Feb. 21, 1903.] 
FOREST AND STREAM. 
149 
§e6. 2§. Gfouse, Close Season.— The close season for grouse shall 
bfe ffofii Dfecertibel- sixteenth to August thirty-first, both inclusive. 
No persofi shall takfe fiioi-e thah si>ity-SiS gfotise in an open sea- 
son. Id. , cz, J 1 
Sec. 28.— Woodcock, Grouse afid QUail; flot to bfe Possgssed;-- 
Woodcock, grouse and quail shall not be sola of jjossfe^sfed dufirig^ 
the close season, except in the month of December, and possession 
or sale thereof during the last fifteen days of December shall be 
presumptive evidence that they were unlawfully taken by the 
possessor. Id. 
Sec. 39. Penalties.— A person who violates any provision of this 
article is guilty of a misdemeanor, and is liable to a penalty of 
slklf- dollars and to an additional penalty of twenty-five dollars 
fof feach tjifd taken of possessed ill violation thereof. Id. Sec. 39. 
Sec. iS5. Actiofis fof Peilalties by the People.— Actions for 
penalties under this act shall bfe ifi thfe nalidfe of "the People of 
the State of New York"; and must be bfotigBt oti the ofdef of the 
chief game protector or of a commissioner. Special cottHsSl tiiif 
be employed and their compensation fixed by the commissiofi. 
* * * Id. 
The first thirteen counts of the amended complaint 
ehafged as many violations of the same provisions of the 
stktut6j. Set:, hy the pd§9e§§ion of grouse and quail. 
Tlife iv. Qouiii, ]ioW^vif; ellSfgeS a f ioktlon of Section 20 
by the possession of du6k§. They df g t.hg saril6 lil f Ofitl, 
diflfering only as to the number arid kind of mfds. pos- 
sessed, and as to the time they were possessed. If any 
one of these counts be sufficient, therefore, the other 
twelve are sufficient also, and this discussion may be con- 
fined to the first count. 
It is therein alleged, omitting the formal parts, "That 
he.fetofofe, to wit, on the 23d day of May, 1901, at the 
said City and County ef New York, the defendants, part- 
ner§ as afofegaldi uiliaWfullyj Willfuily and knowingly 
possessed four huiidfed aiid hiri6ty-sk (456) gfciuse and 
two hundred and thirty-six (236) (jUail _ dilHrig the dosfe 
season for said grouse and quail respectively, contrary to 
the form of the statute in such case made and provided. 
That by reason of the premises, the defendants then and 
there became liable to a penalty of Sixty dollars ($60), 
and to an additional penalty of Twenty-five dollars ($25) 
for each bird, grouse and quail, so possessed, to wit, the 
sum of eighteen thousand three hundred dollars ($18,300) , 
and amounting in all to the sum of eighteen thousand 
three hundred and sixty dollars ($185360). That there- 
after, to witi 6ti the 6th day of July,, tmt, at the. State 
aforesaid, the chief gattie tifotegtof of the State of New 
York, duly ordered that this aetioli be bfbUght, arid the 
same was and is brought on said order by the undefsigrted 
attorneys and counsellors at law, then- duly retained and 
employed therefor." 
It is thus seen that the cause of action is stated in the 
language of the statute. This is all that is necessary. 
Cole vs. Jessup, 10 N. Y., 104. 
It is believed that the amended complaint and each 
count of it ife entirely suffieient .in this respect. There has 
not hitherto been any eoriteritibri to the contrary; The 
claim being, as to the first thirteen counts, that a criminal 
liability only is incurred by a violation of the provisions 
ot article II.; that a civil action will not lie. This con- 
tention arises out of the defendants' construction of Sec- 
tion 39, the last section of that article, already quoted 
above, and repeated here as follows : 
A persofi who violates ^nf iSfoVlsiofl oi this aftidle is guilty of a 
misdemeanor, and is liable to a penalty of sixty dollafs Sfld to art 
additional penalty of twenty-five dollars for each bird of p'aft of 
bird taken or possessed in violation thereof. 
From this it is claimed that the penalties prescribed 
by this section are intended as punishment for the mis- 
demeanor, and not to be recovered in a civil action. The 
language of this section doea not .suggest that construc- 
tion, but the contrary. The iritentiori of the Legislature 
is, of course, controlling. 
"The intention, however, is to be sought for in the 
language used.'* 
: Hudson Iron Co. Alger, 54 N. Y., 175. ' 
The question arises, therefore, whether the Legislature 
inifehded, when it used the language "is guilty of a mis- 
dcmenaor, and is liable to a penalty." to impose both a 
criminal and civil liability, or the former only, for a viola- 
tion of this law. 
