Dec. 9, 1905.] 
FOREST AND STREAM. 
473 
rest my vote on the authority of the Bootman case with’ 
out further discussion, were it not for the earnestness 
and ability with which counsel attempted to distinguish 
that case, and for the fact that we are not agreed on the 
question. 
In the first place it is said that the Buffalo Fish Com- 
pany case was not overruled by the Bootman case, but 
that it is still authority for the proposition that the 
statute offends both the State and Federal Consitutions. 
Ihe answer is that it never was authority for any such 
proposition, and this without regard to the effect of the 
“Lacey Act”; three judges only assented to that proposi- 
tion, three united in a vigorous and logical defense of 
the constitutionality of the act, and the concurrence of 
the seventh with the opinion of the majority was ex- 
pressly limited to the point that the act was not applic- 
able, thereby, by implication at least, agreeing . with the 
minority on the constitutional question ; and while the 
decision in the Bootman case upon the meaning of the 
act was controlled by the Buffalo Fish Company case, 
the court expressly stated that its decision was governed 
by the rule of stare decisis. 
Next it is claimed that the peculiar wording of section 
5 of the Lacey Act presents a question not considered in 
the Bootman case, and that, therefore, the admitted facts 
of "this case present a new question for consideration. 
Said section 5 is as follows : “Section 5. — ThaF all dead 
bodies or parts thereof, of any foreign game animals, or 
game or song birds, the importation of which is pro- 
hibited, or the dead bodies, or parts thereof, of any wild 
game animals, or game or song birds transported into 
any State or Territory, or remaining therein for use, 
consumption, sale or storage therein, shall, upon arrival 
in such State or Territory, be subject to the operation 
and effect of the laws of such State or Territory enacted 
in the exercise of its police powers, to the same extent 
and in the same manner as though such anihaals and 
birds had been produced in such State or Territory, and 
shall not be exempt therefrom by reason of being intro- 
duced therein in original packages or otherwise. This 
act shall not prevent the importation, transportation or 
sale of birds or bird plumage manufactured from the 
feathers of barnyard fowl.” 1 
The argument is that the express reference to, “foreign 
ganie animals, or game or song birds, the importation of 
which is prohibited,” by necessary implication excludes 
frorh the effect of the statute all foreign game animals or 
birds the importation of which is not prohibited, and that 
although the words “any wild game animals, or game or 
song birds,” subsequently used in the section, are com- 
prehensive enough to include foreign game animals or 
birds, the meaning of these words is restricted by the 
word “transported,” which means “shipped,” from one 
State to another, and does not include an import. Read- 
ing the section without reference to its context, there 
seems to be much force in the first of this argument, for 
it would seem that the foreign game animals '-or birds 
referred to were those the importation of which was 
prohibited by the act, and that, by expressly including 
them, all others were excluded. The importation of cer- 
tain living animals and birds is prohibited by section 2 
of the act, as follows : “The importation of the mon- 
goose, the so-called ‘flying foxes’ or friar bats, the Eng- 
lish sparrow, the starling, or such other birds or animals 
as the Secretary of Agriculture may from time to time 
declare injurious to the interest of agriculture .or horti- 
culture, is hereby prohibited.” It may be that the words 
“the importation of which is prohibited,” in section 5, 
should be interpreted as though the phrase read “the im- 
portation of which, if living, is prohibited by section 2,” 
and assuming this to be the correct construction of this 
phrase, the question is presented whether it limits the 
subsequent general expression so as to exclude therefrom 
all foreign wild game animals and birds the importation 
of which is not thus prohibited. Certainly the expression 
“any wild game animals, or game or song birds,” in- 
cludes foreign animals and birds, and there is no force in 
the argument based on the use of the word “transported,” 
because that is not a correlative of the word ‘‘importa- 
tion,” it relates alike to the phrase “all dead bodies or 
parts thereof, of any foreign game animals,” etc., and to 
the phrase “all dead' bodies, or parts thereof, of any wild 
game animals,” etc., and obviously means “carried,” 
which is comprehensive enough to include both an import 
and a shipment from one State to another. The' office of 
construction is to determine the legislative intent, and 
when such intent is apparent, canons of construction, 
adopted solely to determine what it is, must yield to it. 
