^06 
FOREST AND STREAM. 
[March 12, 1898. 
(1) Are the Dakota statutes in conflict with the 
"privileges and immunities" clause of the Constitution? 
This clause is found in the Constitution of the United 
States, Article IV., Section 2, which says: 
"The citizens of each State shall be entitled to all 
privileges and immunities of citizens of the several 
States." 
(2) Are the Dakota statutes in conflict with the 
"equal protection of the laws" clause of the Constitution ? 
This clause is found in the Amendments to the Consti- 
tution of the TJnited States, Article XIV., Section i, 
which says: 
"All persons born or naturalized in the United States 
and subject to the jurisdiction thereof are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens. of the 
United States, nor shall any State deprive any person 
of life, liberty or propertj^ without due process of law, 
nor deny to any person within its jurisdiction the equal 
protection of the laws." 
Inasmuch as the discussion of the above questions 
may require some length, it seems as well to give here 
the" answers, and then try to protect the answers by 
building for them a fortification of precedent in legal 
decision. 
I think a negative reply should be given to each one 
of our questions, though any one familiar with "the 
dry bones of the law" will probably pardon me for ad- 
ding that I venture this opinion with hesitation. One 
can never be sure of what conclusion courts will come 
to upon questions arising under the Constitution of the 
United States. 
Now for our attempt to make a fortification in pro- 
tection of the answers given above. 
At the very outset it becomes necessary to get a clear 
and distinct notion of the nature of the property in game 
as recognized by law. For this purpose we cannot do 
better than to refer to the opinion of Mr. Justice White 
in the Geer case. The Justice has there, with great care 
and with keen judicial reasoning, traced this subject 
from the earliest days down to the present. Any one 
interested should certainly read in full the opinion of 
Mr. Justice White; but in this article it will perhaps 
suffice to give in a brief and general way merely the 
conclusions to which the Justice comes. These con- 
clusions are that tmcaptured wild game in a State be- 
longs to the people in their collective sovereign capacity, 
and that the States have the right to control and regu- 
late the common property in game. The Justice says 
in his opinion: 
"While the fundamental principles upon which the 
common property in game rests 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 the 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 
distinct from the people, or for the benefit of private 
individuals, as distinguished from the public good. 
Therefore for the purposes of exercising this power the 
State, as held by this court in Martin against Waddell, 
16 Peters 410, represents its people, and the ownership 
is that of the people in their united sovereignty._ The 
common ownership 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 sub- 
ject 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 com- 
merce in it if it is deemed necessary for the protection or 
preservation of the public good.'— Ex parte Maier, 103 
California 476. 
"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 ot 
wild animals, so far as they are capable of ownership, 
is in the State, not as a proprietor, but in its sovereign 
caoacity as the representative, and for the benefit of all 
its people in common.' — State against Rodman, 58 Minn. 
393.' " - . 
The learned Justice says also in a later portion of his 
opinion that the State has power to preserve game under 
the police power. , • j r 
"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 anotheF.,view of the power of the State 
in regard to the property in game, which is equally con- 
clusive. 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 caUed 
into play, because by doing so interstate commerce may 
be remotely and indirectly affected (cases cited). In- 
deed the source of the police power as to game birds 
(like those covered by the statute here called m ques- 
tion) flows from the duty of the State to preserve 
for its people a valuable food supnly. (Cases cited.) 
