Apeil 1, 1905.] 
FOREST AND STREAM. 
£59 
tection of wild game, hold that such game, when beyond 
tiie reach or control of man, is not the property of the 
State, or of anyone, in a proper sense, and that when 
man, by his labor or skill, brings any such animals under 
his control and subject to his use, he acquires, to that 
extent, his right of property in them ; that, having thus, 
by labor or skill, added to the uses of man an article pro- 
moting his comfort, which without that labor would have 
been lost to him, he has an absolute right to it, and the 
State cannot inierfere with his disposition of it; that such 
game thus reduced to his possession becomes an tide of 
commerce ; and that it does not lie within the province 
game thus reduced to his possession becomes an article of 
food within its borders to its own fortunate inhabitants, 
to the exclusion of others. Two other Justices took no 
part in ihe decision, but the opinion of the court settles 
the law that a State has the power to prohibit the ex- 
portation of game killed within the limits of the State. 
The statute of Connecticut which was under the review 
of the court forbade the transportation of "any such birds 
killed within this State," and the opinion of the Supreme 
Court uses the same words of limitation. The case under 
review related to woodcock and other birds, but there is 
no doubt that fish come within the general classification 
of game. Blackstone and Kent class them with animals 
ferce naturce, and in this State it was so decided in State 
vs. Higgins, 51 S. C. 53. 28 S. E. 15, 38 L. R. A. 561. 
Whether the shad fish, owing to its peculiar nature, 
and t-Q the circimistance that its presence within the 
waters of the State is due largely to the methods of 
propagation, and to the expenditure of moneys by the 
general Government for the benefit of all the people of 
the United S'ates, should be differentiated from this 
clasisfication, is an interesting question raised by the 
pleadings, and may be considered hereafter. Assuming 
that it is to be classed with other game as animals ferce 
naturcc. the property in which rests in the State, and that, 
under the principle settled by Geer vs. Connecticut, the 
State has the right to prohibit the exportation beyond 
its limits of any such fish caught within its' borders, does 
such right exist a<5 to any fish caught without its borders 
and brought within it? The source of title in such fish 
is not the State. There is no ownership by the State, or 
by the people in iheir collective capacity, in game or fish 
taken or killed outside the borders of the State, for it is 
not a food sunply which belongs in common to all the 
people of the State, and which can only become the sub- 
ject of ownership in a qualified way, as declared in that 
case. Therefore it seems to me clear that shad fish 
caught withotit the borders of the State are not subject 
to the limitations and restrictions that the State may im- 
pose on the ownership of fish caught within its borders. 
In the case of Davenport (C. C.) 102 Fed. 540. the peti- 
tioner, who keot a restaurant in the city of Spokane, in 
the State of Washington, was arrested and imprisoned 
for having in his possession and offering for sale quail 
which he had purchased in the State of Missouri. The 
statute upon which the prosecution was founded declared 
it to be a misdemeanor to offer for sale quail or other 
game therein described. The petitioner was discharged 
in habeas corpus procedings, the court saying: 
"T fully assent to the doctrine of these decisions holding that 
it. is competent for State legislatures to enact laws for the protec- 
tion of game; and I do not question the decision of the Supreme 
Court of the United States in Geer v. Connecticut, holding that 
the Legislature of the State has the constitutional power to en- 
tirely prohibit the hilling of gan-e within the State for the pur- 
|iose of conveying the same beyond the limits of the State, for it 
is true, and it is an elementarv principle, that the wild game 
within the State belongs to tlie people in their collective, sovereign 
capacity. Game is not tlie subject of private ownership, except 
in so far as the people may elect to make it so; and they may, if 
tliey see fit, absolutely prohibit the taking of it for traffic or 
cominerce in it; but the power of the 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 sub- 
ject of private ownership by a lawful purchase in another State. 
This decision of the Supreme Court does not directly or ittdirectly 
support the proposition that the Legislature of one State has the 
constitutional oower to prohibit traffic in game imported from 
another State." 
In People vs. A. Booth & Co., 86 N. Y. Supp. 272, de- 
cided November. 1903, in the Supreme Court of New 
York, an action was brought to recover penalties under 
the fish and game laws of New York for having posses- 
sion of, selling, and transporting brook trout out of 
season, imported from Canada and stored in cold storage, 
and cases in the State of New York are reviewed. Among 
them is the case of People vs. Buffalo Fish Company, 164 
N. Y. 100, 58 N. E. 36, 52 L. R. A. 803, 79 Am. St. Rep. 
622, where the court says : 
"Tlie question, and the only question, is whether a State statute 
can be 'awfully enacted to prohibit a citizen of this State from 
buying fish in Canada, importing it into this State, and exposing 
it for sale here. There is no question at all about the com- 
petency of the State, in the exercise. of the police power, to enact 
game laws. The question is wl»ether 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 the purchase of, fish for 
food in a foreign country, and it.s importation here for sale as such 
is a branch of foreign commerce, is too clear for discussion. 
