43g 
^POHEST_ AND ^ STREAM. 
this section to take or kill game and fish is limited to food 
purposes 
and no person shall take, kill or have 
ni possession in any one season more than one elk, and 
one deer, and one antelope; or instead of one deer and 
one antelope, he may have either two deer or two 
antelope." 
Sub. Div. 8, Sec. 7, Div. B, page 193. "No game or 
fish shall be held in possession by any person for more 
than five days after the close of the season for killing 
the same, except as in thi^ act otherwise provided." 
Sec. 1 1, Div. D, page 207. "When any person lawfully 
in possession of game or fish shall desire to transport the 
same within this State, the transportation of which is 
not herein otherwise provided for, or out of this State, 
the Commissioner may, upon being satisfied that the pos- 
session and transportation is not in violation of the spirit 
of this act, grant a permit therefor and thereafter during 
the period of ten days after its date, such transportation 
shall be lawful between the points therein named. Such 
permit shall be substantially in the following form : 
"Form II. 
"State of Colorado. 
"Department of Game and Fish. 
"Transportation Permit. 
"No Denver, ., 189 
"This certifies that Mr is entitled 
to transport frorg, , Colorado, to 
, the following game and fish, 
to wit This authorizes pos- 
session and transportation between the points named 
herein only, but not sale or storage. Void after ten days 
from date. 
"Commissioner." 
Sec. 13, Div. D, page 209. "Game or fish may be trans- 
ported out of this State only when accompanied by a 
permit from the Commissioner authorizing the same, as 
provided in Section 11 of this division." 
Sec. II, Div. A, page 187. "The Commissioner and 
every warden throughout the State, and every sheriff and 
constable in his respective county, is authorized and re- 
quired to enforce this act and seize any game or fish taken 
or held in violation of this act." 
Sec. 9, Div. D, page 206. "All game and fish seized 
under this act shall, without unnecessary delay, be sold 
by the officer seizing the same, or by the Commissioner, 
except when a sale is impracticable or is likely to incur 
expenses exceeding the proceeds, in which case the same 
shall be donated to any needy person not concerned in the 
unlawful killing or possession thereof. Possession by 
virtue of such sale or donation shall not be unlawful. 
The proceeds thereof, after deducting the costs of seizure 
and sale, shall, if made by the Commissioner or any war- 
den, be paid into the State Treasury, but if made by a 
sheriff or constable, shall be paid, one-half to the Com- 
missioner and one-half into the treasury of the county 
where the seizure was made." 
Sec. 10, Div. D, page 207. "In case of such seizure and 
disposition the officer making the same shall sign and give 
to each purchaser or donee an invoice stating the time 
and place of disposition, the kind, quantity and weight, 
as near as may be, of the game or fish disposed of, and the 
name of the purchaser or donee. Such_ invoice shall 
authorize possession, transportation within this State, 
storage and sale for thirty days after date, and shall be 
subst*itially in the following form: 
"Form 10. 
"State of Colorado. 
"Department of Game and Fish. 
"Officer's Invoice. 
" tRo 
"Disposed of by me this day to. , the 
following game and fish, to wit: Kind..... 
number ; weight ., the same having 
been seized and disposed of by me under the provisions of 
the game law. This authorizes possession, storage, trans- 
portation within this State, and sale. Void after thirty 
days from date. 
"(Title of Officer.)" 
Sec. 16, page 209. "Any person having the lawful pos- 
session of game or fisfli killed v/ithin this State, may, upon 
proof of such fact, Ifave issued to him by the Commis- 
sioner, a storage peitoit which shall authorize storage, 
possession and use of the same not longer than ninety 
days next ensuing the open season therefor. Such permit 
shall be substantially in the following form: 
"Form 12. 
"State of Colorado. 
"Department of Game an4 Fish. 
"Storage Permit. : 
"No Denver,-. ....189 
"Mr , residing at. .............. ., 
being in the lawful possession of killed 
within this State, is entitled to have the same kept in 
storage until .next. This authorizes storage, 
possession and personal use until the date last mentioned 
above, but not transportation or sale. 
"Commissioner." 
