June 8, 1907.] 
FOREST AND STREAM. 
895 
Foreign Game Importation Bill. 
1 he full text of the amendment to the New 
York game law, which if passed would permit 
of the sale during the months of December, 
January, February, March _ and April of eagh 
year of a number of species of foreign game 
birds, is printed below. Following the text of 
the amendment, we print a brief filed by Wil¬ 
liam Dutcher, President of the National Asso¬ 
ciation of Audubon Societies with the Governor, 
I Senate and Assembly at Albany. 
AN ACT 
it To Amend Section Thirty-three of the Forest, Fish and 
Game Law, Relating to Certain Varieties of European 
r ^ Birds. 
The people of the State of New York, represented in 
Senate and Assembly, do enact as follows: 
Section 1. Section 33 of the forest, fish and game law 
is hereby amended so as to read as follows: 
Section 33. Certain wild birds protected.—Wild birds 
other than the English sparrow, crow, hawk, crow black¬ 
bird, snow owl and great horned owl 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. The provisions of this section shall not apply to 
game birds for which an open season is provided in this 
act. [The new matter follows:] Any person, firm or 
corporation having complied with all the conditions 
and provisions of this section may sell in. any city of 
, the State having over one million in population during the 
, months of December, January, February, March and 
April in each year, the following dead European game 
j birds, Egyptian quail, red leg, lapwing, Russian grouse 
b and rebhuhner. Said person, firm or corporation shall 
I j file with the commissioner of forest, fish and game, a 
surety company bond to the people of the State of New 
York, in the sum of, at least, five thousand dollars, or 
such larger sum as may be directed by said commis- 
| sioner, conditioned that the person filing the same wfill 
jj furnish to said commissioner, or his agents as herein 
; j provided for, full and free access to all books, papers, 
waybills, invoices and premises so as to permit of a 
i complete and full tracing of all of the game herein 
j: provided for, and that said importer will duly comply 
I 1 with all the provisions of the forest, fish and game law 
1 and with all the provisions of this section and any other 
conditions that said commissioner shall require. If said 
( person, firm or corporation is an importer of said game, 
j said importer shall also prior to the arrival of said game 
jj into the port of New York, file with the commissioner 
l> of forest, fish and game, a copy of the invoice and an 
j affidavit duly verified, and if such importer is a corpo¬ 
ration said affidavit shall be duly verified by an officer 
thereof, stating in detail the amount and kind of game 
to be imported, the country in which said game was 
! killed and the. country from which exported. Between 
1 the first and tenth days of May in each year, and oftener 
j if directed by said commissioner, said importer shall 
! file with said commissioner of forest, fish and game a 
i further affidavit duly verified, and if such importer is a 
I corporation said affidavit shall be duly verified by an 
I officer thereof, stating in detail the place and places with¬ 
in said city to which said gjme was taken upon arrival, 
j together with the name ami address of each purchaser 
! thereof, and the date and amourlt of each purchase. • 
1 Said affidavit shall also contain a .sworn statement that 
said importer has not sold or had in possession for sale 
I. at any time since the close of the preceding open season, 
j any birds, the sale of which is prohibited by this act. 
i Each purchaser of any of said imported birds who shall 
1 sell the same other than tef consumers shall file an affi¬ 
davit with said commissioner, specifying in detail the 
name and address of all subsequent purchasers from him 
1 of. said game, and the date and amount of each pur- 
I chase, and said affidavit shall also- contain the sworn 
j statement that said person, firm or corporation selling 
j said imported game has not sold or had in possession 
for sale at any time since the close of the preceding 
[open season any game, the possession or Sale of which 
■S prohibited by this act. Each restaurateur and every 
| other person selling said game shall between the first 
; and tenth days of May in each year, and oftener if di¬ 
rected by said commissioner, file with said commissioner 
in affidavit duly verified specifying in detail the number 
md kind of birds purchased, and the date and from 
vhom purchased, and said affidavit shall further state 
i hat said restaurateur or other person has not sold or 
| lad in possession for sale at any time since the close 
* eason of the preceding open season any game the pos- 
; session or sale of which is prohibited by this act. A 
: lerson, firm or corporation importing said game shall 
f ipon the arrival of said game into the port of New 
j 1 ork pay a tax of one cent per bird to the forest, fish 
nd game commission, to be paid by said commission 
j nto the treasury of the State of New -York in the same 
'■ay as other moneys are received and transmitted into 
aid treasury by said commission. None of said im- 
’Orted game herein provided for shall be possessed for 
ale or sold except with the feathered head and feet or 
, intil cooked and ready for service by a restaurateur 
| nd the burden of proving that the game is possessed 
nthin the meaning and provisions of this section shall 
e upon the possessor and no presumption that said 
i ame is possessed lawfully within this State shall arise 
i t any proceeding before any court, justice or magis- 
I ' ate , . until it affirmatively appears that the provisions 
! f this section have been complied with. Said com- 
I ussioner shall appoint not less than two persons, whose 
■ uties shall be to enforce the provisions of this section 
! nder the direction of said commissioner, and each of 
| horn shall receive a salary of fifteen hundred dollars 
| er annum, and for the actual and necessary expenses 
- f ® a ch of said persons in the performance of his official 
I uties the sum of one thousand dollars, or so much 
\ tereof as may be necessary. Any violation of thi 3 
I tetion shall forfeit the bond herein given as liquidated 
damages, and the person, firm or corporation guiltv of 
such violation may be denied the privilege of giving 
another bond under this section. Any person who sells 
or has in possession for sale any game birds otherwise 
than as authorized in this act without having complied 
with the provisions of this section, or any person who 
violates any of the provisions of this section shall be 
guilty of a misdemeanor punishable by a fine of not less 
than five hundred dollars and shall in addition to the 
penalties already provided for in this act be liable to 
a penalty of five hundred dollars and an additional 
penalty of one hundred dollars for each bird possessed 
in violation thereof. A false statement made in any of 
the affidavits specified in this section shall constitute 
the crime of perjury and be punishable by imprison¬ 
ment for a term not to exceed two years. 