"The exercise by the State of such power therefore 
comes directly within the principle of 'Plumley against 
Massachusetts,' IS5 United States 461, 473. The power 
of a State to protect by adequate police regulation its 
people against the adulteration of articles of food (which 
was in that case maintained), although in doing so com- 
merce might be remotely affected, necessarily carries with 
it the existence of a like power to preserve a food 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 except with the consent of the State, and sub- 
ject to the conditions which it may deem best to im- 
pose for the public good." . , , , 
Having now gained, I hope, a clear idea of the nature 
of the property in uncaptured wild game, and the power 
of the State to regulate the taking of game, we are m 
a position to examine the statutes in question, and see 
whether they are likely to stand or fall if the batteries 
of the Constitution of the United States are ever brought 
to bear upon them. _ . . „ , 
Taking up first the "privileges and immunities clause 
of the Constitution, does the statute which charges a 
non-resident $25 for the permit allowing him to shoot 
violate one of his "privileges or immunities" under the 
Constitution of the United States? It would seem not, 
for, whatever may fairly come under this clause of the 
Constitution, it is tolerably certain that the right to shoot 
would not come under it. The right to shoot is a right 
which tends (strongly or weakly according to how well 
he can shoot) to give the shooter an interest in the com- 
mon property, that is, in the wild game, of the citizens 
of another State. It is held that "The second section of 
the fourth article of the Constitution, which declares that 
'The citizens of each State shall be entitled to all privil- 
eges and immunities of citizens of the several States,' 
does not vest the citizens of one State with any interest 
in the common property of the citizens of another State." 
See Macready against Virginia, 94 United States 391. 
In that case it appears that "A law of Virginia by which 
only such persons as are not citizens of that State are 
prohibited from planting oysters in the soil covered by 
her tide waters is neither a regulation of commerce nor 
a violation of any privilege or immunity of interstate 
citizenship." 
Mr. Chief Justice Waite says in his opinion: "The 
principle has long been settled in this court that each 
State owns the beds of all tide waters within its juris- 
diction unless they have been granted away. (Cases 
cited.) In like manner the States own the tide waters 
themselves and the fish in them, so far as they are capa- 
ble of ownership while running. For this purpose the 
State represents its people, and the ownership is that of 
the people in their united sovereignty. Martin against 
Waddell, 16 Pet. 410. The title thus held is subject 
to the paramount right of navigation, the regulation of 
which, in respect to foreign and interstate commerce, 
has been granted to the United States. There has been, 
however, no such grant of power over the fisheries. 
These remain under the exclusive control of the State, 
which has consequently the right in its discretion to 
appropriate its tide waters and their beds to be used 
by its people as a common for taking and cultivating 
fish, so far as it may be done without obstructing navi- 
gation. Such an appropriation is in eflfect nothing more 
than a regulation of the use by the people of their com- 
mon property. The right which the people of the State 
thus acquire comes not from their citizenship alone, but 
from their citizenship and property combined. It is 
in fact a property right, and 'not a «iere privilege or 
immunity of citizenship. 
By Article IV., Section 2, of the Constitution the cit- 
izens of each State are "entitled to all privileges and 
immunities of citizens in the several States." Mr. Jus- 
tice Washington, in Corfield against Coryell, 4 Wash, 
c. c. 380, thought that this provision extended only to 
such privileges and immunities as are "in their nature 
fundamental; which belong of right to the citizens of 
all free governments." And Mr. Justice Curtis, in Scott 
against Sandford, 19 How. 580, described them as such 
"as belonged to general citizenship." But usually when 
this provision of the Constitution has been under consid- 
eration the courts have manifested the disposition not 
to attempt to define the words, but "rather to leave their 
meaning to be determined in each case upon a view 
of the particular rights asserted or denied therein." This 
clearly is the safer course to pursue when, to use the 
language of Mr. Justice Curtis, in Conner against El- 
liott, "we are dealing with so broad a provision, involv- 
ing matters not only of great delicacy and importance, 
but which are of such a character that any merely ab- 
stract definition could scarcely be correct, and failure 
to make it so would certainly produce mischief. 