We take it that it was intended to make the offender 
liable to both forms of action, because : 
1. This is the elear^ literal import and m.eaning of the 
lahfeuage tlsed.^ The words, ''a person who violates atiy 
provision of this article is guilty of a misdemeanor/' pre- 
scribes iti the shortest possible form and in the most ex^ 
plicit mannet-j that a specified aetj the yiolation of any pfc 
vision of this article, shall constitute a crime, a misde- 
tneanor. And Section 192 of the same act prescribes that 
"A per,son convicted of a misdemeanor under this 
act shall, except as otherwise provided, be punished by a 
fine of not less than ten dollars or more than the amount 
cf penalty recoverable jri a civil action for the of?ence 
Committed; or by imprisonment," etc. The criminal lia- 
bility and the punishment are thus completely prescribed. 
But the Legislature did not stop here. To the words "is 
guilty of a misdemeanor" are added the other words "and 
IS liable to a penalty of sixty dollars and to an additional 
penalty of twenty-five dollars for each bird taken or pos- 
sessed in violation thereof." And whereby another, addi- 
tional and civil liability is as clearly imposed as is the 
criminal. Or, as was stated by Mr. Justice O'Gorman, in 
passing upon this question at Special Term (fol. 73), 
"The expression and is liable to a penalty, etc., in Section 
30 of the act, clearly means that, in- addition to the crim- 
inal liability, the offender subjects himself to a civil action 
for the recovery of the penalty prescribed." 
2. The language used in this section is rarely, if ever, 
used in prescribing the punishment for a misdemeanor or 
for any crime. Not a single statute is found in which the 
pecuniary punishment imposed for the commission of a 
crime is termed "a penalty," the word "fine" being in- 
variably used, so far as we have been able to discover. 
While, on the other hand, the word "penalty" has been 
used with equal uniformity in statutes to denote the 
pecuniary liability recoverable in a civil action for their 
yiolation. • - 
And the Legislature that passed the act in question here 
^'as acquainted with this use of these words in imposing 
a. criminal, as well as a civil liability, and employed them 
hi the same way as every Legislature before it had done. 
For instance, it is provided by Section 16 of Article I., 
for the protection of deer, etc., that a person who violates 
ibat article is guilty of a misdemeanor, and in addition 
ihereto is liable to a penalty. . . . 
It cannot be said that the word "Une" has been so uni- 
|QrBily yse<i fp denote tifje piinjsbmeat in a crimiqa} action.. 
and "Penalty" the forfeiture recoverable in a civil action 
by mere chance or accident. Nor that the itivariable use 
of these words in that connection has no significance. The 
use of either of them plainly signifies, points out and de- 
termines the character of the action, whether civil of 
crimirialj in the absence, at least, of an expressed intention 
lo the Contrary. And such intention is not indicated here. 
It is therefore plainly apparent from the foregoing, only 
a comparatively few instances which might be cited, that 
the language "is liable to a penalty^' u-Sed in Section 39 
in question is not the language of a Criminal statute. "Is 
guilty" and "slmll be punished" or "is punishable by a 
nne" etc., being the language employed in such statutes. 
• t t 
It. is, therefore, plain that the Legislature, when it pre- 
scribed by Section 39 in question, that a person who vio- 
lates any provision of this article "is guilty of a misde- 
meanor, and is liable ia a penalty" intended that the 
offender should be punished as for a misdemeanor, and 
liable to a civil action also for the penalties therein pre- 
scribed. 
The use of different language in other Sections of 
thfe Statute, constitutes the chief ground relied upon by 
the dgnluf fattts to^ §how that a right of civil action is not 
conferred by Sectiott 39' 
Sec. 16, Art. I., fof the protection of deer, etc., provides 
that a person who violates the provisions of that article 
"is guilty of a misdemeanor, and in addition thereto is 
liable as follows:" (specifjnng the penalties). , . . 
The use of the words in addition thereto in the forego- 
ing sections, and their omission from section 39 have 
given rise to the contention involved here. 
. While the words "in addition thereto" are used in Sec- 
tions 16) 6g and 99, supra, the other form "is guilty of a 
inisdemearior, and is liable to a penalty" is employed in 
Sections 39, 119 and I39 of this same act. 
But this proves nothing. It indicates nothing. 
It merely shows that there are twO ways at least of 
expressing the same thing or idea, The words "is guilty 
of a misdemeanor, and is liable to a penalty" express an 
intent as clearly to subject the offender to both forms of 
action as do the words "is guilty of a misdemeanor and 
in addition theirto is liable as follows," etc. . , . 
