472 
FOREST AND STREAM. 
[Dec. 9, 1905. 
reservation. One of the most interesting of the partici- 
pants in the hunt was Miss Clara Sharp, sixteen years 
old, one of the most beautiful girls in Oklahoma. Born 
in the East, she has become a devotee of the sports of the 
West. There are few better riders than Miss Sharp and 
none who find more real enjoyment in the chaSe. She 
was a Star attraction of the chase and took as many 
wolves with her lariat as any man. John Abernethy, a 
young cowboy, who was with, the President during his 
hunt in April, was commander of the hunt. Nearly all 
the Indians of the Comanche and Kiowa tribes were at 
the scene. Quanah Parker, the Comanche chief, took 
a prominent part in the chase. A few Apaches were on 
hand, among them Geronimo, who attends the chase every 
year. Several officers of the Thirteenth Cavalry, sta- 
tioned at Fort Sill, also took part in the sports. 
The SiU Game Case. 
Full Text of the Opinion. 
SUPREME COURT, APPELLATE DIVISION— SECOND 
JUDICIAL DEPARTMENT.- 
Hirschberg, P. J. ; Woodward, Jenks, Rich and Miller, JJ. 
The People of the State of New York, on the relation of August 
Silz, Appellant, against Henry Hesterberg, Sheriff of the 
County of Kings, Respondent. 
Appeal by the relator from an order of the Supreme Court, entered 
in the office of the Clerk of the County of Kings on the 16th 
day of June, 1906, quashing a writ of habeas corpus. 
Edward Lauterbach (Edward R. Finch and John Burlinson 
Coleman with him on the brief), for the appellant. 
Julius M. Mayer, Attorney-General (Alexander T. Mason, Deputy 
Attorney-General, with him on the brief), for the respondent. 
Woodward, J. 
There is no dispute about the facts in this case. One 
August Silz, on the 30th day of March, 1905, had in his 
possession in the County of Kings one imported golden 
plover which was lawfully taken, killed and captured in 
England during the open season for such game there, 
and thereafter sold and consigned to Silz in New York 
city by a dealer in game in London, England, and at the 
same time he had in his possession one imported black- 
cock, a bird lawfully taken and killed in Russia and con- 
signed to the said Silz by the same London dealer. 
These birds it is conceded were duly imported by Silz 
in accordance with the provisions of the tariff laws and 
regulations in force, through the Custom House in New 
York city, during the open season for plover and 
grouse in the State of New York. It is admitted that 
these particular birds are entirely different varieties of 
game birds from the game birds known as plover and 
grouse in the State of New York, and from any bird 
native to the State of New York, or America; that 
they are different in form, size, color and markings from 
the game birds known as plover and grouse in the State 
of New York and from any American bird, and can 
be easily and readily distinguished from such plover 
and grouse found in New York State and from any bird 
native to America, both with their feathers on and 
after they are plucked. 
It is likewise conceded that such birds were and are 
staple, sound, wholesome and valuable articles of food, 
and are in constant use as such, and that they are recog- 
nized and staple articles of commerce between the dif- 
ferent countries of Europe and the United States of 
America, and were of the fair market value of one 
dollar and a_ half. The only question presented upon 
this appeal is_ whether the possession of these birds, 
under these circumstances, constituted a crime under 
the provisions of Sections 106, 108, 119 and 141 of the 
Forest, Fish and Game Laws, as amended by Chapter 
588 of the laws of 1904. 
In principle, the exact question here presented was 
before the court in People vs Buffalo Fish Co. (39 Misc. 
130), and Mr. Justice Lambert,, after reviewing the au- 
thorities, said: “The principle laid down by the case 
referred to clearly establishes the right of the defendant 
to import the fish in question into the State of New 
York as a purchaser and importer, and in the exercise 
of such right conferred by the Federal Government, it 
was not within the power of the Legislature to make 
the possession of the property thus imported unlaw- 
ful. Possession is a necessary incident to the right of 
importation, and to the right of property imported. 