Congress declared in the first section of the act that its 
purp'ose was to aid in the preservation, distribution, in- 
troduction and restoration of game and other wild birds, 
and the manner in which it effected this purpose was by 
supplementing State laws to the extent of removing any 
question as to their conflict with the commerce clause 
of the Federal Constitution. It evidently deemed the act 
an appropriate one by which to prohibit the irnportation 
of animals and birds deemed to be injurious to agricul- 
ture and horticulture. Our attention is not called to any 
other Federal statute prohibiting the importation of game 
animals or birds, and if the application of section 5 is to 
be limited to the foreign animals and birds the importa- 
tion of w'hich is prohibited by the act, we shall have diffi- 
culty in determining what harm the Congress thought 
dead mongoose, bats, sparrows and starling might inflict 
upon agriculture or horticulture, , or exactly what aid in 
the enforcement of local laws would result from making 
their “dead bodies or parts thereof” subject to the opera- 
tion and effect of said laws. The construction contended 
for would entirely defeat the declared purpose of the 
act. Obviously the sole purpose of making game taken 
without the State subject to the laws of the State is to 
prevent the sale of game taken within the State under 
the guise of game taken from without, and if foreign 
game can be utilized for the purpose, it would be sense- 
less as well as useless to prohibit game from other 
States. As the expression “any wild game animals, or 
game or song birds transported into any State or Terri- 
tor}q” includes foreign game, and as that construction 
gives' effect to the declared purpose of the act, .while any 
othejj defeats such purpose, such construction should be 
jfdopted, whatever other parts of the act may be thought 
to mean. 
But evert if this statute, passed to accomplish a very 
|)eneficial purpose, can be so emasculated as to defeat 
such purpose, I should still vote to affirm this order upon 
the reasoning of Judge Gray in the Buffalo Fish Com- 
pany case, and of Judge Vann in the Bootman case. One 
question must certainly be deemed removed from the 
realm of controversy, viz., that the enactment of laws 
for the preservation of game is a legitimate exercise of 
the police power of the States. (Geer v. State of Con- 
necticut, 161 U. S. 519; Phelps V. Racey, 60 N. Y. 10; 
Lawton v. Steele, iig N. Y. 226; 152 U. S. 133; Com- 
monwealth V. Savage, 155 Mass. 278; Roth v. State, 51 
Ohio, 210; Magner v. People, 97 111 . 320; Merritt v. Peo- 
ple, 48 N. E. 325; Stevens v. People, 89 Md. 669; State 
V. Randolph, i Mo. 15; State v. Judy, 7 Mo. 524; State 
V. barrel!, 23 Mo. 176; ex parte Maier, 103 Cal. 476; 
State V. Schuman, 58 Pac. Rep. 661.) All of the cases 
cited supra except Geer v. State of Connecticut and Law- 
ton y. Steele, upheld the validity of statutes whose pro- 
hibition extended alike to game taken without as well 
as ydthin the State in which the statute was enacted. 
Having settled the question that the subject is a proper 
one for the exercise of the police power, the conclusion 
would seem tO’ be inevitable that the necessity for the 
exercise of such power and the means of making such 
exercise effective are solely for the Legislature, and that 
in selecting means legitimately tending to accompjish its 
purpose the Legislature does not offend cither the State 
or Federal Constitution. No one disputes the right of 
the State to legislate respecting purely internal affairs, 
and so far as the commerce clause of the Federal Con- 
stitution is concerned, this right does not rest upon the 
police power ; it is only when the legislation affects inter- 
state or foreign commerce that it must be sustained if at 
all by resort to the police power reserved to the States. 
