The Silz Decision. 
In the Supreme Court of the United States, 
October term, on Nov. 2, 1908, Mr. Justice Day 
delivered the opinion of the court in the case of 
The People of the State of New York ex rel. 
August Silz, Plaintiff in Error, vs. Henry Hes- 
terberg, Sheriff of the County of Kings, in error 
to the Supreme Court of the State of New York. 
The counsel in the case were Messrs. Finch 
and Coleman for the plaintiff and James A. Don¬ 
nelly, Deputy Attorney General, for the defend¬ 
ant. The case was well conducted on both sides. 
Deputy Attorney General Donnelly conducted his 
case with great ability, made the most of every 
point of law and won a well deserved victory. 
Game protectors generally are to be congratu¬ 
lated on having so able a representative. 
This case comes to this court because of the 
alleged invalidity, under the Constitution of the 
United States, of certain sections of the game 
laws of the State of New York. Section 106 
of chapter 20 of the Laws of 1900 of the State 
of New York provides: 
Grouse and quail shall not be taken front January 1st 
to October 31st, both inclusive. Woodcock shall not be 
taken from January 1st to July 31st, both inclusive. 
Such birds shall not be possessed in their closed season 
except in the city of New York, where they may be 
possessed during the open season in the State at large. 
Section 25 of the law provides: 
The close season for grouse shall be from December 
1st to September 15th, both inclusive. As amended by 
Section 2, Chapter 317, Laws of 1902. 
Section 140 of the law provides: 
I. Grouse includes ruffed grouse, partridge and every 
member of the grouse family. 
Section 108 of the law provides: 
Plover, curlew, jacksnipe, Wilsons, commonly known 
as English snipe, yellow legs, killdeer, willet snipe, 
dowitcher, shortnecks, rail, sandpiper, baysnipe, surf 
snipe, winter snipe, ringnecks and oxeyes shall not be 
taken or possessed from January 1st to July 15th, both 
inclusive. As amended by Section 2, Chapter 588, 
Laws of 1904. 
Section 141 of the law provides: 
Whenever in this act the possession 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; Provided, nevertheless, That if there be any 
open season therefor, any dealer therein, if he has 
given the .bond herein provided for, may hold during the 
closed season such part of his stock as he has on hand 
undisposed of at the opening of such close season. 
Said bond shall be to the people of the State, condi¬ 
tioned that such dealer will not, during the close season 
ensuing, sell, use, give away, or otherwise dispose of 
any fish, game or the flesh, of any animal, bird or fish 
which he is permitted to possess during the close 
season by this section; that he will not in any way dur¬ 
ing the time said bond is in force violate any provision 
of the forest, fish and game law; the bond may also 
contain such other provisions as to the inspection of the 
fish and game possessed as the commission shall require, 
and shall be subject to the approval of the commission 
as to amount and form thereof, and the sufficiency of 
sureties. But no presumption that the possession of fish 
or game or the flesh of any animal, bird or fish is law¬ 
fully possessed under the provisions of this section 
shall arise until it affirmatively appears that the pro¬ 
visions thereof have been complied with. Added by 
Chapter 194, Laws of 1902. 
Section 119 of the law makes a violation of 
its provisions a misdemeanor, and subjects the 
offending parties to a fine. 
The relator, a dealer in imported game, was 
arrested for unlawfully having in his possession, 
on the 30th of March, 1905, being within the 
closed season, in the borough of Brooklyn, city 
of New York, one dead body of a bird known 
as the golden plover, and one dead body of an 
imported grouse, known in England as black¬ 
cock, and taken in Russia. The relator filed a 
petition for a writ of habeas corpus to be re¬ 
lieved from arrest, and upon hearing before a 
justice of the Supreme Court of the State of 
New York the writ was dismissed, and the 
relator remanded to the custody of the sheriff. 
Upon appeal to the Appellate Division of the 
Supreme Court of the State of New York this 
order was reversed and the relator discharged 
from custody. The judgment of the Appellate 
Division was reversed in the Court of Appeals 
of the State of New York. 184 N. Y. 126. Upon 
remittitur to the Supreme Court of the State 
of New York from the Court of Appeals the 
final order and judgment of the Court of Ap¬ 
peals was made the final order and judgment 
of the Supreme Court, and a writ of error brings 
the case here for review. 