Point n. 
It is not necessdr^f id allege in the complaint in an ac- 
tion under this statute that th^ birds were taken or killed 
ivithin the boundaries of the State. 
Further objection was taken to the amended complaint 
at Special Term on the ground that it does not appear that 
the birds mentioned therein were taken or killed within 
this State. The very recent decision of the Court of Ap- 
peals in the ease of The People vs. Buffalo Fish Co., 164 
N. Y., 93; brought under this same act, is conclusive upon 
this point, if indeed there was any ground for such a 
contention before that decision. O'Brien, J,, rendering the 
opinion of the Court, said at page 99: 
"T4ie possession 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 posses- 
sion is lawfid." 
There is no ground whatever for the contention upon 
demurrer that the plaintiffs should allege that the birds 
were taken or killed within the State. It cannot be 
claimed that the statute contains any proviso or exception 
to that effect. The simple statement of the fact that the 
defendants possessed the birds at a time when the statute 
prescribes that they shall not be possessed constitutes a 
violation of Article II. and a cause of action under sec- 
tions 20 and 28 of that article. . , , 
PoiGt in. 
Thig act is a general lain, constituting Chapter 31 of the 
General Laws of this Slate, and it need not therefore be 
pleaded in the manner prescribed by Section 530 of the 
Code of Civil Procedure. 
It was claimed also that the amended complaint is de- 
fective for failure to make specific reference to the statute. 
But this is not a local statute and no reference need be 
made to it in such case. . . . 
Point IV. 
Counts XlV. to XIX., both inclusive, respectfully state 
facts suMcicnt to constitute a cause of action. And the 
Court erred in sustaining the demurrer thereto. 
These counts are based on Section 33 of the act in ques- 
tion, and which reads as follows : 
Certain Wild Birds Protected. — Wild birds other than the Eng- 
lish sparrow, crow^ hawk, crane^ raven, crow-blackbird, common 
blackbird, kingfisher, and birds for which there is no open season, 
shall not be taken or possessed at any time, dead or alive, except 
under the authority of a certificate issued under this act. No 
part of the plumage, skin or body of any bird protected by this 
section shall be sold or had in possession for sale. 
These counts are the same in form, differing only as to 
the kind and number of birds possessed, and as to the 
time when they were possessed. Reference is, therefore, 
made lo the fifteenth count as an example of all. And 
wherein it is alleged, omitting the formal parts, that the 
defendants on the 25th day of May, 1901, at the City and 
County of New York, "unlawfully, wilfully and Icnowing- 
ly possessed certain wild birds other than the English 
sparrow, crow, hawk, crane, raven, crow-blackbird, com- 
mon blackbird, kingfisher, and birds for which there is 
no open season, to wit, 876 English snipe, 602 plover, 
1,416 snow bunting and 96 snipe, contrary to the form of 
the statute in such case made and provided and without 
and not under the authority of any certificate issued 
under this act. . . . That by reason of the premises, the 
defendants then and there became liable to a penalty of 
$60 and to an additional penalty of $25 for each bird so 
possessed, to wit, the sum of $74,750, and amounting in all 
to the sum of $74,810. . . ." 
No objection was taken to the amended complaint on 
this ground, or for its omission in any respect to follow 
the language of the statute. The ground urged against 
the sufficiency of these counts, and the one adopted by the 
Court at Special Term, and affirmed by the Appellate 
Division, is an alleged conflict between this section 33, 
quoted above, ^nd section 30 of the same ^ct wliich re^ds 
follow* ^ 
Plover and Other Birds, Close Season.— The close season for 
Wilson (called English) snipe, yellow legs, plover, rail, mud-hen, 
gallinule, surf-birds, curlew, water-chicken, jack-snipe, bay-snipe or 
shore birds, shall be from May first to August thirty-first, both 
inclusive. (As amended by Ch. 91, of the Laws of 1901.) 
From this it is claimed that plover and snipe, two of 
the species of birds mentioned in each of the last six 
counts of the amended complaint, have an open season. 
Or rather, that they have a close season, from May first 
to August thirty-first, and from which it is implied that 
they have an open season the remainder of the year. 
This section, as seen, does not in terms provide that these 
birds shall not b« 1»ken or possessed. 
While Section 33 prescribes that "\Vild birds other than 
the English sparrow * * * and birds for which there 
i.^ no open season, shall not be taken or possessed at any 
time, * * *." 
And it is, therefore, claimed that possession of plover 
and snipe having an open season, does not give rise to 
any cause of action under Section 33, which prohibits the 
possession of "birds for which there is no open season 
* * *_» But tiiis construction of the statute is too 
narrow. 