"Following then this salutary rule, and looking only to 
the particular right which is here asserted, we think we 
may safely hold that the citizens of one State are not in- 
vested by this clause of the Constitution with any in- 
terest in the common property of the citizens of another 
State. If Virginia had by law provided for the sale of its 
once vast domain, and a division of the proceeds among 
its own people, no one, we venture to say, would con- 
tend that the citizens of other States had a constitutional 
right to the enjoyment of this privilege of Virginia cit- 
izenship. Neither if, instead of seUing, the State had ap- 
propriated the same property to be used as a common 
• by its- people for the purposes of agriculture, could the 
citizens of other States avail themselves of such a priv- 
ilege. And the reason is obvious; the right thus granted 
is not a privilege or immunity of general, but of spe- 
cial, citizenship. It does not "belong of right to the 
citizens of all free governments,' but only to the citizens 
of Virginia, on account of the peculiar circumstances 
in which they are placed. They and they alone owned 
the property to be sold or used, and they alone had the 
power to dispose of it as they saw fit. They owned it, 
not bv virtue of citizenship merely, but of citizenship and 
'domicile united; that is to say, by virtue of a citizenship 
confined to that particular locality. 
" * * * Virginia, owning .land under water adapted 
to the propagation and improvement of oysters, has seen 
fit to grant the exclusive use of it for that purpose to 
the citizens of the State. In this way the people of Vir- 
ginia may be enabled to produce what the people of 
the other States cannot; but that is becaixse they own 
property which the others do not." 
It wotild seem that the point decided in the Virginia 
case was extremely like the point we are trying to de- 
cide. If we change the language used in the last part 
©f the above quotation from the Virginia case to make 
the language fit the facts of our case the result appears 
to bring about a chain of reasoning which is as good for 
our question as it was good in the Virginia case. We 
have this language produced by the change: "The Da- 
kotas, owning the uncaptured wild game in their respec- 
tive States, have seen fit to make restrictions as to the 
pursuit of that game which are harder on non-residents 
than on residents. In this way the people of the Dakotas 
may be enabled to get game in a way that the people of 
the other States cannot; but that is because they own 
property which the others do not." 
The language in the Maier case quoted above, in the 
opinion of Mr. Justice White, seems strong to show 
that the Dakota statutes are good under the "privilege 
and immunity" clause of the Constitution. Surely if 
the people of the State may "absolutely prohibit" the 
taking of game they may regulate it as they have done in 
the Dakotas. 
Now we come to our second question, namely: 
Are these statutes good under the "equal protection 
of the laws" clause of the Constitution? 
Here the Macready case seems to give us more as- 
sistance wh"6n it says: "But that is because they own 
property which the others do not." We find that the 
basis of classification in the Dakota statutes is the own- 
ership of property. The people resident in the State, 
the owners of the property in the wild game, are formed 
into one class; the non-residents, who do not own such 
property in the game, are formed into another class. 
It is certainly fair to make classes, with this good and 
valid distinction between them as a basis. 
When once the classes are formed, every one in the 
same class is treated alike, and no one is denied the 
equal protection of the laws. Each man gets as much 
protection as does every other man in his class. When 
you can prove that the basis of classification is a fair 
one, and that all in a class are treated in exactly the 
same way, the "equal protection" clause of the Con- 
stitution is satisfied. 
In Home Insurance Company against New York, 134 
United States 594, the court, speaking throup-h Mr. Jus- 
tice Field, said: "Nor does the amendment (14th) pro- 
hibit special legislation. Indeed the greater part of all 
legislation is special, either in the extent to which it op- 
erates or the objects sought to be obtained by it, and 
when such legislation applies to artificial bodies it is not 
open to objection if all such bodies are treated alike un- 
der similar circumstances and conditions in respect to 
the privileges conferred upon them, and the liabilities to 
which they are subjected. Under the statute of New York 
all corporations, joint stock companies and associations 
of the same kind are subjected to the same tax. There is 
the same rule applicable to all under the same condi- 
tions in determining the rate of taxation. There is no 
discrimination in favor of one against another of the 
same class." (Citing a long list of authorities.) 
If our reasoning is correct, it appears that sportsmen 
must put up with the burdens of these Dakota statutes. 
The only other way open to them seems to be to "Move 
your family westward," as the old song goes. Ardent 
sportsmen may find it advantageous to go to the Da- 
kotas and become bona fide domiciled residents of those 
States. The many worthies who of late years have been 
going to the Dakotas for their divorces seem to have 
found material advantages in gaining a Dakota domicile. 
