46 
FOREST AND , STREAM. 
The Washington Game Case. 
In the Cifcoit Court of tne United States, District of 
Washington Eastern Division. 
In re Davenport. Opinion filed June IS, IQOO- 
Petition for writ of habeas corpus. Case argued and 
submitted on the petition and return. Petitioner dis- 
charged. 
Forster & Wakefield for Petitioner. 
Mount & Merritt for Respondent. 
Hanford, District Judge. 
By the record in this case it appears that the peti- 
tioner, L. M. Davenport, is a citizen of the State ot 
Washington, and is the keeper of a restaurant m the city 
of Spokane; upon an information accusing him of vio- 
lating a statute of this State enacted for the protection 
of wild game, filed in the Superior Court of the State 
of Washington for Spokane county, a warrant m due 
form was issued out of said Superior Court, and the 
petitioner was arrested by the sheriff and imprisoned, 
awaiting trial; thereupon he filed his petition in this 
court, invoking the power of this court to release hirn 
from imprisonment bv a writ of habeas corpus; a writ 
was issued and served; the sheriff has made a return 
setting forth the warrant, together with a copy of the 
information and an agreed statement of facts upon 
which the information is founded in the form of a stipu- 
lation signed bv attorneys in behalf of the State of 
Washington and by the defendant's attorneys. The ma- 
terial part of said stipulation is as follows: 
"That the said L. M. Davenport is a resident of the 
city of Spokane, Spokane county. State of Washington, 
and that he is conducting a restaurant in said ci1;y, and 
that on March i, 1900, he had in his possession m said 
county and State, and oft'ered for sale and sold therein 
as a portion of a meal, one quail, and that the said quail 
was a portion of a box of quail tliat the said Davenport 
had purchased in the city of St. Louis, State of Missouri, 
and caused to be shipped into the State of Washington, 
and that the said quail when taken m the State of Mis- 
souri was lawfully taken under the laws of said State. 
The statute upon which the prosecution of the peti- 
tioner is founded reads as follows: 
"Everv person who shall offer for sale or market, or 
sell or barter, any moose, elk, caribou, killed in this 
State, antelope, mountain sheep, or goat deer, or the 
hide or skin of any moose, elk, deer or caribou, or any 
grouse, pheasant, ptarmigan, partridge, sage hen, praine 
chicken or quail, at any time of the year, shall be guilty 
of a misdemeanor, and upon conviction thereof shall be 
punished as hereinafter provided." Laws of Wash., 1899, 
p. 278, Sec. 3. 
The grounds upon which the petitioner asks for the 
protection of the Federal Court are that he is being de- 
prived of his liberty without due process of law, in vio- 
lation of the fifth and fourteenth amendments to the 
Constitution of the United States, because the act for 
which he is being prosecuted is not criminal, unless the 
State law above quoted shall be so construed as to make 
it a misdemeanor for a restaurant keeper in this State 
to cook and serve to his customers wild game lawfully 
captured in another State and lawfully imported into 
this State, and if thus construed the act is an attempt to 
restrain interstate commerce, and for that reason void. 
It is the petitioner's contention that the statute does not 
apply to sales of game not killed 01 taken within this 
State, or if the statute is applicable to the case in hand 
it is unconstitutional, and in either case he is being im- 
prisoned as if he were a criminal, although the act which 
is the basis of the charge against him is not malum in 
se, nor a violation of any valid statute. 
At the outset, the respondent questions the propriety of 
this court taking cognizance of the case. It is insisted 
that the point to be decided touches the sovereignty of 
the State; that a statute of the State must be construed 
and the Supreme Court of the State is the tribunal spe- 
cially authorized to determine finally all disputed ques- 
tions as to the true interpretation and meaning of the 
State laws, and as to their application to particular cases; 
that it is a misuse of the writ of habeas corpus tor a 
Federal Court, having no appellate or supervisory juris- 
diction over proceedings of the State courts, to issue 
that form of process for the purpose of controlling or 
defeating prosecutions under the penal laws of the State, 
and for these reasons the petitioner should be remanded 
and left to submit all questions as to his rights under 
the Constitution of the United States to be first de- 
termined by the State courts and to apply to the Su- 
preme Court of the United States by writ of error for 
redress in case any right which he claims under the con- 
stitution and laws of the United States should be denied 
to him by the courts of the State. I can readily assent 
to the several propositions advanced by counsel for the 
State of Washington in this part of their defense, as 
separate and abstract propositions, but to the aggregation 
as a conclusion applicable to this case I do not assent. 