I. The possession of two classes of birds is expressly 
prohibited by Sec. 33, to wit, (a) ivild birds; and (b) 
birds for which there is no open season. It may be con- 
ceded, for the purpose of this argument, that plover and 
snipe, having an open season, are not protected by the 
clause prohibiting the possession of birds for which there 
is no open season. But it is prescribed that "wild birds" 
(other than certain birds excepted in Sec. 33) shall not be 
possessed. . . 
The only questions, therefore, are whether (i) plover 
and snipe are wild birds; and (2) other than those ex- 
cepted by Sec. 33. And these questions are answered by 
a mere reference to the amended complaint. Both facts ' 
are distinctly alleged in each of these counts and admitted 
by the demurrer, to wit, that they are wild birds, and 
"other than English sparrow, etc." those excepted by Sec. 
33. And the demurrer should be overruled as to this 
ground. . . . 
Point V. 
It being the paramount intention of the Legislature,^ as 
appears by both Sections 30 and 33, to protect the birds 
mentioned in Section 30, these sections should be recon- 
ciled so as to give effect to that intention. 
It is not deemed necessary, as stated above, to reconcile 
the alleged inconsistency in this statute; and yet this may 
be done within settled rules of law. . . . 
It is perfectly apparent [from authorities cited], and 
many others to the same efTect which might be cited, 
that the alleged inconsistency between these sections can 
be and should be reconciled within settled principles of 
law. Thus, Section 30, which merely provides that "the 
close season," for the birds therein mentioned, "shall 
be from May first to August thirty-first," may be rejected 
altogether. Or the words "and birds for zvhich there is 
no open season" may be stricken from Section 33. In 
either case the defendants would be liable under Section 
39 for the possession of plover and snipe without the 
authority of a certificate, as "tmld birds" other than those 
excepted by Section 33. . . . 
Point VI. 
Moreover the Court erred in sustaining the demurrer to 
counts XV. to XIX., both inclusive, of the amended com- 
plaint, independent of what may be said of the alleged 
confiict in the Statute as to plover and snipe. 
Each of these counts, except the XIV., charge that the 
defendants possessed other wild birds, not mentioned in 
Section 30, arid other than those excepted from Section 
33. That is to say. it is alleged in the XIV. count that 
they possessed 1,416 snow buntings on the 25th day of 
May, 1901; in the XVI. count, 288 reed birds, and 1,152 
snow buntings on the 28th day of May; in the XVlI. 
count, 3,168 sand pipers on the 30th day of May; in the 
XVIII. count, 720 reed birds, 5,760 snow buntings and 
1,439 sand pipers on the 31st day of May ; and in the XIX. 
count that they possessed 3,000 sand pipers on the ist day 
cf June, all in that year. 
There is no tenable ground upon which to claim Any 
conflict between these sections as to birds mentioned in 
each of these five counts. They are neither mentioned in 
Section 30 nor specified by name in any other section of 
the act. They are, therefore, merely w'ild birds, other than 
the English sparrow, crow, hawk, etc., according to the 
allegations of the amended complaint, and which shall not 
be taken or possessed at any time, except under the 
authority of a certificate, as prescribed by Section 33. 
And it is alleged that the defendants possessed them 
without such authority. And these counts are therefore 
plainly sufficient without reference to the question as to 
plover and snipe. 
It may be said, however, without reason, that a bird, 
in order to be protected by this section, must be both a 
wild bird and a bird for wliich there is no open season. 
And that since there is no other expressed provision of 
the statute that tvild birds shall have no open season, 
snow bunting, reed birds and sand piper are not within 
both conditions of the statute. But the statute will not 
bear any such construction. . . . 
It is therefore respectfully submitted : 
(1) That a civil action lies to recover the penalties 
specified in Section 39 for a violation of any provision of 
Article II., Chapter 20, of the Laws of 1900 as amended 
for the possession by the defendants of grouse and quail 
and ducks as alleged in the first XIII. counts of the 
amended complaint. 
(2) That plover and snipe (two of the kinds of birds 
mentioned in each of the other six counts) are wild birds 
within the letter, meaning and protection of Section 33, 
and that their possession by the defendants as alleged in 
the amended complaint was a violation of this article. 
(3) That snow buntings, reed birds and sand pipers are 
ivild birds within this section and that the last five counts 
of the complaint are good as to these birds whether plover 
and snipe are protected or not. 
(4) That the several causes of action being stated in 
the language of the statute are respectively sufficient in 
law. 
(5) That this is a general public statute, and W f^fer' 
epce need be made trt it in a ple^dinc: under it, 