Possession and the right of sale is the intended conse- 
quence of the right of importation. It would as ef- 
fectually destroy the privilege of importation to make 
the intended consequence thereof unlawful, as to pro- 
hibit importation itself. Applying the rules laid down in 
the case discussed to the admitted facts, that the fish 
in question were imported from the Dominion of Can- 
ada, and a duty had been paid for such privilege under 
the Dingley act, sortie of which were in the hands of 
the importer for shipment and the remainder in its 
possession for the purpose of sale, it is clear that the 
statute of this State making such possession unlawful 
is in conflict with the general power of Congress to 
regulate commerce between foreign . nations and the 
several States, and to the extent that it attempts to levy 
tribute upon the custodians of these fish, whether by 
means of taxation or a penalty for having them in pos- 
session, it is null and void.” Continuing a review of 
authorities, the same learned jurist sums up as follows: 
“This being the law of the land, that the importer ac- 
quires a right, not only to bring the articles into the 
country, but to mix them with the common mass of 
property, the fish imported by this defendant, became, 
by reason of such importation, absolute property in the 
hands of the importer, as well as all who might take 
title under them, and it is an abuse of the police power 
which cannot be justified by any sound prc^ess of' rea- 
soning to say that the Legislature may make it a crime, 
and subject the owner of this lawfully acquired property 
to penalties for merely having the property in his pos- 
session._ It is conceded, of course, that if these fish 
were diseased, or had remained exposed to the ele- 
ments until they were unfit for food, and constituted a 
menace to the public health, the State would have the 
right to interpose its police powers, and prevent the 
sale.” 
This case was considered by the Appellate Division 
in the Fourth Department, where it was affirmed on 
the opinion of the court below (45 App. Div.'63i), and 
was then taken to the Court of Appeals, where it was 
i)ffJrrog 4 f?y a divided court, O’Brien, J., writing, After 
a careful review of the questions submitted, the learned 
court said: “Admitting, for the purposes of the argu- 
™ent, that the statute in question means just what the 
plaintiff’s counsel claims for it, the important fact still 
remains that Congress has permitted the defendant to 
imporj: fresh fish upon payment of certain duties. It 
has paid the duties and complied with the Federal regu- 
lations, but when the article is brought here the State 
steps in and forbids the defendant to have it in his 
possession, and, of course, forbids the sale. This 
creates a direct conflict between the regulations of 
Congress and those of the State, and, consequently, the 
latter must yield to the former. The State had no 
power to extend its police legislation to such a trans- 
action, and, of course, had no power to- forbid what 
Congress had expressly permitted.” 
It appears to be conceded upon this appeal that the 
People vs. Buffalo Fish Co. (supra) would be con- 
trolling, were it not for certain statutory provisions 
which have been enacted since the decision in that 
case, and it is contended that the Court of Appeals in 
People vs. Bootman (130 N. Y. i) has finally de- 
termined the question here presented in favor of the 
respondent. As we read that case, however, it does not 
appear to question the law of the Buffalo Fish Com- 
pany case, in so far as it decided that fish brought into 
tliis country from foreign lands under the provisions of 
the custom laws could be . possessed and sold without 
regard to State statutes. In fact, the decision follows 
tlie Buffalo Fish Company . case, and holds that game 
birds, grouse, quail, etc., which were not killed in the 
State of New York, but which were killed in sister 
States and- transported' into this State in November, 
1900, and which were in the possession of the defend- 
ants in June, 1901, were not unlawfully possessed, and 
that the owners were not, therefore, subject to the 
penalties attempted to be imposed. After determining 
the only question then befo're'the court, the learned jurist 
vrriting went into a discussion of what the law might 
be under certain statutory provisions since enacted, and 
It was pointed out that “It was held by a majority of 
the learned justices of the Appellate Division that the 
Legislature has no power to- make the possession of 
imported game unlawful, as it would violate the pro- 
visions of our State Constitution relating to the pro- 
tection of property,” and it' was this determination of 
the Appellate Division in the First Department (95 
App. Div. 469) which the co.urt disapproved, and not 
the decision of Mr. Justice Lambert and the Appellate 
Division in the Fourth Department, that the act was 
unconstitutional and void as interfering with the com- 
merce clause of the Federal Constitution, in so far as 
it attempted to deal with articles imported under the 
provisions of the customs laws of the nation. “'While 
it is our duty,” says the court in the Bootman case 
(supra), “to affirm the judgment of tire Appellate 
Division, we have felt constrained to consider the con- 
stitutional question discussed by that learned court, 
lest the conclusion announced should be regarded as a 
precedent and result in evil.” 