It is settled by the decisions of the Supreme Court that in 
granting or refusing the Avrit of habeas cornvis when 
applied for by persons accused or convicted of crimes 
under State laws, the Circuit and District Courts of the 
United States are required to exercise sound discretion, 
and these courts are not to assume the burden of de- 
ciding whether accused persons are guilty or not guilty 
of acts which are criminal, nor interfere with the State 
government in the enforcement of its criminal laws, In 
any endeavor to control the decision of question of prac- 
tice, or as to the validity of statutes alleged to be re- 
pugnant to the Constitution of the State; and this court 
has steadfastly refused to consider the petitions of per- 
sons convicted of such crimes as murder, rape and em- 
bezzlement. In re Friederich, 51 Fed., 747, S. C. 149, U. 
S. 70-78. In re Moore, 81 Fed., 3S6. In re Considine. 
8'? Fed.. 157. But there is no moral wrong in the act of 
which the petitioner in this case is accused, and he is in- 
nocent of any offense, unless effect be given to the 
statute so as to deprive him of the right to import from 
other States supplies for his restaurant which are not in 
then^selves unwholesome nor deleterious to the health. 
morals or manners of the people. As the question of 
first importance in the case is whether the statute upon 
which the prosecution is based is repugnant to the Con- 
stitution of the United States, the case is a proper one for 
the Federal Court to deal with in the first instance, tor it 
the State has assumed to enact a law which violates the 
supreme law of the land it is the business of the Federal 
Courts within the State to protect individuals from being 
subjected to prosecutions Avhich amount simply to per- 
secutions and are violative of the rights guaranteed by 
the National Constitution. . , r 
It is unreasonable to presume that the Legislature ot 
the State of Washington intended to enact a law to pre- 
vent the slaughter of game in the State of Missouri, and 
the title of the statute under consideration shows that its 
object was to restrain the destruction of wild animals 
and birds within the State of Washington; nevertheless 
the prosecuting officers of the State, and the attorneys 
especially employed to prosecute this petitioner, insist 
that the statute above quoted was intended by the Legis- 
lature to be as broad as its words indicate, and that 
within the letter and spirit of the law it is a misdemeanor 
to sell within this State birds lawfully bought in another 
State, where they have been captured and killed, at a 
time and in a manner sanctioned by the laws of that 
State, and it is their contention that this statute is valid 
as a 'police regulation, the purpose of prohibiting the 
f^ale within the State of imported game being to prevent 
evasions of another section of the statute which prohibits 
the killing of game within the State, and to make^ it 
easier to detect violations of the game laws. It is in- 
sisted that the Legislature of this State has assumed 
to make it a misdemeanor for people within this State 
to have possession of or sell or use articles of food 
which are wholesome and entirely harmless, for the 
mere purpose of making it easier to enforce the game 
laws, and that this purpose existing, as suppo^-ed, in t' e 
Legislative mind is potential to validate a statute which 
but for the particular purpose would be unconstitutional. 
This proposition does not appear to me to be sound. 
In the motive suggested, there is no salt to cure the 
act of unconstitutionality, for if it is legitimate to pro- 
tect the interests of a few sportsmen by enacting a law 
which denies to the many all right to eat imported game, 
there can be no good reason for denying the power of 
the State Legislature to foster home industry by making 
laws to prohibit the sale within this State of imported 
domestic poultrjf, or beef, or butter. It would certainly 
be much easier to enforce our local inspection laws and 
insure the people against the risk of being defrauded by 
sale of bad meat or butter if our markets might be closed 
to importers of these commodities. But the unconstitu- 
tionality of all such local laws in restraint of interstate 
commerce has been definitely pronounced by the Su- 
preme Court. Necessity is declared to be the limit of the 
power of a State in the enactment of laws of this nature. 
