Nov, ^4, ipoo,] 
FOKKST AND STREAM. 
411 
iorbidden — that ,is to say, fish in the waters of this State, 
and not those procured in a foreign country. It is simply 
a perversion of the statute to hold tnat the mere posse.-.sicn 
by any person within th.s State of the fish described in 
the statute during the close season is a violation of it, 
without regard to the pJacc where it was procured, or to 
the manner obtained. {CommomneaUh v. Hall, 128 Mass. 
410; People V. Neil, 71 Mich. 325.) 
It has long been the practice with keepers of summer 
hotels in this State to purchase at the proper season of 
the year in Canada, and in other States, game in large 
quantities and preserve it in cold storage for use in the 
close season, but if this statute is to receive the narrow 
^nd literal reading contended for they are all subject to 
indictment and civil penalties, since they are certainly 
possessed of this game during the forbidden period. 
There is scarcely a county of this State in which private 
fish ponds are not to be found, constructed and main- 
tained by private persons on their own land, in which fish 
of the species described in the statute are kept and propa- 
gated. The fish in such ponds are private property. They 
have been reduced to possession and are within the 
dominion of the owner. Is it a violation of the statute 
for a person to catch or kill fish from his own private 
pond? If it is, and the owner refrains from it during 
the close season, he will still violate the law, since he is 
possessed of the fish all the time, and the only way he 
can escape from the pains and penalties of the statute is 
to open the pond and let the fish out. 
In the case at bar the statute is pushed Isy a literal 
reading to a point quite as unreasonable. In my opin'on 
the law has no reference or application to a case where the 
fish have been imported from a foreign country. The 
conceded facts of this case take, it out of the reason and 
policy of the law. 
But it is argued that unless the statute is construed to 
inhibit the possession, during the close season, of fish 
imported from a fore'gn country, it cannot be enforced, 
but will be evaded by false swearing. This means that 
if the summer hotel keeper, the owner of the private 
pond and the foreign importer, under the circumstances 
stated, are allowed to escape, then some one else may 
falsely pretend that his possession of fish during the close 
season was obtained in a similar manner when in fact 
he is really guilty of violat ng the law by procuring 
them from the waters of the State. This argument seems 
to be based upon the notion that unless the innocent are 
convicted the guilty may escape. It assumes that in the 
interpretation of a penal statute, such a remote danger 
must be anticipated and guarded against. I think it puts 
rather too much faith in the potency of perjury as a 
defense to an honest claim, and too little in the capacity 
of courts and juries to distinguish truth from false- 
hood. When it was proposed to change the criminal 
law and permit an accused person to testify in his own 
behalf, the proposition was for a long time resisted by 
similar arguments. It was said that the temptation to 
svvear falsely under srtch circumstances was so great that 
crime could tiever be punished if the accused was per- 
mitted to testify in his own behalf; whereas experience 
has shown that a person on trial for a penal oft'ense very 
rarely, if ever, helps his case by falsehood. Indeed, it 
may be safely asserted that the new law, instead of 
thwarting justice, as antic-pated. has been a very great 
aid in the enforcement of the criminal law. There is not 
the slightest reason for giving a strained and unnatural 
construction to the statute in question in order to meet 
such an imaginary danger. The possesison of the fish or 
game at the forbidden season, within this State, is prima 
facie evidence that the possessor has violated the law, and 
the burden is then cast upon him of proving facts to show 
that the possession was lawful. If he has no better de- 
fense than one based on falseliood, it will be entirely safe 
to trust to the power of cross-examination and the in- 
telligence of the court and jury to detect and expose it, as 
in offenses of much greater magnitude. The contention 
of the People in this case is virtually to the effect that 
possession in all cases instead of being prima facie proof, 
is conclusive, and no facts can be shown to explain or to 
take the case out of the statute. The accused would not 
even be permitted to show that he acquired the possession 
within the State at a time when it was perfectly lawful 
to do so. 
But if this is what the statute means and it is to be held 
that the conceded facts of this case are within its penal 
provisions, then I think it is clearly invalid as in con- 
flict with the commerce clause of the Federal Constitu- 
tion. In this view of the case, the question and the only 
question is whether a State statute can be lawfully enacted 
to prohibit a citizen of this State from buying fish in 
Canada, importing it into this State under the revenue 
regulations of the United States, and exposing it for sale 
here. There is no question at all about the competency of 
the States, in the exercise of the pohce power, to enact 
game laws. The "question is whether such laws can be 
so framed as to prohibit or restrict by penal provisions 
the importation of an article of food in universal use. 
That fish is such an article of food and the subject of 
foreign and interstate commerce. I asstune no one will 
deny. That the purchase of fish for food in a foreign 
country and its importation here for sale, as such, is a 
branch of foreign commerce, is too clear for discussion. 
