. Jr., Dr. George Bird 
Gnncell, Charles F Bachelr^er, Euthven Deane, E. W. 
Nelson, Walter B. Faxon, Frank M. Chapman, William 
Dutcher and John H. Sage. 
The following officers were electpd for the ensuing year: 
President, William Brewster; Vice-Presidents, Dr. C. Hart 
Merriam and Robert Ridgway; Secretary, John H. Sage; 
Treasurer, Williiiro Dutcher. Mr. Rathven Deane was 
added to the council. One active member, Mr.C. W. Rich- 
mond, and a considerable number of associate members were 
elected, but no honorary or corresponding members. 
The first public session opened in the library of the 
museum shortly after 11 o'clock on Tuesday morning. Mr. 
Sylvester D. Judd read an interesting paper on the "Pro- 
tective Adaptations of Insects from an Ornithological Point 
of View." The gist of his argunaent was that whereas 
writers on protective adaptation have asserted that insects 
protected either by color or in other ways were not com- 
monly eaten by birds, the investigations of stomachs of 
American birds by the Biological Survey has shown that 
many insects supposed to be most completely protected are 
very largely eaten by our birds. Interesting remarks were 
made on this paper by Dr. Allen, Dr. Fisher and Dr. Mer- 
riam. At the close of the discussion Mr. D. G. Elliot was 
called on to read a memorial paper on Charles Emil Bendire, 
written by Dr. J. 0. Merrill, of Washington, who was un- 
avoidably absmt. 
While the sessions of the Union are to be held during the 
day, Mr. D G. ElUot will give an illustrated lecture in the 
lecture hall of the Museum, on Wednesday at 8 P. M., on A 
Naturalist's Expedition to East Africa. 
The session of Tuesday was remarkably well attended, and 
the interest in it seemed great. 
Liinnaean Society of New York. 
Aeegulae meeting of the society will be held in the 
American Museum of Natural History, on Tuesday evening, 
Nov. 23, at 8 o'clock. Edwin I Haines will read a paper 
on "The nesfing of Briianich's Murre (Uria lomvia) at New 
Roohelle, N. Y." 
Ernest lugersoll: "Birds' Eggs from an Evolutionist's 
Point of View." 
Ernest Seton Thompson: "The Mammals and Summer 
Birds of the Yellowstone National Park." 
Waltek W. Granger, Secretary. 
Amebicau Mttseom of Natural History. 
^ni^ md 0twu 
The "Brief's" Pictures. 
There are twenty-nine illustrations in the current edition of Game, 
Laws in Brief, most of them full-page half-tones, and all admirably 
printed. The book is a beauty, and well worth having for the illus- 
trations which, Mr. Charles Hallock says, so well represent America's 
wilderness sports. The Brief gives all the laws of the United States 
and Canada for the practical guidance of anglers and shooters. As 
an authority, it has a long record of unassailed and unassailable ac- 
curacy. Foi-estand Stream Pub. Co. sends it postpaid for 25 cents, 
or your dealer will supply you. 
QAHE SALE DECISION. 
COURT OF APPEALS, DISTRICT OF COLUMBIA. 
Charles H. Javinp, John F. Javins "I 
and Frank H Javins, otherwise 
called Francis H. Javins, appel- [ ^ 
Ian IS, [ • 
vs. I 
The United States. J 
The appellants in this case were indicted as Charles H. 
Javins, John F. Javins and Frank H. Javins, otherwise 
called Francis H. Javins, all of the District of Columbia, for 
that, 071 the lUh day of MaroJh, 1897, they had in their pos- 
session, and exposed to sale, six dead partridges, otherwise 
called quail, against the form of the statute, etc. 
The presentment or indictment was found under Section 
1, of the act of Congress of June 15, 1878, Chapter 213, en- 
titled "An Act for the preservation of game-and protection 
birds in the District of Columbia." The appellants 
^"**'aded the general issue of not guilty; and upon the evi- 
^iice, and under the instructions of the court, the jury 
ound the appellants guilty, and the court thereupon im- 
posed the penalty prescribed by the statute. It is from that 
judgment that this appeal is taken. 
Section 1 of the act under which the indictment was 
found provides, "That no person shall kill or expose for 
Bale, or have in dtJier Ms w her possession, either dead or alive, 
any partridge, otherwise quail, between thelstday of Feb- 
ruary and the 1st day of November, under a penalty of 
five d'Jllars for each bii^J go killed or in smmsion." 
The Government proved that the appellants, as partners 
and dealers in game and fish at the Center Market, in the 
city of Washington, had, on March 16, 1897, in possession, 
at their place of business, and exposed for sale, one par- 
tridge, otherwise quail; and thereupon rested its case. 