* * * That the statute operates as a restriction upon the defend- 
ant's business 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 foreign commerce, is not questioned; and 
yet tlie contention is made, with great earnestness, that this statute 
is. perfectly valid. The reasoning upon which this conclusion is 
based, if I understand it, is that the State has the power to 
pass game laws, which no one denies; that the object of this 
statute was to protect game in this State, and not to interfere 
in any way whatever with foreign commerce, and, since the 
purpose that the Legislature had in view was lawful and laud- 
able, the statute is good, although in fact it does prohibit or re- 
strict the importaticn of fresh fish as an article of food. If the 
Legislature did not intend to restrict foreign commerce, as as- 
serted, tlien it is obvious that the_ statute 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 given a meaning^ which imputes to the lawniakers 
just the contrary, since it is said that the possession of impoited 
fish is. in terms, inhibited. The good intentions of a Legislature 
will not save a State statute from condemnation when it in fact 
conflicts with the supreme law of the land. If it restricts the ap- 
plication of commerce, as it certainly does, then it is void, no 
matter what name may have been given to it, or what good pur- 
pqae it was intended to promote." 
The court held in the Booth case that, if it was neces- 
sary to protect trout streams, they should be more 
effectively policed, or the use of the implements for their 
invasion regulated, and that provisions of that law were 
not a reasonable exercise of police power, but deprived 
a citizen of his property in fish as an article of com- 
merce, and says : 
"^1^ ':Wt'£ jS a bsoader reason for the invalidity of this law, 
and one nearer home. It is not only void under the commerce 
laws of the United States Constitution, but it is in conflict with 
the State Constitution, as depriving the owner of his property and 
liberty.' Much confusion and uncertainty is found in the Session 
Laws and the decisions in relation to game and game fishes, which 
comes, in a great part, from not considering the quality of the 
title which the possessor has in such property." 
There are two kinds or qualities of such title, depend- 
ing upon the place of capture and possession, and, citing 
Geer vs. Connecticut and other cases holding that, game 
being the property of the whole people, the law might im- 
pose such terms and conditions as it chose, not only as to 
its capture, but as to the disposition and use of the Same, 
and that, such privileges being granted by legislation, the 
conditions upon which it was granted followed the game, 
^ the court also says : . 
"But when game is obtained outside the State, and brought into 
it as private property, the owner does not get his right to it from 
the State. He holds it independent of the State, the same as he 
owns his house, his cattle, or securities. He is the absolute, un- 
cjualified owner of property, protected by the Constitution, and 
just as sacred from encroachment from the State as from others." 
In considering similar legislation in the State of Penn- 
sylvania, the court says in Commonwealth vs. Wilkinson, 
139 Pa. 298, 21 Atl. 14 : 
"The manifest object of this act was the preservation of game 
within this commonwealth. We cannot assume that it was in- 
tended to preserve game elsewhere, and it would be a forced con- 
struction to hold that it was intended to exclude from our mar- 
kets quail and other game killed in other States, where by the 
laws of those States the killing of it was lawful. * * * The 
law was not intended to have any extraterritorial effect, and if it 
was, it would be nugatory." 
The same doctrine is announced in Maryland (Dick- 
haut vs. State, 85 Md. 451, 37 Atl. 21, 36 L. R. A. 765, 
60 Am. St. Rep. 332), in Massachusetts (Commonwealth 
vs. Hall. 128 Mass. 410, 35 Am. Rep. 387), in Kansas 
(State vs. Saunders, 19 Kan. 127, 27 Am. Rep. 98), and 
in other States. 
There are decisions to the contrary in a number of 
States, the most notable of which is ex parte Maier, 103 
Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129, where the 
Supreme Court of California held that, in the exercise of 
the police power of the State, it may prohibit the taking 
of wild game, and any traffic or commerce in it, if deemed 
necessary for its protection or preservation of the public 
good, and, to this end, may make it criminal for any 
person to sell or offer for sale any of such game, whether 
killed within the State or without the State. These cases 
rest upon the principle stated by Lord Chief Justice Cole- 
ridge in Whitehead vs. Smithers, 2 C. P. D. 553, where, 
under an English statute making it unlawful to have in 
possession plover during the close season, it was held that 
a party who imported the dead birds from Holland, and 
sold them in the British market, came within the pro- 
hibition of the statute, and the court said: 
"It is said that it would be a strong thing for the Legislature 
of the United Kingdom to interfere with the rights of foreigners 
to kill foreign birds, but it may well be that the true and only 
mode of protecting British wildfowl from indiscriminate slaughter, 
as well as of protecting other British interests, is bv interfering 
indirectly with the proceedings of foreign persons. The object is 
to prevent British wildfowl from being improperly killed and sold 
under pretense of their being imported from abroad." 