It appears by the admissions of the answer and the 
evidence, that the first seizure of the hides made by de- 
fendant as deputy sheriff, was December 10, 1900; the 
second seizure, and the one complained of in the com- 
plaint, was made by defendant as deputy game warden 
January 28, 1901. 
The case was tried by a jury, resulting in a verdict and 
judgment against defendant for $350, from which this 
appeal. 
In their final analysis, the errors relied upon for a re- 
versal of the j udgment rendered by the court below, 
present but one question, viz.. Was the plaintiff the owner 
and entitled to possession of the 300 deer hides sued for? 
This is the first case under the game and fish laws of 
this' State which has found its way into an Appellate 
Court, probably due to the fact that most cases of this 
character are of a criminal nature, and, owing to peculiar 
local conditions, convictions have been almost, if not 
quite, impossible, thus leaving the State without remedy 
to enforce these most salutary laws. 
In view of the foregoing statement, and the importance 
of the subject, the presentation of some of the general 
principles upon which such laws are based may not be 
Considered _ untimely. 
The leading case on this subject is Geer vs. Connecticut, 
161, U. S. 519, in which Mr. Justice White delivered the 
opinion of the court. Geer was convicted under a statute 
of Connecticut which made it unlawful to have in posses- 
sion certain game birds with the intention of transport- 
ing them beyond the limits of the State. The main 
question presented was whether the statute applied to 
birds which had been killed in the open season. The case 
found its way to the United States Supreme Court, upon 
the point that it was in violation of the interstate com- 
merce clause of the Federal Constitution. Mr. Justice 
White, in the course of his opinion, reviews the origin, 
growth and development of game laws. He says, inter 
alia: 
"From the earliest tradition, the right to reduce ani- 
mals fer(^ natures to possession has been subject to the 
control of the law-giving power." 
He then traces the growth and development of such 
laws from the earliest times down to the common law 
of England, and says: 
"The common jaw of England also based property in 
game upon the principle of common ownership, and there- 
fore treated it as subject to governmental authority. 
"Blackstone, while pointing out the distinction between 
things private and those which are common, rests the 
right of an individual to reduce a part of this common 
property to possession, and thus acquire a qualified owner- 
ship in it, on no other or different principle from that 
upon which the civilians based such right. 2 Bi, Comm. 
I, 12. * * * 
"The practice of the Government of England from the 
earliest time to the present has put into execution the 
authority to control and regulate the taking ef game; 
Undoubtedly this attribute of government to control the 
taking of animals fer(e natures, which was thus recognized 
and enforced by the common law of England, was vested 
in the colonial governments, where not denied by their 
charters, or in conflict with grants of the royal preroga-. 
tive. It is also certain that the power which the colonies 
thus possessed passed to the States with the separation 
from the mother country, and remains in them at the 
present day, in so far as its exercise may be not incom-: 
patible with, or restrained by, the rights conveyed to the 
Federal Government by the Constitution. Kent, in his 
'Commentaries,' states the ownership of. animals fens 
Tiaturce to be only that of a qualified property (2 Kent 
Comm., 347.) In most of the States, laws have been 
passed for the protection and preservation of game. We. 
have been referred to no case where the power to so' 
legislate has been questioned, although the books contain; 
cases involving controversies as to the meaning of some 
of the statutes. [Citing a large number of authorities.] 
"While the fundamental principles upon -which the com- 
mon property in game rest have undergone no change, 
the development of free institutions has led to the recog- 
nition of the facts that the power or control lodged in the 
State, resulting from this common ownership, is to be 
exercised, like all other powers of government, 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 dis- 
tinguished from the public good. * =h * 
"The foregoing analysis of the principles upon which 
alone rests the right of an individual to acquire a qualified 
ownership in game, and the power of the State, deduced 
therefrom, to control such ownership for the common 
benefit, clearly demonstrates the validity of the statute 
of the State of Connecticut here in controversy." 
The constitutional question involved in the case was 
then disposed of by declaring that the statute under con- 
sideration did not violate the Federal Constitution. 