No one disputes that , the individual holds his property 
subject to the legitimate exercise of the police power, 
and in this case it may be added that the petitioner ac- 
quired the property with the knowledge, with which he 
was at least chargeable, of the. circumstances under which 
he could possess it. Concededly. the subject of this legis- 
lation was a proper one for the exercise of the police 
power, the means adopted certainly tend to accomplish 
the object in view, and we cannot say that the object of 
the statute has been lost sight of or that the act in its 
essentials is anything but an act passed in the exercise 
of the police power to preserve the game of the State; 
and the fact that commerce may be remotely affected or 
(hat the dominion of an individual over his property may 
be controlled does not bring the act within the prohibi- 
tion of either the State or Federal Constitution, unless 
while asserting the power we are tO' deny the right to 
exercise it effectively. As I understand the decisions re- 
specting the commerce clause of . the Constitution, the 
inquiry in each case is v/hether the particular act is es- 
sentially a regulation of commerce, or a legitimate ex- 
mxise of the police power; if the former, merely calling 
it an act passed in the exercise of the police power does 
not save it from the_ prohitition of the Constitution ; if 
the latter, the mere fact that commerce may be affected 
does not make the act a regulation of commerce within 
the meaning of the Constitution. The line of demarka- 
tion between the power of the State and the prohibition 
of the Constitution is of necessity so indefinite that the 
court must determine in respect to each case as it arises 
on which side of the line it falls, and there certainly is 
no case in the Supreme Court of the United States so 
nearly in point as Geer v. State of Connecticut (supra). 
The statute there passed upon prohibited the possession 
for the purpose of transportation beyond the State of 
Connecticut of birds lawfully killed within the State. The 
plaintiff in error had become the possessor of the birds 
in question after they had become an article of com- 
merce. It is^ true, as pointed out by Judge O’Brien in 
the Buffalo Fish Company case, that one of the grounds 
of the decision of the Supreme Court was that wild game 
belonged to the people in common and that, therefore, 
the State could qualify the ownership by any person re- 
ducing such game to possession, but it is equally true that 
the court placed its decision upon the distinct ground of 
the undoubted right of the State in the exercise of its 
police power to pass laws for the preservation of game 
even though inter-State commerce was remotely affected, 
and Mr. Justice White, speaking for a majority of the 
court, prefaced the discussion of this question with the 
following statement : “Aside from the authority of the 
State, derived from the common ownership of game and 
the trust for the benefit of its people which the State 
exercises in relation thereto, there is another view of 
the power of the State in regard to the property in 
game, which is qually conclusive,” and in discussing 
the question, he said: “The exercise by the State of 
such power therefore comes directly within the prin- 
ciple of Plumley vs. Massachusetts, 155 U. S. 461, 473,” 
which was a case_ involving a sale in the original pack- 
age of oleomargine colored in imitation of butter, in 
violation of a statute of the State of Massachusetts. In 
the Geer case the statute in terms prohibited inter- 
state commerce in game lawfully reduced to p®ssession 
in the State of Connecticut. .The statute in question 
does not in terms or effect prohibit inter-State or 
foreign commerce. So far as the facts in the case at 
bar are concerned, the importation of birds by the 
petitioner was perfectly lawful and his possession of 
them would have continued lawful had he observed the 
statute by giving the bond required. It is claimed that 
this case is controlled by Leisy vs. Hardin (135 U. S. 
100) and that Plumley vs. Massachusetts (155 U. S. 
461) is not applicable; even then the facts of this case 
do not bring it within the prohibition of the commerce 
clause for the reason that there is no question here of 
possession in the original package; on the contrary, it 
must be assumed that these birds had become part 
of the mass of the property of the State subject to the 
laws passed by the State in the conduct of its purely 
internal affairs, because if the petitioner relies upon 
any exception to save him from the operation of the 
statute, even assuming that there be such an exception, 
that is a matter of defense which need not have been 
ngatived in the complaint, and Leisy vs. Hardin (supra) 
goes no further than to hold that it was not competent 
in that particular case for the State to prohibit the sale 
in the original package, and sUch was the case of 
Schollenberger vs. ' Pennsylvania (171 U. S. 4), con- 
struing an act which was essentially a regulation of 
commerce. It is said the right to import carrje? with 
it the right to sell, and the right to purchase of the 
importer must carry a like right to sell, and so on 
ad infinitum, whatever form the property may assume 
and by whomsoever it may become possessed. Ob- 
viously there must come a time when the property in- 
troduced into the State becomes so mingled with the 
mass of property of the State as to be subject to laws 
passed either for taxation or in the regulation of its 
purely internal affairs. The line must be drawn some- 
where and somewhat arbitrarily, and as drawn by the 
Supreme Court of the United States it is where the 
article loses its_ distinctive character as an import or as 
an article of inter-State commerce, tO' wit, when it 
ceases to retain the form in which it was transported 
into the State, when the original package is broken. 