That is to say, mere rules of convenience which inter- 
fere with traffic between States and which are not neces- 
sary as means of self-defense, are void, because they 
enter within the domain of the power committed by the 
National Constitution of the National Government. In 
the case of Ry. Co. vs. Husen, 95 U. S., 465-475, the 
opinion of the court by Mr. Justice Strong contains the 
following clear statement of the principle applicable to 
this case. "It may also be admitted that the police 
powers of a State justify the adoption of precautionary 
measures against social evils. Under it a State may 
legislate to prevent the spread of crime, or pauperism, or 
disturbance of the peace. It may exclude from its limits 
convicts, paupers, idiots and lunatics, and persons likely 
to become a public charge, as well as persons aflflicted by 
contagious or infectious diseases; a right founded, as in- 
timated in the Passenger Cases, 7 How., 283, by Mr. 
Justice Greer, in the sacred law of self-defense. Vide 
3 Sawyer, 283. The same principle, it may also be con- 
ceded, would justify the exclusion of property dangerous 
to the property of the citizens of the State; for example, 
animals having contagious or infectious diseases. All 
these exertions of power are in immediate connection 
with the protection of persons and property against 
noxious acts of other persons, or such a use of property 
as is injurious to the property of others. They are self- 
defensive. * * * While we unhesitatingly admit that 
a State may pass sanitary laws, and laws for the protec- 
tion of life, liberty, health or property within its borders ; 
while it may prevent persons and animals suffering under 
contagious or infectious diseases, or convicts, etc., from 
entering the State; while for the purpose of self-protec- 
tion it may establish quarantine and reasonable inspection 
laws, it may not interfere with transportation into or 
through the State, beyond what is absolutely necessary 
for its self-protection. It may not, tinder the cover of 
exerting its police powers, substantially prohibit or bur- 
den either foreign or interstate commerce. Upon this 
subject the cases in 92 U. S., to which we have referred, 
are very instructive. In Henderson vs. The Mayor, etc., 
the statute of New York was defended as a police regula- 
tion to protect the State against the influx of foreign 
paupers; but it was held to be unconstitutional, because 
its practical result was to impose a burden upon all pas- 
sengers from foreign countries. And it was laid down 
that, 'in whatever language a statute' may be framed, its 
purpose must be determined by its natural and reasonable 
effect.' The reach of the statute was far beyond its 
professed object, and far into the realm which is within 
the exclusive jurisdiction of Congress. So in the case 
of Chy Lung vs. Freeman, where the pretense was the 
exclusion of lewd women ; but as the statute was more 
far reaching, and affected other immigrants, not of any 
class which the State could lawfully exclude, we held it 
unconstitutional." 
In their argument, counsel for the State have directed 
my attention to the following authorities, which to some 
extent support their theory: Ex parte Maier, 103 Cal., 
476. 37 Pac, 402; Phelps vs. Racey, 60 N. Y., 10; State 
vs. Farrell, 27 Mo. App., 176; State vs. Schuman, 58 Pac, 
661; People vs. O'Neal, 68 N. W., 227; Roth vs. State, 
57 Ohio St., 209, 37 N. E., 259; Commonwealth vs. 
Savage, 29 N. E., 468; Geer vs. Connecticut, 161 U. S., 
519. I fully assent to the doctrine of these decisions, 
holding that it is competent for State Legislatures to enact 
laws for the protection of game, and I do not question the 
decision of the Supreme Court of the United States in the 
case last cited, holding that the Legislature of a State 
h&s the constitutional power to entirely prohibit the 
killing of game within the State for the purpose of con- 
veying the same beyond the limits of the State, for it is 
true, and it is an elementary principle that the wild game 
within a State belongs to the people in their collective 
sovereign capacity. Game is not the subject of private 
ownership except in so far as the people may etect to 
make it so ; and they may, if they see fit, absolutely pro- 
hibit the taking of it, or traffic or commerce in it. But 
the power of a Legislature in this regard only applies 
to game within the State, which is the property of the 
people of the State, and no such power to interfere with 
the private affairs of individuals can affect the right of a 
citizen to sell or dispose of, as he pleases, game which 
has become a subject of private ownership by a lawful 
purchase in another State. This decision of the Supreme 
Court does not directly, nor indirectly, support the 
proposition that the Legislature of one State has the con-" 
stitutional power to prohibit traffic in game imported from; 
another State, and the other cases cited by counsel which" 
do seem to sustain their contention are not binding as 
authorities in this court, and as they do not in my 
opinion rest upon sound principles, I must decline to 
defer to them. 
It is my conclusion that the statute of the State under 
which the petitioner is being prosecuted, if applicable at. 
all to the facts of his case, is unconstitutional and void,, 
and therefore the petitioner is restrained of his liberty in 
violation of the constitution of the United States, and 
it is the duty of this court to set him at liberty. 