Referring to some cases in Kansas and Idaho holding 
otherwise on the question of export. Justice White says : 
"The reasoning which controlled the decision of thesi: 
cases is, we think, inconclusive, from the fact that it did 
not consider the fundamental distinction between the 
qualified ownership in game and the perfect nature of 
ownership in other property, and thus overlooked the 
authority of the State over property in game killed within 
its confines, and the consequent power of the State to 
follow such property into whatever hands it might pass 
with the conditions and restrictions deemed necessary for 
the public interest." . 
Thus, it will be seen, the highest judicial authority in 
the land has laid down the principle that the State, in its 
sovereign capacity, has power to limit and qualify the 
ownership which a person may acquire in game with such 
conditions and restrictions as it may deem necessary for 
the public interest, and that there is a fundamental dis- 
tinction between : the ownership which one may acquire in 
game and the perfect nature of ownership in other 
property. ... 
There is another view of the power of the State to 
enact such legislation as that under consideration, which 
is equally conclusive. The right to preserve game flows 
also from the sndoubted existence -iji the State of a 
police power to that end. 
In State vs. Rodman, 58 Minn., 393, 400, the Supreme 
Court of Minnesota said: 
"The preservation of such animals as are adapted to 
consumption as food, or to any other useful purpose, is 
a matter of public interest; and it is within the police 
power of the State, as the representative of the people 
in their united sovereignty, to make such laws as will best 
preserve such game, and secure its beneficial use in the 
future to the citizens, and to that end it may adopt any 
reasonable regulations, not only as to time and manner 
in which such game may be taken and killed, but also im- 
posing limitations upon the right of property in such 
game after it has been reduced to possession, which limi- 
tations deprive no person of his property, because he who 
takes or kills game had no previous right to property in 
it, and when he acquires such right by reducing it to pos- 
session, he does so subject to such conditions and limita- 
tions as the Legislature has seen fit to impose." 
In Magner vs. People, 97 III, 320, the Supreme Court 
of Illinois said: 
"So far as we are aware, it has never been judicially 
denied that the Government, under its police powers, may 
make regulations for the preservation of . game and fish, 
restricting their taking and molestation to certain seasons 
cf the year, although laws to this effect,' it is believed, 
have been in force in many of the older States since the 
organization of the Federal Government * * * The 
ovviitr.^^hip being in the people of the Stale— the repository 
of the sovereign authority — and no individual having any 
property rights to be affected, it necessarily results that 
the Legislature, as the representative of the people of 
the State, may withhold or grant to individuals the right 
to hunt and kill game, or qualify or restrict, as in the 
opinions of its members will best subserve the pubhc ■ 
welfare." .1 ,;; ...1, . 
. So also Geer vs. Conn., supra. , , , -^„.,- 
In ex parte Maier, 103 Cal., 476, after recognizing '.the,' 
doctrine that it is within the police power of the -State' 
to enact such legislation as may be deemed necessary to ■ 
protect the game, it is said, page 483: 
'The wild game within a State belongs to the people in. 
their collective sovereign capacity; it is not the subject of 
private ownership, except in so far as the people may 
elect to make it so; and they may, if they see fit, abso- 
lutely prohibit the taking of it, or any traffic or commerce 
in it, if deemed necessary for its protection or preserva- 
tion or the public good." 
In State vs. Snowman, 94 Me., 99, iii, the Supreme 
Court says : 
"The fish in the waters of the State and the game in 
its forests belong to the people of the State in their 
sovereign capacity, who, through their ' representatives— 
the Legislature — have sole control thereof, and may permit 
or prohibit their taking." [Citing a number of cases.] 
In Stevens vs. State, 89 Md., 669, 674, it is said; 
"That the total prohibition of having game, from what- 
ever source derived, in possession ' during the closed 
season is a reasonable, if not necessary, means of protect- 
ing the domestic game oi the State making the prohibi- 
tion, has been held in a number of the cases." [Citing 
them.] 
In addition to the power of the State to enact such- 
legislation, based upon its right to its sovereign capacity, 
an.d as an exercise of its police power, the Legislature Of 
this State has vested the ownership of game in the State 
as a proprietor. 