It_ is hardly necessary to say that, the power of the 
British Parliament relating to questions of this kind be- 
ing supreme, this case furnishes no rule of guidance in 
construing a statute of a State whose power in respect to 
all matters of interstate and foreign commerce is limited 
by the Federal Constitution. The argument in favor of 
the validity of this statute is precisely that which was 
controlling in the Engli.^^h case just referred to ; that is, 
that it would be impossible for the police officers of the 
State to determine whether the shad come from within 
or from without the State, and that it would be easier to 
enforce local protective and inspection laws if they were 
made applicable as well to fish caught without the State 
as to those caught within its borders. As a mere rule 
of . convenience, this argument has weight, but the 
Supreme Court of the United States has definitely, pro- 
nounced unconstitutional such local laws as are in 
restraint of interstate commerce. Thus, in the oleomar- 
garine case, the State of Pennsylvania having passed an 
act making it a misdemeanor for any person to sell or 
have in his possession, with intent to sell, any imitation or 
adulterated butter or cheese, w-hich the Supreme Court 
of that State sustained, in Schollenberger vs. Pennsyl- 
vania, 171 U. S. I, 18 Sup. Ct. 757, 43 L. Ed. 49, it was 
held by the Supreme Court of the United States that, in- 
asmuch as oleomargarine was a recognized and proper 
subject of commerce, it could not be totally excluded from 
any particular State simply because the State may choose 
to decide that, for the purpose of preventing an impure 
a_i:d adulterated article, it will not permit the introduc- 
tion of a pure and unadulterated article within its hol- 
ders upon any terms whatever. The argument in favor 
of the statute was that it was enacted in good faith for 
the protection of the health of the citizens and for the 
prevention of deception, and that while it might be ad- 
mitted that there was actually pure oleomargarine, not 
dangerous to the public health, its purity could not be 
ascertained by any superficial examination, and that, any 
certain and effective- supervision of its manufacture being 
impossible, therefore all oleomargarine should be ex- 
cluded: but the court held that it was beyond the power 
of the State to interfere with interstate commerce, and 
it could not, for the purpose of preventing the introduc- 
tion of an impure or adulterated article, absolutely pro- 
hibit the introduction of that which was pure and whole- 
some. This case is on the line of many others where 
statutes passed under the cover of the exercise of police 
powers were held uncotistitutional, as being a burden 
upon interstate or foreign commerce. Henderson vs. 
Wickham, 92 U. S. 259, 23 L. Ed. 543 ; Chy Lung vs. 
Freeman, 92 U. S. 275. 23 L. Ed. 550; Railroad Company 
vs. Husen, 95 L'''. S. 465, 24 L. Ed. 527. 
It being so clear upon principle and upon the most ap- 
proved authorities that the State has no power to pro- 
hibit the exportation of game brought into the State from 
another State, or outside its borders, it was suggested by 
the learned Attorney-General at the hearing that the act 
be so construed as to confine its operation to' shad caught 
wnthin the limits of the State. Such interpretation would 
limit the w'brds of the act, and be manifestly against the 
intent of the Legislature -which enacted it, for it appears 
from the agreed statement of facts that an amendment 
was proposed, while the act was on its passage, striking 
out the wDr-ds '"'any sba-d fish," in seetibn 1, msertin'g 
in lieu thereof the words "any shad fish caught in the 
waters of the State of South Carolina," ^t the said 
amendment was rejected, and the court cannot do now by 
construction what the Legislature refused to do by enact- 
ment. 
In the Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550, 
the court had under consideration certain criminal prose- 
cutions for violations of what is known as the '"trade- 
mark legislation." The Congress had passed an act of 
the broadest character to punish counterfeiting of trade- 
marks, which was claimed to be valid as a regulation of 
commerce. Property in trade-marks had long been recog- 
nized and protected by the common law and by the 
statutes of the several States, and it was held in this case 
that if the power of Congress could in any case be ex- 
tended to trade-marks, as a regulation of commerce, it 
must be limited to their use in "commerce with foreign 
nations, and among the several States and with the In- 
dian tribes," and that this legislation was not, in its terms 
or essential character, a regulation that is limited ; but, in 
its language, embraced, and was intended to embrace, all 
commerce, including that between citizens of the same 
State. It was held that such legislation was void for 
want of constitutional authority; and, in reply to the sug-> 
gestion that Congress had power to regulate trade-marks 
used in commerce with foreign nations and among the 
several States, the lep-islation should be held valid in that 
class of cases, if no further, the court says : 
"While it may be true that when one part of a statute is valid 
and constitutional, and another part is unconstitutional and void, 
the court may enforce the valid part, where they are distinctly 
separable, so that each can stand alone, it is not within the 
judicial province to give to the words used by Congress a nar- 
rower meaning than they are manifestly intended to bear, in order 
that crimes may be punished which are not described in language 
that brings them within the constitutional power of that body." 