The alleged errors relied upon by the plain¬ 
tiff in error for reversal of the judgment below 
are: First, that the provisions of the game 
law in question are contrary to the Fourteenth 
Amendment of the Constitution of the United 
States, in that they deprive the relator, and 
others similarly situated, of their liberty and 
property without due process of law. Second, 
that the provisions of the law contravene the 
Constitution of the United States, in that they 
are an unjustifiable interference with and regu¬ 
lation of interstate and foreign commerce, placed 
under the exclusive control of Congress by Sec¬ 
tion 8, Article 1, of the Federal Constitution. 
Third, that the court below erred in construing 
the act of Congress, commonly known as the 
Lacey Act, which relates to the transportation 
in interstate commerce of game killed in viola¬ 
tion of local laws. 31 Stat. at Large, chap. 553, 
p. 187. 
The complaint discloses that the relator, 
August Silz, a dealer in imported game, had 
in his possession in the city of New York one 
imported golden plover, lawfully taken, killed 
and captured in England during the open season 
for such game birds there, and thereafter sold 
and consigned to Silz in the city of New York 
by a dealer in game in the city of London. He 
likewise had in his possession the body of one 
imported blackcock, a member of the grouse 
family, which was lawfully taken, killed and 
captured in Russia during the open season for 
such game there, and thereafter sold and con¬ 
signed to Silz in New York city by the same 
dealer in London. Such birds were imported 
by Silz, in accordance with the provisions of the 
tariff laws and regulations in force, during the 
open season for grouse and plover in New York. 
Such imported golden plover and imported black¬ 
cock are different varieties of game birds from 
birds known as plover and grouse in the State 
of New York; they are different in form, size, 
color and markings from the game bird known 
as plover and grouse in the State of New York,; 
and can be readily distinguished from the plover, 
and grouse found in that State. And this is; 
true when they are cooked and ready for the, 
table. The birds were sound, wholesome and! 
valuable articles of food, and recognized as 
articles of commerce in different countries of 
Europe and in the United States. These state¬ 
ments of the complaint are the most favorable 
possible to the relator, and gave rise to the com¬ 
ment in the opinion in the Court of Appeals that 
the case was possibly collusive. That court 
nevertheless proceeded to consider the case or 
the facts submitted and a similar course will 
be pursued here. While the birds mentioned 
imported from abroad, may be distinguished 
from native birds, they are nevertheless of the 
families within the terms of the statute, and the 
possession of which, during the closed season 
is prohibited. 
As to the first contention, that the laws ir 
question are void within the meaning of the 
Fourteenth Amendment because they do not con 
stitute due process of law. The acts in questioi 
were passed in the exercise of the police powei 
of the State with a view to protect the gann 
supply for the use of the inhabitants of thi 
State. It is not disputed that this is a well 
recognized and often-exerted power of the Stati 
and necessary to the protection of the supply 0 
game which would otherwise be rapidly depleted 
and which, in spite of laws passed for its pro 
tection, is rapidly disappearing from many por 
tions of the country. 
But it is contended that while the protectioi 
of the game supply is within the well-settle> 
boundaries of the police power of a State, tha 
the law in question is an unreasonable and arbi 
trary exercise of that power. That the Legisla 
ture of the State is not the final judge of th 
limitations of the police power, and that sue 
enactments are subject to the scrutiny of th | 
courts and will be set aside when found to b j 
unwarranted and arbitrary interferences wit 
rights protected by the Constitution in carryin; ■ 
on a lawful business or making contracts fo - 
the use and enjoyment of property, is well set 
tied by former decisions of this court. Lawto: ;i 
vs. Steele, 152 U. S. 137; Holden vs. Hardy, 16 
U. S. 366; Dobbins vs. Los Angeles, 195 U. S 
236. 
It is contended, in this connection, that th 
protection of the game of the State does ncj 
require that a penalty be imposed for the pos 
session out of season of imported game of th 
kind held by the relator. It is insisted that 
method of inspection can be established whic 
will distinguish the imported game from tha 
of the domestic variety and prevent confusio 
in its handling and selling. That such game ca 
be distinguished from domestic game has bee 
disclosed in the record in this case, and it ma 
be that such inspection laws would be all thsj: 
would be required for the protection of domesti 