The appellants then gave evidence to prove that the par- 
tridges, otherwise quail, were shipped to them with other 
quail in regular course of trade from Illinois or Missouri, a 
few days prior to the 16th day of March, 1897, and were 
not killed in the District of Columbia; and the appellants 
thereupon rested their case. And no other evidence being 
offered by either side, the appellants severally prayed the 
court to instruct the jury — 
First — "That if the birds found, in the possession of the 
defendants were not killed, entrapped or taken in the 
District of Columbia, then they should render a verdict for 
the defendants; 
Second — "That if the bird offered for sale, or found in the 
possession of the defendants, was not killed, entrapped or 
taken in the District of Columbia, but was shipped to the 
defendants from without said District, they should render 
a verdict for the defendants; 
Third — "That unless the jury should find beyond a rea- 
sonable doubt that the birds in question were killed in the 
District of Columbia, the defendants should be acquitted." 
The court refused these prayers for instruction, and di- 
rected the jury that the evidence offered by the defend- 
ants was immaterial, and constituted no defense to the in- 
dictment. To which ruling the appellan^^s excepted; and 
the verdict and judgment being against them, they have 
appealed. 
It being conceded that the birds were taken or killed 
beyond the limits of this District, the question is, whether 
the parties having them in possession in this District for 
sale, have incurred the penalty prescribed by the statute. 
The fact that the birds were taken or killed in one of 
the States of the Union and brought into this District for 
sale, in the regular course of trade, does not furnish the 
possessors of such game birds immunity from the penalty 
prescribed by the statute, upon any principle of interstate 
commerce involved. Greer vs. Connecticut, 161 U. S. 519. 
Congress, under the Constitution, possessing plenary legis- 
lative power over this District, may pass laws for the full 
and complete protection and preservation of all game birds 
or other animals ferm naturce therein; and whatever may 
be the natural right of man in such wild creatures when 
captured and reduced to possession, such right may be re- 
strained by positive laws enacted for reasons of State or for 
the supposed benefit of the community. 2 Bl. Com. 410; 
Greer vs. Connecticut, supra. All civilized nations, from 
the earliest time, have enacted and enforced game laws, 
for the protection of game in which there was a common 
right against wasteful and indiscriminate destruction. 
Laws of this character, of more or less strictness, are found 
upon the statute books of England, and of most, if not all, 
of the States of this Union; and at no time has there been 
greater need of such laws, and their enforcement, than at 
the present time; for it is a known fact that our game and 
insectivorous birds are being rapidly exterminated. In 
order to prevent evasion of the law, and as a certain means 
of accomplishing the desired end, many of the game laws 
make it a substantive offense for a party, within the time 
and territory prescribed, to have in his possession, either 
dead or alive, any of the birds or animals sought to be pro- 
tected. Otherwise the difficulty of proving the time and 
place of taking or killing such game would effectually de- 
feat the operation of the law. Indeed, in a small terri- 
tory, such as this District, it would be impossible to pro- 
tect the birds, if they could be killed or taken on the ex- 
terior border to be brought into the District. The only 
effectual way of dealing with the subject is to prohibit the 
possession of the birds within the District, and that is en- 
tirely within the power of Congress. 
In this case the whole question is one of construction. 
The terms of the statute are clear and unambiguous. The 
killing, or offering for sale, of any of the birds specified is 
prohibited; and also the having in possession, either dead 
or alive, any partridge, otherwise quail, within this District 
between the Ist of February and the 1st of November, 
renders the party liable to a penalty of |5. The conten- 
tion is, that this provision of the statute does not apply 
to birds killed or taken beyond the limits of the District 
of Columbia. But to this contention we cannot assent. 
This same contention has been urged in many of the 
States whose game laws are similar to the one under con- 
sideration; and while in some few States the construction 
would seem to be variant, and give sanction to the con- 
tention urged, the decided preponderance of judicial opin- 
ion is against such contention. And this would seem to 
be supported both upon reason and sound policy. In- 
deed, the Act of Congress under consideration would 
seem to furnish the key to its own proper construction, if 
such were needed, by the provision of the fourteenth sec- 
tion, which declares: "That person in killing birds for 
scientific purposes, or in possession of them for breeding, shall 
be exempt from the operation of this act, iy\proving affirm- 
aiively such purposes/ and the possession shall, in all cases, 
be pj'esiimptive edidenoe of unlaicful purpose." This excep- 
tional purpose, therefore, is in all cases to be proved by 
tlie defendant; iand^ in the a.b3ence Qf such affirmative 
proof, the presumption is conclusive of the unlawful pur- 
pose of the possession. 