This precise point was decided in United States vs. 
Reese, 92 U. S. 214, 23 L. Ed. 563, where the Chief 
Justice says : 
"We are not able to reject the part which is unconstitutional 
and retain the remainder, because it is not possible to separate 
that which is constitutional, if there be any such, from that which 
is not. The proposed eftect is not to be attained by striking out 
or disregarding words that are in the section, but by inserting 
those that are not there now. Each of the sections must stand 
as a whole, or fall together. The language is plain. There is no 
room for construction, unless it be as to the effect of the Consti- 
tution. The Question then to be determined is whether we can 
introduce weds of limitation into a penal statute so as to. make 
it specific, when, as expressed, it is general only. * * * To 
limit the statute in the manner now asked for would be to make 
a new law, not to enforce an old one. This is no part of our 
duty." 
In view of the fact that the Legislature of South Caro- 
lina refused to limit the operation of this act by rejecting 
the amendment above i*eferred to, some of the concluding 
words in the case cited are apposite : 
"If we should, in the case before us, undertake to make by 
judicial construction a law which Congress did not make, it is 
quite probable we should do what, if the matter were now before 
that body, it would be unwilling to do, namely, make a trade- 
mark law which is partial in its operation, and which would com- 
plicate the rights which parties would hold in some instances 
under the act of Congress, and in others under State law." 
Having reached the conclusion that it is the duty of 
this court to declare the statute invalid under the . com- 
merce clause of the Constitution (Article i, section 8, cl. 
3), as an interference with interstate commerce, it is un- 
necessary to consider the question raised by the com- 
plaint, and upon which an interesting argument has been 
presented. The complaint charges, in paragraph 6, subd. 
"c," that the complainants are engaged in catching and 
dealing in, and shipping to points outside of the State of 
South Carolina, the shad fish deposited and propagated 
by the United States as food fishes, and in the master's 
report it appears that this allegation is admitted to be 
true. It is well known that the rivers of this State had 
been well-nigh depleted of shad, and the Congress of the 
United States has undertaken by its legislation to provide 
for the propagation of food fishes. In sections 4395, 4396, 
4397, and 4398 of the Revised Statutes fU. S. Comp; St. 
1901, pp. 3001, 3002], a fish commission was appointed ; 
and by the act of February 14, 1903, c. 552, section 4, 32 
Stat. 826 [U. S. Comp. St. Supp. 1903, p. 43], this com- 
mission was put in the Department of Commerce, and by 
its fixed policy and annual appropriations the United 
States Government has undertaken to replenish the 
coastal waters with food fishes. By section 4398 the com- 
missioner is authorized to take from the waters of the 
seacoast. where the tide ebbs and flows, such fish as may 
be needful and proper for the conduct of his duties, "any 
law, custom or usage of any State to the contrary not- 
withstanding" ; and it appears from the reports of the fish 
commission that over thirty millions of shad fry have 
been deposited in the rivers of this State. It seems to be 
now pretty well agreed among those learned in the sub- 
ject that the young shad hatched out in any particular 
river remain within a moderate distance of the mouth of 
that stream until the period occurs for their inland migra- 
tion. It was formerly believed that shad during the win 
ter moved toward the equator, and. wintering in the 
warmer waters of the south, started northward in a vast 
school at the beginning of the year, advancing along the 
coast in almost military array, sending a detachment up 
each sucessive stream, which, by a singular method of 
selection, sought the river in which they first saw the 
light ; and the argument is that shad artificially propa- 
gated in rivers and in coast waters of the United States 
by the money of the people of the United States belon'g 
to all the people of the United States, and therefore a 
State has no power to impose any restriction upon such 
property which the United States, in furtherance of its 
policy of furnishing to the people food fishes, has not im- 
posed. The argument is ingenious, and the question in- 
teresting, but the exigencies of this case do not require 
me to decide it, and I express no opinion upon that point. 
Let a decree be prepared in accordance with this 
opinion. 
The Tatpon Recotd Bfoken, 
Yacht Nerita, Cocoanut Grove, Fla., March 16.— Edi- 
tor Forest and Stream: I think I have broken the tarpon 
record. March 9, while fishing for snappers near Key 
Sargo, with crawfish bait and lO-ounce rod. I killed the 
bearer of the inclosed scale. Length, 18 inches; -v^eight, 
254 pounds. If this is not a "breaker" of one end Of the 
record, I am much mistaken. W. G. J. McCormick. 
[The little scale Mr, McCormick sends m^easures an 
inch. ill. siiemetEi?,f • ■ . . . . 