The legislation under which it is claimed the police 
powers of the State have been enlarged so as to make 
it a crime lor a man who has lawfully possessed himself 
of property, having all of the attributes of property 
outside of this State, and in no wise a menace to the 
morals or health of the community, to bring it into his 
possession within this jurisdiction, is found in 31 United 
States Statutes at Large, Chapter 553, and in Section 
141 of the Forest, Fish and Game Law, as amended by 
Chapter 588 of the laws of 1904. The Federal statute 
provides in Section 5 that, “all dead bodies, or parts 
thereof, of any foreign game animals, or game or song 
birds, the importation of which is prohibited, or the 
dead bodies, or parts thereof, of any wild game ani- 
mals, or game or song birds transported into any 
State or Territory, or remaining therein for use, con- 
sumption, sale or storage therein, shall upon arrival 
in such State or Territory be subject to the opera- 
tion and effect of the laws of such State or Terri- 
tory enacted in the exercise of its police powers, 
to the same extent and in the same manner as 
though such animals or birds had been produced 
in such State or Territory, and shall not be exempt 
therefrom by reason of being introduced therein in 
original packages or otherwise.” The State statute 
appears to have been designed to be in harmony with 
this provision of the Federal statute, for it is provided 
that, . “’Whenever in this act the possession of fish or 
game, or the flesh of any animal, bird or fish, is pro- 
hibited, reference is had equally to such fish, game or 
flesh coming from without the State as to that taken 
within the State.” 
But what has either of these provisions to do with 
the conceded facts in the case now before us? "With- 
out going into an anal3^s of the statutes, it is plain that 
in so far as the Federal -'statute has any bearing what- 
ever, it must relate to inter-State and not to foreign 
commerce, and we are^ dealing with a conceded article 
of foreign commerce— ^with an article the importation 
of which is not prohibited. Articles which may be im- 
ported under the customs laws and regulations of the 
United States are within* the exclusive jurisdiction of 
Congress, and it has not attempted, in the so-called 
Lacey act, to place them under the police regulations 
of the States. ' All game animals or birds, “the impor- 
tation of which is prohibited” by the customs laws or 
regulations of the United States, are placed upon the 
same footing as “the dead bodies or parts thereof of 
any wild animals, or game or song birds, transported 
into any State or Territory,” the word “transported” 
being used in the sense of shipped from one State to 
another, but this by necessary implication excludes from 
State control those game birds, etc., the importation 
of which is not prohibited. As to these, Congress has 
provided for their importation, and, .as O’Brien, J., so 
well said in People vs) Buffalo Fish Co. (supra): “The 
State had no power to ' extend its police legislation to 
such a transaction, and; of course, had no power to 
forbid what Congress'^had expressly permitted.” 
Whatever may be our opinion as to the question 
discussed outside of the scope of the decision made in 
the Bootman case (supra), it certainly does not over- 
rule the Buffalo Fish Company case (supra) in so far 
as that pas^s held that fiih imported upder the tariff 
laws and regulations of the United States were not sub- 
ject to State control, except as they might become so 
by reason of some inherent vice in the fish themselves; 
and as the case now before us cannot be distinguished in 
principle from the latter, it follows that there should be 
a reversal of the order appealed from. 
Order appealed from reversed and petitioner dis- 
charged. 
SUPREME COURT, APPELLATE DIVISION— SECOND 
JUDICIAL DEPARTMENT. 
Hirschberg, P.J. ; Woodward, Jenks, Rich and Miller, JJ. 
State of New York, on the relation of August 
Silz, Appellant, against Henry Hesterberg, Sheriff of the 
County of Kings, Respondent. 
Appeal by the relator from an order of the Supreme Court, entered 
in the office of the Clerk of the county of Kings, on the 16th 
day of June, 1906, quashing a writ of habeas corpus. 
Edward Lauterbach^ (Edward R. Phneh and John Burlinson Cole- 
man with him on the brief), for the appellant. 
Julius M. Mayer, Attorney-General (Alexander T. Mason, Deputy 
Attorney-General, with him on the brief), for the respondent. 
M.ILLER, J. I dissent. 