As showing the interpretation of statutes similar to that 
under consideration, by State courts, we shall refer to a 
few of those decisions, and which are referred to in Greer 
vs. Connecticut, supra, with apparent approval. 
The first of such decisions to which we shall refer is 
Phelps vs. Racey, 60 N, Y. 10, where the statute declared 
that no person should expose for sale, or kill, or have in his 
possession after it had been killed, any quail or other game, 
between the 1st of January and the 20th of October. The 
defendant was indicted for having quail in his possession 
in March. He had invented an apparatus to preserve 
game, and that which he had in his possession, and speci- 
fied in the indictment, according to his proof, was killed 
in New York in the open season, or received from Minne- 
sota or Illinois, where the killing at the time was legal, 
and put up by him in his apparatus in the month of De- 
cember. This, to say the least of it, was a questionable 
defense, and such as to justify, upon principle of policy, 
the entire exclusion of it. It was contended that the 
statute did not apply to game so received and preserved. 
But it was held otherwise by the Court of Appeals; and in 
an opinion of the court, delivered by Church, Chief Jus- 
tice, it was said: "The language of these sections is plain 
and unambiguous; hence there is no room for construction. 
It is a familiar rule that, when the language is clear, 
courts have no discretion but to adopt the meaning which 
it imports. The mandate is, that 'any person having in 
his or her possession' between certain dates, certain speci- 
fied game killed, shall be liable to a penalty. The time 
when, or the place where, the game was killed, or when 
brought within the State, or where from, is not made 
material by the statute, and we have no power to make it 
so. * * * That it was either killed within the lawful 
period, or brought from another State where the killing 
was lawful, constitutes no defense. The penalty is de- 
nounced against the selling or possession after that time, 
irrespective of the time or place of killing." 
The same principle was applied in the construction of 
the game law of the State of Illinois of 1879, which made 
it unlawful to sell, or have in possession, quail and certain 
other game birds, during the close season, and which was 
not in terms limited to birds taken within the State. In 
the case of Magner vs. People, 97 III. 323, Scholfield, J., in 
delivering the opinion of the court, said: "We think it is 
obvious that the prohibition of all possession and sales of 
such wild fowls or birds during the prohibited seasons 
would tend to their protection, in excluding the oppor- 
tunity for the evasion of such law by clandestinely taking 
them, when secretly killed or captured here, beyond the 
State, and afterward bringing them into the State for sale, 
or by other subterfuges and evasions. It is quite true that 
the mere act of allowing a quail netted in Kansas to be 
sold here does not injure, or in anywise affect, the game 
here, but a law which renders all sales and all possessions 
unlawful will more certainly prevent any possession or 
any sale of the game within the State than will a law 
allowing possession or sale here of the game taken in 
other States. This is but one among many instances to 
be found in the law where acts, which in and of them- 
selves alone are harmless enough, are condemned because 
of the facility they otherwise afford for a cover or disguise 
for the doing of that which is harmful." The same prin- 
ciple and reasoning were adopted and followed in the 
subsequent case, of the American Express Co, vs. People, 
133 111. 649, arising under the amended game law of 
Illinois of 1889. 
Similar construction of game laws of like import have 
been adopted in Ohio in the case of Roth vs. State, 51 
Ohio, St. 209, and in Missouri in the cases of State vs. 
Randolph, 1 Mo. App. 15, and State vs. Farrell, 93 Mo. 176. 
And in the State of California, in a full and well reasoned 
opinion by the Supreme Court of that State, in the case of 
Ex parte. Maier, 103 Gal. 476, the same construction was 
fully adopted. In that case it was held that the State, in 
the exercise of the police power, could prohibit the taking 
of wild game and any traffic or commerce therein, if 
deemed necessary for its protection or preservation, or the 
public good, and to this end could make it criminal for 
any person to sell, or offer for sale, any of such game, 
whether killed within or without the State. 
It is true, there are several States in which a different 
construction would seem to prevail, though made of 
statutes somewhat different in terms from the statute here 
involved. This appears in Com. vs. Hall, 128 Mass. 410; 
Com. vs. Wilkinson, 139 Pa. St., 304; State vs. McGuire, 24 
Oregon, 366; Dickhaut vs. State (Md.) 37 Atl. Rep. 21. 
These cases, however, do not appear to be supported by 
such weight of argument as to countervail and require to 
be disregarded the cases holding a contrary doctrine. 
In this case, as we have said, the words of the statute 
are plain and unambiguous, and that being so, Congress 
must be intended to mean what the language employed 
plainly expresses, and consequently there is no room for 
construction. The court is not at liberty to read into the 
statute an exception to the general and unqualified pro- 
vision, there being no such exception expressed, and 
where, indeed, by clear implication, such exception is ex=. 
eluded. 