That the statute in question forbids the possession, and 
consequently the sale here, of an important article of 
food, is equally clear. Upon the construction contended 
for. the fienal provisions of the statute absolutely inhibit 
the possession of the property at a season of the year 
when it is most in demand as an article of fond. That 
the statute operates as a restriction upon the defendant's 
bu-^iness as an importer and dealer in fish, no one can 
doubt. That a statute so operating is in conflict with the 
exclusive power of Congress to regulate fore-'gn com- 
merce is not questioned, and vet the contention is made 
with great earnestness that this statute is perfectly va'id. 
The rea'^oning upon which this conclu=ion is based if I 
understand it, is that the State has power to nass game 
laws which no one denies; that the obiect of thi"^ statute 
was to protect game m this State and not tn interfere 
in anv way with foreign commerce, and, since the mi'-pnee 
that the Legislature h?)d in view wa<! lawful and laudnble. 
the =tafn«e is good, a1lhoii<rh. in fact, it doe« nroh'bit or 
restrict the importation of fresh fi«h as an arncle of food^ 
li the legislature ditt not inten4 to restrict foreign com- 
mence, as is asserted, th|;n it is obvious that the statue 
should be read and interpreted according to that intention, 
in which event it would have no application to the facts of 
this case; but, strangely enough, it is g.ven a meaning 
which imputes to tlie lawmakers just the contrary, smce 
it is said that the possession of imported fish is in terms 
inhibited. The good intentions of the Legislature will 
not save a State statute from condemnat.on when it in 
fact conflicts with the supreme law of the land. If it 
restricts the freedom of commerce, as this certainly does, 
then it is void, no matter what name may have been 
given to it, or what good purpose it was intended to pro- 
mote. An act to protect game or to promote health may 
be so framed and applied as to restrict or regulate tratfic 
in some article of commerce, and when it does it is just 
as obno-xious as if passed for that purpose under a title 
expressing that very intent. It will njt do to hold that 
the Constitution can never be violated except when the 
Legislature intends to. It is frequently violated with 
the verv best intentions. (People v. Haivkins, 157 N. 
Y. I.) ' 
I pass over the suggestion that the statute may be 
considered as a health law and applied as such, since the 
sport of fishing and hunting promotes health. The num- 
ber of people who can indulge in the sport are so few 
comparatively, .and the number who are obliged to buy 
. fish in the market for food so large, relatively, that a 
defense of the law as an agent or handmaid of the public 
health cannot be taken quite seriously. Reasoning of that 
Idnd enables us to deceive ourselves with names and 
words, but fails to prove that a law wh'ch prohibits the 
sale of a healthy article of food, imported from a foreign 
country, is a valid exercise of power. It m ght as well 
be argued that a statute prohibiting the sale or pos'-'ession 
of intoxicating liquors imported from abroad or from 
another State is not what it professes to be, but a health 
law in d'sguise, since it operates to restrain a few people 
from ruining their health by excessive drinking. The 
question in this case is n,ot solved or advanced one step by 
arg'uments to show thai; the statute is a healthful exer- 
cise by the State of the police power with respect to 
internal objects. We must always come back to the in- 
quiry as to its effect upon trade in an art'cle of food, when 
applied to the conceded facts of this case. 
The law on the question has so often been stated by 
the highest court of the land, in accordance with the 
rules already stated, that much further discussion would 
be out of place. I will recall only a few of the more 
recent cases. In Bowman v. Chicago, etc., Ra'hvay Co. 
(125 U. S. 465) it was held that a State has no power 
to enact laws for the purpose of protecting its people 
against the evils of intemperance whxh, in fact, operate 
to regulate commerce and forbid the importation into 
the State of intoxicating liquors without a certificate 
first obtained from the State authorities that the person to 
whom the goods are cons^gned is authorized to sell liquor 
under the State law, although the act was passed with- 
out any purpose of aft'ecting interstate commerce, but a^ a 
police regulation to protect the health and morals of the 
people. The same doctrine was repeated in a more recent 
case. (Scott v. McDonald, 165 U. S. 58.) It was again 
held in Leisy v. Hardin (135 U. S. too) that liquors are 
lawful subjects of commerce and a State is without power 
to restrict or prohibit their impor ation from a s'ster 
State, nor, when imported, prohibit their sale. In Minne- 
sota V, Barber (136 U. S. 313) it was held that a State 
statute conceded to have been passed in good fai h for the 
protection of the public health, which forbids the sale 
within the State of certa'n meat products, unless the ani- 
mals were first inspected therein before thej' were killed, 
is unconstitutional and void. The same doctrine was 
subsequently reaffirmed. (Brimmer v. Rebman, 138 U. 
s. 73.) 