(Brown vs. State of Maryland, 12 Wheaton, 419, and 
cases cited supra.) I vote to affirm the order. 
Strenuous Game Wardenship. 
I READ a dispatch in the morning paper to the effect 
that J. B. Burnham, game protector, had gone into the 
Adirondacks with fifteen men bent on razing camps 
illegally built on State land. That the camp owners were 
prepared to fire upon the game protector and his hench- 
men, etc. 
When a man puts money into city property he employs 
counsel to search the records and very frequently uses 
title insurance in addition, having great regard for the 
principle as old as the Romans, let the buyer beware. 
And now we witness an officer of the State by force 
and presumably with axes and arms about to remove and 
destroy buildings on State land that have cost in the 
aggregate a hundred thousand dollars, conservatively esti- 
mated. Some one of these camps, has cost perhaps twenty 
thousand dollars. Now, this being so I am curious, in the 
light of present facts, as to how far the campers went in 
finding out whether they were building on their own land 
or not. 
Did these men who put their money into this threatened 
property, acquire the right to build and occupy through 
“pull” or by official -juggling of any kind? If in acquir- 
ing the disputed property, and other than means above 
board and legitimate were employed, such means as they 
would take in acquiring a piece of New York city real 
estate, then certainly they assumed a risk which, at the 
time remote, has developed into a real and present one, 
if Mr. Burnham carries out his instructions. 
If the lands are State lands and the campers can show 
no legal authority for the occupation thereof, they cer- 
tainly become trespassers and their camps, luxurious or 
humble, as the case may be, are forfeited to the State and 
are at the mercy of the game protector. 
The situation is certainly an interesting one because 
(he dispatch reads that several of the finest camps have 
been erected by prominent men. If the campers can by 
armed force hold off the game protector from carrying 
out his razing plans until with and by injunctions they 
can throw the matter into .the courts, it may turn out 
eventually that the State may never succeed in ousting 
the campers. The defect in the title may be cured by 
legislative process, for such things have been done before. 
But on the other hand, if the law is plain and all ques- 
tions set previously at rest, and if the campers are, in the 
eye of the law, just plain, everyday squatters, and have 
been served with notice to that effect, it is then certainly 
up to Mr. Burnham to remove the camps, even if he 
has to use a regiment of soldiers in doing so. 
I have nothing to go by and from which to make my 
deductions other than the press dispatch, but to- me the 
situation is an intensely interesting one. All the legal 
questions may have been threshed out heretofore, and 
again the fact that these campers are trespassers and 
subject to ejectment may be so plain to the powers that 
be as to admit of no parley or argument of any kind 
other than summary ejectment by the State. 
Provided the State is in the right, what stirs me is how 
men of the caliber of those who have invested in these 
expensive camps could fall into the error of building on 
another man’s land withoAvP finding it out beforehand? - 
No doubt we will see the whole situation well venti- 
lated in the columns of Forest and Stream. Personally, 
I have great sympathy for a man who, having built him- 
self a camp by his favorite lake, sees the same razed by 
the strong arm of the law. Undoubtedly there are those 
who have bought from previous owners in absolute good 
faith; on these ejectment will come with a strong sense 
of injustice. There may be those who by political pull 
have had granted leases and who have taken the chance 
and, looking upon disturbance in the future as a thing 
of the utmost remoteness, have gone ahead and invested. 
Should the razing programme be carried out so- that not 
even one log remains upon another, these men will have 
no one to blame but themselves. 
But in either case it is not pleasant to think of such 
camps, as many of these must be, being turned into wood 
heaps. But the law is the law and all good citizens must 
submit to it or induce the Legislature to make other laws 
that will afford relief, which, I imagine, some of these 
alleged squatters will attempt to do before they stand- 
aside and see the work of destruction carried into effect. 
Charles Cristadoro. 
Game Warden Hill. 
Edward Hill, for fifteen years fish and game warden 
of 'Warren county, N. J., committed suicide at Roxbury, 
N. J., on Saturday night. Three months ago he had a 
severe attack of pneumonia. For the past week he had 
been acting queerly and was closely watched. 
Retrieving. 
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