The statutes of Colorado and other States vesting the 
ownership of gam.e in the State as a "proprietor,"" take 
away from the people the right to capture and kill the 
game, unless prohibited, leaving under these statutes no 
right, except as permitted. Otherwise expressed, in the 
absence of statute vesting the ownership in the State, 
the game was Hke the water of the streams, open to the 
first appropriator, except as prohibited by law, while 
under statutes vesting the ownership in the State the 
game is^ like the land and timber of the State, it can be 
aj^propriated to use or held in possession only as per- 
v'.ittcd by law. 
It therefore follows that under the facts of this case 
plaintiffs right to the possession of the deer hides could 
not be established by showing that possession thereof 
was nof prohibited by law, but it was incumbent upon 
him to point out some provisions of law which permitted 
him to have possession, and that a failure upon his part 
to allege and prove facts which would entitle him to pos- 
session under the law would defeat his recovery. 
"Viewed in the light most favorable to the plaintiff, the 
evidence in this case shows that December 10, 1900, 
plaintifT was in the unlawful possession of 300 deer hides, 
which ^ were taken from his possession by an officer 
authorized so to do. On the same date, by some sort of a 
deal with the ofiicer, the merits of which it is unneces- 
sary to discuss, the hides were re-delivered to plaintiff. 
There is no pretense that the re-delivery was made pur- 
suant to the terms of the law, relating to the sale of game 
seized by an_ officer (Sees. 10 and 11,. Div. D, supra), as 
no "officer's invoice" was demanded by plaintiff or issued 
to him. January 28, 1901, plaintiff was again found in 
the unlawful possession of 300 hides, which he claims, 
were the same hides ; whether they were or not is imma- 
terial, and it is also immaterial whether or not the officer 
acted within his authority in redelivering the hides to 
plaintiff December 10, 1900, as even if he did and the 
"officer's invoice" had been issued to plaintiff, by the 
terms thereof it expired thirty days after December 10, 
1900, or January 9, 1901, so that in any event under the 
law his possession January 28 was unlawful, for the,, 
reason that the "officer's invoice" provided for by Sec. lo, \ 
Div. D, above quoted, is. essential to the la.wful possession 
of game or any part thereof, acquired by purchase from L 
the officer, and possession of the game or any part thereof 
became unlawful thirty days after the date of such invoice. . 
The testimony did not establish plaintiff's, ownership 
or right of possession; the motion forj udgment and the - 
request for an instruction to that effect should have been ■ 
granted. - ^ 
Every one is presumed to know the law, and persons, 
who acquire such property take it subject to the proyi- ' 
sions of the law. They can acquire no title or right to 
possession of it, unless the same is permitted by the terms, 
of the law, and such title and right of possession is sub- 
ject to termination under the provisions of the law. 
It is said, there being no statute prohibiting possession 
of hides lawfully taken, because Sees. 5 and 6 of the -Act 
of 1891, which provide for the "tagging" of hides, and the, 
possession and shipment of the same when "tagged," had , 
been repealed by the Act of 1899, therefore the State had ' 
abandoned its right to the hides. 
With this conclusion we do not agree. 
By express statutory enactment the provisions of the 
law with reference to possession, transportation, sale, etc., 
are made to "extend to and include every part of such 
game," Sec. 18, Div. A, supra. 
Appellee has not cited a single authority involving a 
discussion of the principles which control this case. 
A number of authorities, in addition to those above 
quoted might be cited in support of the principles herein 
announced, but we forbear, as this opinion is already too 
extended. 
The explicit language of the Act of 1899, and an exam- . 
ination of the various changes which the laws relating to 
the protection of game and fish have undergone at the 
hands of the Legislature, from the earliest territorial 
days, is convincing of the intention upon the part of the 
Legislature to do just what this act does by its terms, to 
wit, entirely prohibit traffic in the game of this State., or. 
any part thereof, no matter when killed, unless, expressly 
permitted, by law, and it need hardly be su,ggested that 
such a provision, if enforced,- will tend greatly to the at-, 
tainment of the object sought. _ . . . 
The facility and ease with which laws for the protectionj 