In Schollenberger v. Pennsylvania (171 U. S. i) it was 
held that a statute of the State which forbido any person 
from selling, exposing for sale or having m possession 
oleomargarine was invalid, in so far as it operated to 
prohibic the introduction of the article into the State 
from another State. It was admitted that all these statutes 
were based upon the undoubted police power of the State 
to protect health and morals, but the good intentions with 
which they were enacted did not save them from con- 
demnation, since thej' operated as a regulation of or 
restriction upon, interstate commerce, and so far as they 
had that operation ihey \Vere void. 
If there is any difference in principle, or any sound or 
reasonable distinction pertinent to the qvtestion now be- 
fore us, between a statute intended to protect fish, and 
to foster and promote sport, or the pastime of hunting and 
fishing, and those to protect health by providing for an 
inspection of animals to be used as meat, to promote 
temperance and moral'ty by forbidding the sale of 1 quors, 
or to suppress fraud by restricting the sale of imitation 
butter as food, I have not been able to perceive it, and 
I may add that no one has yet attempted to state it. If 
there is any distinction at all it would be against and not 
in support of a statute intended only to promote sport 
and pleasure. That is all laudable enough, but not so 
important to the body politic as laws to protect health, or 
suppress crime and promote morality; all of which have 
been held to be void when so framed as to regulate or 
restrict interstate or foreign commerce. If the statute 
in question has the meaning and eft'ect claimed for it,- then 
its operation cannot be better illustrated than by the ad- 
mitted facts of this case. 
It seems that had the defendant at the time it imported 
fish also imported meat, liquors or oleomargarine, all the 
latter art-cles would be protected from State laws re- 
stricting their sale or possession by the commerce clause 
of the Constitution, while the fish would be subiect to 
the penal restrictions of the game laws. I cannot be- 
lieve that this is a reasonable or tenable view of the law 
applicable to this ca^e. 
It will not be profitable to review or di scus"? the game 
laws of other States or countries, or the dec'^'on- nf 
local courts interpreting the same. It may be admitted 
that these Sta*-es have game laws as dra<:tic as our own. 
but that has no bearing on the qtie=tinn now before us. 
The learned counsel for the plaintiff Vias not fo"nd anv 
anthnr'tv in anv State murt to sustqin {Vie "f^nocj- Jnn t'lat 
game 1aw.s. however framed, can be so applied as to pro:- 
hibit the imnortation of an art'c'e of food in g^Pfra' use 
from a ftxrei^ country or another State into this Stat^ 
and exposing it for sale here. It must always be borne 
in mind that this is the only question that we are n.jw 
concerned with. The statutes and decisions in ojief 
States furnish no light on th^s question. Indeed tne 
strongest case that the learned counsel for the People has 
been able to find in favor of his contention is one decided- 
by this court. (P Helps v. Racey, 60 N. Y, 10.) But it is 
admitted that the principle upon which that case was 
decided was subsequently overruled by the Supreme Court 
of the United States, and that upon the question now 
under consideration it is no longer law. (Pierce V. Me'W. 
Hampshire, 5 How. [U. S.] 504; Lcisy v. Hardin, 13S 
U. S. leOi 118; BoitHnan v., Cnicago, etc., Raihvay Co., 
125 U. S. 507.) That case rests entirely upon the proposi- 
tion that a State law regulating foreign or interstate com- 
merce is valid unless Congress has made some regulation 
on the subject, a principle wh.ch has been compiecely 
overthrown by Jie court of last resort, as w-U be seen 
from an exam nation of the cases cited. 
Passing from the collection of State statutes for the pro- 
tection of fish and game and the decisions of State courts 
as to iheir scope and effect, which occupy such a promi- 
nent place in the brief of the learned counsel for the 
People, it would perhaps be unjust to his argument to 
ignore two cases in the Federal Court which h? c aims 
support h's contention in some way. If they do, they are 
entitled to great weight and con--ideration, since the de- 
cisions of that court upon this question are the supreme 
law of the land. If they do not it may be ^afely a serted 
that the learned counsel has found no controlling au.hor- 
ity to support the proposition that a State may enact a 
sta yte which makes it a penal offense for the defendant 
to buy fish in the markets of Manitoba or Ontario, in 
Canada, -mport it into this State and have it in h'.s pos- 
session at Buffalo. If the court of la:t resort ha ever 
said anything .ending to support this pr'pi^ition. even 
by construction or fair implication it is doubtless a "tlnr- 
ity binding upon this court. But it is very clear, I th nk, 
that it has not. 