.Sec. 2. I his act shall take effect December first 
nineteen hundred and seven. 
Mr. Dutcher’s brief follows: 
This bill proposes to authorize, in any city of 
the State having a population of more than -a 
million, the sale during _ December, January, 
February, March and April, of five species of 
foreign game birds; namely, Egyptian quail, red- 
leg, lapwing, Russian grouse and rebhuhner; at¬ 
tempts to impose a tax of one cent on each bird 
imported; and provides for the appointment of 
at least two special officers at a salary of $1,500 
and an allowance of $1,000 each for traveling 
expenses—a total annual expense of at least 
$5,000—for carrying out the provisions of the 
act. 
This bill (1) contains provisions in direct con¬ 
flict with the constitutions of New York and 
of the United States; and is also (2) defective 
in title; (3) bad in form; (4) bad in policy; (5) 
class legislation. 
(1) Bill Unconstitutional.—In so far as the 
bill provides for imposing a tax on birds im¬ 
ported, it is clearly in conflict both with'the con¬ 
stitution of the State of New York and the con¬ 
stitution of the United States. On p. 4, line 1, 
occurs the provisions : 
A person, firm or corporation importing said game 
shall upon the arrival of said game into the port of 
New \ork pay a tax of one cent per bird to the forest, 
fish and game commission, to be paid by said commis¬ 
sion into the treasury of the State of New York in the 
same way as other moneys are received and transmitted 
into said treasury by said commission. 
No statement i.s made as to the reasons for or 
objects of the tax, and the bill is, therefore, 
clearly in conflict with the provision in Sec. 48 
of the State constitution, which declares: 
Every law which imposes, continues or revives a tax 
shall distinctly state the tax and the object to which it 
shall be applied, and it shall not be sufficient to refer 
to any other law to fix such tax or object. 
The bill is also clearly in violation of Article 
1, Sec. 10, of the constitution of the United 
States relating to import duties. The Supreme 
Court of the. United States in passing upon a 
provision' enacted by the State of Maryland in 
1821, almost identical with the tax provision of 
this bill, held in Brown v. Maryland (12 Wheat 
419) that: 
An act of a State Legislature, requiring all importers 
oi foreign goods by the bale or package, etc., * * * 
to take out a license, for which they shall pay $50, and in 
case of neglect or refusal to take out such license sub¬ 
jecting them to certain forfeitures and penalties, is re¬ 
pugnant to that provision of the constitution ’ of the 
(united States which declares, that “no State shall, 
without the consent of Congress, lay any impost, or duty 
on imports or. exports, except what may be absolutely 
necessary for executing its inspection laws”; and to that 
which declares that Congress shall have power “to regu- 
late commerce with foreign nations, among the several 
states and with the‘Indian tribes.” 
The principles here laid down have been ap¬ 
plied, reiterated and relied upon by the same 
court in subsequent decisions so often that this 
decision is now generally regarded as a leading 
case for the guidance of courts in the interpre¬ 
tation of this section of the constitution. 
(2) Title Defective.—The title is defective: 
(a) In purporting “to amend Sec. 33 of the 
forest, fish and game law relating to certain 
varieties of European birds.” Sec. 33 of said 
law relates primarily to the protection of non¬ 
game birds native to the State of New York, not 
of European birds, or of game birds. It there- 
fore attempts to amend a section which in re- 
ality has no existence, as thefe is no “Sec. 33 
relating to certain varieties of European birds.” 
(.b) . The bill attempts to amend Sec. 33 by 
deliberately inserting two subjects, each separate 
and distinct from the subject matter of the origi¬ 
nal section (1), thfe sale of certain game birds 
imported from Europe, and (2) the imposition of 
an import tax. 
(c) The bill is manifestly a local measure in 
that it applies only to cities which have a popu¬ 
lation of more than a million, that is, to the 
City of New York, and as such its title is in 
violation of that provision of the constitution of 
New York (Sec. 40), which declares that “No 
private or local bill * * * shall embrace more 
than one subject and that shall be expressed in 
the title.” 
(3) Bill Bad in Form.—The subject matter of 
the forest, fish and game law is arranged in an 
orderly manner, and to facilitate reference to the 
various topics each special subject is placed in 
a separate section which is given a distinctive 
number. The amendments proposed in this bill 
have no relation to the subject matter of Sec. 
33 , but relate primarily to the sale of grouse and 
quail, and as such should be given a distinctive 
number following either Sections 28 or 29. 
The Bill is Ambiguous.—(a) In authorizing 
sale of European game, but allowing importa¬ 
tion of Egyptian quail; (b) in allowing sale of 
red-leg without specifying whether the birds in¬ 
tended are red-legged partridges, red-legged sand- 
Copyright, 1900 , by Harper & Brothers. 
From “ Nature’s Craftsmen.” 
A MINIATURE FISHING LODGE. 
A basket-hke frame to the net of a hydropsychid caddis worm. Net one-fourth Inch square. 