Yet there may be one more way left to the non- 
resident gunners. Why could they not become owners, 
"in whole or in part," of one quarter section of culti- 
vated lands a year before the shooting season? The 
part of the quarter section owned by the sportsman might 
be a very small one and yet come within the statute. 
Dotibtless some obliging farmer friend could be per- 
suaded to sell out a very, very small interest in the quar- 
ter section. Who knows but that this may not be after all 
the solution of the question? If it is, we have a modern 
illustration of the way in which statutes were evaded 
long ago. Mr. Williams says of a method of evasion of 
an old statute relating to real property: 
"It was not long, however, before a 'loop hole was 
discovered in this latter statute, through which, after 
a few had ventured to pass, all the world soon followed. 
Perhaps all the world of sportsmen will follow some 
daring gunner through this "loon hole" in the North 
Dakota statute, if "loop hole" it should prove to be. 
William A. Talcott, Ju. 
No. -W Broad Stkekt, New York. 
"Washington's Depleted Game Fields. 
Oroville, Wash., Feb. 24, iSgS.— Editor Forest and 
Stream: Along the Okanogan River, below Oroville, 
there is a very rough country, and to take a birdseye 
view of it from a distance one would not think there was 
level ground enough on which to set a hen; but when 
you get up among the rocks there are numerous little 
flats, and the grass and weeds start there much earlier 
than anywhere else, and the deer come out from the 
mountains to get the first green food of the year. 
Friday, Feb. 18, as I came down from Oroville, 1 met 
eight Indians, all on foot, going hunting up in the rocks. 
As the Chinook wind was blowing from the south, the 
Indians went up to the north end, and then scattered 
out and hunted back for some five miles. The next day 
I saw one of them, and asked him how many deer they 
had killed; he told me one. I asked how many they had 
seen, and he said five. This shows that it will not be 
many years before venison will be a great luxury, as well 
to the Siwash as to his pale-faced brother. There are 
a few mountain sheep still left on Mount Chapacca, some 
twenty miles north and west of here. Our local paper 
gave an account of an old hunter killing five a few days 
ago, and wounding three more. 
Yesterday I met an old friend, who told me he had 
been at work up across the line, and that the deer were 
plentiful up there; and he had killed two at one shot 
this winter. He said the deer seemed to know just where 
the line was, and stayed well on the other side. And so 
it will not be long before magpies and coyotes will be 
the onlv kind of game left to be hunted by 
Lew Wilmot. 
Megfantic CIttb* 
At the antiual meeting of Megantic Fish and Game 
Corporation, held in Portland, Me., the following di- 
rectors were elected: Clarence A. Barney, Albert Bern- 
ard, L. Dana Chapman, S. F. Johnson, Dr. W. G. Ken- 
dall, W. A. Macleod, C. W. McConnell, D. C. Pierce, 
Arthur W. Robinson, H. W. Robinson, Harry W. San- 
born, F. W. Webb, Boston; George H. Burt, Hartford, 
Conn.; Philander Cutler, Binghamton, N. Y.; G. A. 
Gibson, Medford; A. W. Gleason, New York; Dr. J. 
B. Harvie, Troy, N. Y.; A. R. Justice, Philadelphia, Pa.; 
Jeremiah Richards, New York. 
Dr. George W^ Way. of Portland, was chosen clerk 
and L. Dana Chapman assistant clerk. The treasurer's 
account showed receipts with cash on hand at the be- 
ginning of the year of $15,812.48; expenses for the year 
with cash on hand at its close $15,812.48. The assets of 
the club in cash, bills receivable and value of the prop- 
ertv held amounts to $23,621.64, against which are liabil- 
ities to the amount of $4,161.17, not including capital 
stock and surplus account, and of these liabilities the 
amount of $3,650 is in mortgage and bonded indebted- 
ness, leaving the floating indebtedness $5^1.17, against 
which the club has accounts receivable of $1,503.11. 