Peitioner discharged. 
C. H. Hant-ord, Judge. 
Adirondack Moose Stockirijg:. 
Boston, July 13. — Editor Forest and Stream: I have; 
for a long time had the idea that it would be possible to: 
restock the Adirondacks — or some portions of them — 
with moose, and possibly with caribou, and that if it were 
possible it would be an extremely interesting and de- 
sirable thing. The discussions in your columns as to^ 
when and where and by whom the last Adirondack moose 
was killed have had a pathetic interest, but I confess I 
should find more interest in the question: "When and! 
where and by whom shall the next pair of moose be 
turned loose in Adirondack forests?" 
I came near writing you about all this a week or two 
ago, and now your editorials on the proposed rein- 
troduction of the wild turkey into the forests of Ontaric 
and the increase of the beaver in Maine determine me tc 
make my plea for the moose. 
We have no preat game preserve in Maine, save in sc 
far as the northern half of the State is in some sense still 
a game preserve, and will continue to be for a little while 
to come. But it will be but really a very little while ever 
in Maine before people will be discussing who killed th( 
last moose within the borders of the State. It is a verj 
great pity that we haven't a great tract twenty-five milei 
square, including Katahdin Mountain and a stretch of the 
wilderness north of it, set apart forever by State 01 
United States action, or both, surrounded by a barbec 
wire fence a dozen feet high, watched by efficient warden; 
and sacred forever to the preservation of the wildernesi 
and containing within its borders ample room for thi 
unmolested growth and development of all the nativ( 
life of forest and stream. I have my heart set on sucl 
a reservation in Maine, and have advocated it and agi 
tated for it in a private and tentative sort of way fo: 
years. 
But to return to the Adirondacks. Are there not ii 
that region now reservations and protected tracts o 
sufficient extent to warrant restocking with moose?_ 
am not personally familiar with many parts of the region 
but remember the showing it made in Forest ani 
Stream's list of reservations, published some time ago 
and feel hopeful that there are several tracts where rnoos: 
could now be liberated with a fair chance of uninteis 
rupted development. 
I have always understood that the moose of tlii 
Corbin Park, in New Hampshire throve well and multi 
plied, and have the impression that, according to esti 
mate, there are now in that park upward of a hundrei 
moose. Perhaps this locality would indeed furnish th| 
needed stock. 
If moose can again be liberated in Adirondack reserva 
tions I believe there are men living who may yet see tha 
region a surer source of supply of moose than Main, 
itself, unless indeed we get the "Maine Park" starte( 
pretty soon. 
As to caribou the problem is a different one, but 
would advocate making the experiment. It would be 
most interesting thing to ascertain whether this lawless 
nomadic, mysterious creature would submit to an 
kind of territorial restraint. 
I don't remember any certain testimony as to th 
former existence of the caribou in the Adirondacks, bt 
can hardly doubt that it was found there in the earl 
days, and might be made to flourish there again. 
By all possible means restore the wild turkey and tb 
beaver to any regions where the thing can be done, 
have scarce forgiven myself for killing my one beave 
inani' years ago in Maine, and have delighted in the re 
cent increase of the beaver there. Twice I have visite 
the colony on Kennebago Stream for the purpose c 
watching them and studying their wonderful and sagi 
clous work — and vastly interesting it was — and is not th 
most gratifying thing about it the new feeling on th 
part of visitors and natives alike of interest in the lil^ 
and preservation of these creatures rather than in tha 
death? As to wild turkeys, I have always mourned th{^ 
extinction in New England, and never see the easter 
slope of Mt. Tom in the Connecticut valley withotj 
wondering if possibly — just possibly — ^there may not stjf 
linger somewhere on its slopes or in its ravines a sing 
pair, cunning and silent now — trained to the repressic 
of every note. And why should not a Mt. Tom Wi' 
Turkey Reservation be at once created, and the nol 
bird be again installed there? I believe^ the growth 
public sentiment would almost warrant it, and that 
bird could be protected and that the valley people woulJ 
have a thousand times more interest in their mountain 
they knew it was again the home of the wild turkey. 
But this letter was supposed to be about restockinj 
the Adirondacks with m.oose ! Mr. Editor, am T "barkin, 
up the wrong tree" in this matter? C. H. Ames, 