Lawton v. Steele (152 U. S. 133). Tha'- ca--e decided 
three propositions, none of which have any re'ation to 
this case, (i) That the State had the power to regulate 
the manner of taking fish from waters within its juri-d'c- 
tion. (2) Tha: it had power to forbid fi hing in surh 
waters with nets. (3) That the nets destroyed in that 
case, being of comparatively small value, the S*ate had 
power to declare them a nuisance and summarily abate 
them. 
Geer v. Connecticut (161 U. S. 519). That case decides 
the following points: (i) That a State statute wh.ch for- 
bids the kill ng of game for the purpose of convey ng the 
same beyond the limits of the State, or having i in pos- 
session with that intent, is valid. (2) That wi d game 
within the State belongs to the whole people in com- 
mon and that legislation to prevent its extinct on by con- 
veying it out of the State wa- not in conti.ct with the 
Constitution. (3) That the individual who caught or 
killed it within the State acquired not an ab-olute but a 
qualified property in it, since the use or enjoyment was 
limited to the boundaries of the State. ' (4) That since 
the use or enjoyment was limited to the people of the 
Sta e it was not the subject of foreign or interstate com- 
merce, though it was the subi3ct of internal commerce. 
(5) Not being the subject of foreign or interstate com- 
merce, but merely of internal commerce, the statute was 
not in conflict wi.h the commerce clause of the Federal 
Constitut'on. 
Every proposition embraced in these two cases mav be 
and is freely admitted, but not one of them has any bear- 
ing on this ca.=e. In the first case it was held that the 
S.ate had power to forbid fishing with nets and in order 
to make the prohibition effectual, to declare th - nets a 
nuisance and de=troy them summarily without liab 1 ty for 
compensation. In the second case it was held th- 1. inas- 
much as the State owned all the game w'thin its limits, it 
might legislate to keep it there and cou d forbid any one 
from convejdng it out of the State and enforce such nro- 
hib'tion. But I am unable to see how all this or anything 
in those cases helps the plain iff's position in this ca-^e^ 
Here the defendant bought fish in Canada as a comm-rc'al 
article, where it was lawfully exposed for sale impor ed 
it into this State under revenue laws, and had what was - 
clearly his own property in his possession, and bxause 
he is possessed of his own property so acquired the 
statute in ques.ion subjects him to indictment and civil 
penalties. It would be difficult in this view to imagine a 
plainer or more direct interference with foreign com- 
merce than this case presents. 
The ma'n proposition, after all, in support of the 
plaintiff's conten ion is based more upon policy and ex- 
pediency than upon law. When fairly stated 't is this: 
A statute to protect fiph and game within the State d es 
not protect unless i. inhibits the importation cf fi h and 
game from a foreign country or another State. When this 
propos'tion is carefully examined it will be fnund to be 
not only without any foundation in fact or in experience, 
but when ap^lied to cases like the one in hand the mani- 
fest tendency is to defeat the very object of tl^e law, wh'ch, 
of course, must be assumed to be protection. The in- 
dividual who is permitted to hunt and fish in Canada or 
in another State, and bring w'th him here the fruits of h's 
labor, will do very m.uch less of hunting and fishme at 
home. If his warfare upon game or fiii is carried rn in a 
foreign country, or in another State i would seem *^o 
be unwise to nrevent ^im for the oumose -"f pr'-i*-pct"ncr fi h 
and game at home. The game law t'^at cuts off t^-e snn-^ly 
from abroad diminishes rather than increa'-p- and ^r-t^rt? 
the supply at home. Legisla^'on that won'd or^hibi*^ the 
defendant frorh draw'.ng a sunnlv of hp<^h fish from 
Canada during the clo'-e season 'imnV f^rnishe'' a «*''-~ng 
temutation to procure it from t^-"^ waf^rq of t^j- S*^ate, 
even in violation of law. It i<: said tt.pt t^pre is a "a-s-on 
in^erpp" in "-.pn to kiM or cap''ure gam° in snite nf nemi 
laws forb'dding it. If that be so it wmM c^em t-^ be 
wlsd'^m to allow the uassion to ex^pTrl itself hv r>erm't- 
tinsT tViose AA'ho eniov it ti ca'^'^'^r" an^' i-,«/-'irn° •-,o5;"<»t-c'^4 
of fis'h nr cmme C^^irlp nr r-thor '^^■^'^r.r ,„i->^^o itnp 
law nermit.= t*-. rather than furnish a temptation to vio'ate 
th" 'aw at horne d'"-intT the do^p reason. To fo'-h'-' fh^ 
takips" of fish m a fofPiVn contif-ry or qi1'^^-t^f.)- Sf-ite 
where it 's lawful, bv --^iir own pi+i^ens di'vincr {he spi=''-n, 
or the possession within the ^tate of what h so ta''"n, 
tends to exterminate rather than protect f^sh here, Thf 