Evidently the imprisonment which is the subject of 
inquiry in this proceeding was procured for the purpose 
of enabling the petitioner to present the legal questions 
involved upon his own statement of facts, and it is urged 
that the allegation in the complaint that the plover and 
grouse in question “can be easily and readily distin- 
guished from such plover and grouse found in the State 
of New York, and from any American bird, both with 
their feathers on and after they are plucked and after 
they are cooked and ready for the table,” prevents the 
application of section 141 of the Forest, Fish and Game 
law, added by chapter 194 of the laws of 1902, which, so 
far as material, provides, “Whenever in this act the pos- 
session of fish, or game, or the flesh of any animal, bird 
or fish, is prohibited, reference is had equally to such 
fish, game or flesh coming from without the State as to 
that taken within the State,” and the contention is that 
said section applies only to fish and game identical in 
form, shape, size, color and markings to the fish and 
game found in this State. By section 28 of the Forest, 
Fish and Game law (chapter 20, laws of 1900, as 
amended by chapter 317, laws of 1902) the sale or pos- 
session of “grouse” during the close season is prohi- 
bited; by section 30 of said law, as amended by chapter 
588, laws of 1904, the possession of plover from Jan. i 
to Aug. 15 is prohibited ; and by section 140 of said law 
“grouse” is defined as including “ruffed grouse, partridge 
and every member'of the grouse family”; in effect, there- 
fore, and practically in express terms, the Legislature 
has prohibited during the times stated the possession of 
plover and of every member of the grouse family, 
whether taken within the State or coming from without 
the State. It is difficult to see how the legislative mtent 
could have been more clearly expressed, for surely it is 
not necessary for the Legislature to say expressly that 
it intends to mean just what it says. But the argument 
is made that, because said section 141 was added after 
the decision in People vs. Buffalo Fish Co. (164 N. Y. 
93), which construed the act of 1900 as applying only to 
fish 'and game taken within the State, the word “such” 
in said section 141 should be construed as referring only 
to fish and game identical in size, etc., to that found in 
the State. The argument is ingenious rather than con- 
vincing. It is perfectly apparent that the amendment of 
1902 was declaratory of its previous intention, which the 
Legislature thought the Court of Appeals had miscon- 
ceived, and in expressing that intention it must be sup- 
posed as intending to mean just what it said. It is mat- 
ter of common knowledge that it is well nigh impossible 
to secure even a practical enforcement of laws like the 
one in question; and although it is said that the closing 
of our markets to game that can be distinguished from 
our own does not aid in the protection of our game, I 
can conceive, even assuming that “black cock” and 
“golden plover” can be distinguished from our own birds 
“when cooked,” that a very small number of “black cock” 
and “golden plover” might suffice to supply a very large 
demand for game in the New York markets. It is not 
our province to determine what measures should be 
adopted to secure an enforcement of the law, and the fact 
that we might regard the measures adopted by the Legis- 
lature as unnecessary or as too harsh furnishes no reason 
for construing the statute, that does not admit of con- 
struction, as w'e think the Legislature ought to; have en- 
acted it ; it is our duty rather to give effect to the ex- 
pressed intention of the Legislature unless it contravenes 
some- organic law. The constitutional questions pre- 
sented were fully considered by the Court of Appeals in 
People V. Bootman (180 N. Y. i). Judge Vann, speak- 
ing , for , every member of the court, said : “That act” 
(referring to the so-called Lacey Act, 31 U. S. Statutes at 
Large, chapter 553) “provides in substance that foreign 
game when transported into any State shall be subject to 
the laws of that State, enacted in the exercise of its 
police powers, to the same extent as if such game had 
been produced in such State, and shall not be exempt 
therefrom by reason of importation in original packages. 
* * That amendment” (referring to laws of 1902, 
chapter 194) “when read in connection with the Lacey 
Act and the decisions of the Federal courts, removes 
from the region of discussion the questions considered 
in_ the Buffalo Fish Company case in relation to the ap- 
plication of the Forest, Fish and Game law to imported 
game, which was decided, and the effect of the commerce 
clause of the Fe.deral. Constitution, which, although dis- 
cussed, was not: decided.’" (Italics are my own.) * * =t= 
“The action of Congress has taken away all questions of 
interstate commerce, so that the State can act with en- 
tire freedom and can prevent the shipment of game into 
or out of its territory; aiid if game is imported it cm 
regulate or prohibit the sale thereof.” (Italics are my 
own.) . “Such provisions are warranted by the police 
power, and are not in conflict with either the State mr 
Federal Constitution.” True, this discussion was not 
necessary to the „ decision, as the court stated, but grawe 
doubts op the constitutional questions had been created 
by the discussion in' the Buffalo Fish Company case and 
by the decision of the Appellate Division in the Boot- 
map case. To set these doubts at rest and because of 
the public importance of the question, the Court of 
Appeals stated its views, and it cannot be assumed that 
this was done without a full and careful consideration of 
the subject. It seems to me, therefore, that further dis- 
pussion in this court is purely academic, and j should 
