FOREST AND STREAM. 
775 
! 
Nov. 14, 1908.] 
y game. But, subject to constitutional limitations, 
| the Legislature of the State is authorized to 
pass measures for the protection of the people 
of the State in the exercise of the police power, 
and is itself the judge of the necessity or ex¬ 
pediency of the means adopted. In order to 
protect local game during the closed season it 
has been found expedient to make possession 
of all such game during that time, whether taken 
within or without the State, a misdemeanor. 
In other States of the Union such laws have 
been deemed essential, and have been sustained 
by the courts. Roth vs. State, 51 O. S. 209; 
Ex parte Maier, 103 Cal. 476; Stevens vs. The 
State, 89 Md. 669; Magner vs. The People, 97 
Ill. 320. It has been provided that the posses¬ 
sion of certain kinds of game during the closed 
season shall be prohibited, owing to the possi¬ 
bility that dealers in game may sell birds of the 
domestic kind under the claim that they were 
taken in another State or country. The object 
of such laws is not to affect the legality of the 
taking of game in other States, but to protect 
the local game in the interest of the food supply 
of the people of the State. We cannot say that 
such purpose, frequently recognized and acted 
upon, is an abuse of the police power of the 
State, and as such to be declared void because 
contrary to the Fourteenth Amendment of the 
Constitution. 
It is next contended that the law is an attempt 
to unlawfully regulate foreign commerce which, 
by the Constitution of the United States, is 
placed wholly within the control of the Federal 
Congress. That a State may not pass laws 
directly regulating foreign or interstate com¬ 
merce has frequently been held in the decisions 
of this court. But while this is true, it has also 
been held in repeated instances that laws passed 
by the States in the exertion of their police 
power, not in conflict with laws of Congress 
upon the same subject, and indirectly or re¬ 
motely affecting interstate commerce, are never¬ 
theless valid laws. M., K. & T. Ry. Co. vs. 
Haber, 169 U. S. 613; Pennsylvania Co. vs. 
Hughes, 191 U. S. 477; Asbell vs. Kansas, 209 
U. S. 251. 
In the case of Geer vs. Connecticut, 161 U. S. 
517, the plaintiff in error was convicted for hav¬ 
ing in his possession game birds killed within 
the State, with the intent to procure transporta¬ 
tion of the same beyond the State limits. It 
| was contended that this statute was a direct 
attempt by the State to regulate commerce be¬ 
tween the States. It was held that the game 
of the State was peculiarly subject to the power 
of the State which might control its ownership 
for the common benefit of the people, and that 
it was within the power of the State to prohibit 
the transportation of game killed within its 
limits beyond the State, such authority being 
embraced in the'right of the State to confine 
the use of such game to the people of the State. 
After a discussion of the peculiar nature of 
such property and the power of the State over 
it, Mr. Justice White, who delivered the opinion 
of the court in that case, said : 
( 
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 equally con- 
j elusive. The right to preserve game flows from the un¬ 
doubted existence in the State of a police power to that 
end, which may be none the less efficiently called into 
play, because by doing so interestate commerce may be 
remotely and indirectly affected. Kidd v. Pearson, 128 
U. S., 1; Hall v. De Cuir, 95 U. S., 485; Sherlock v. 
Ailing, 93 U. S., 99, 103; Gibbons v. Ogden, 9 Wheaton, 
1. Indeed, the source of the police power as to game 
birds (like those covered by the statute here called in 
question) flows from the duty of the State to preserve 
for its people a valuable food supply. Phelps v. Racey, 
60 N. Y., 10; Ex Parte Maier, ubi sup.; Magner v. The 
People, ubi sup., and the cases there cited. The exer¬ 
cise by the State of such power therefore comes directly 
within the principle of Plumley v. Massachusetts, 155 
U. S., 461, 473. The power of a State to protect by 
adequate police regulation its people against the adulter¬ 
ation of articles of food (which was in that case main¬ 
tained), although in doing so commerce might be re¬ 
motely affected, necessarily carries with it the existence 
of a like power to preserve a food supply which belongs 
in common to all the people of the State, which can only 
become the subject of ownership in a qualified way, and 
which can never be the object of commerce except with 
the consent of the State and subject to the conditions 
which it may deem best to impose for the public good. 
In the case of Plumley vs. Massachusetts, re¬ 
ferred to in the opinion just cited, 153 U. S. 
461, 473, it was held that a law of the State of 
Massachusetts, which prevented the sale of oleo¬ 
margarine colored in imitation of butter, was a 
legal exertion of police power on the part of 
the State, although oleomargarine was a whole¬ 
some article of food transported from another 
State, and this upon the principle that the Con¬ 
stitution did not intend, in conferring upon Con¬ 
gress an exclusive power to regulate interstate 
commerce, to take from the States the right to 
make reasonable law's concerning the health, life 
and safety of its citizens, although such legis¬ 
lation might indirectly affect foreign or inter¬ 
state commerce, and the general statement in 
Sherlock vs. Ailing, 93 U. S. 99, was quoted with 
approval; 
And it may be said generally, that the legislation of a 
State, not directed against commerce or any of its regula¬ 
tions, but relating to the rights, duties and liabilities of 
citizens, and only indirectly and remotely affecting the 
operations of commerce, is of obligatory force upon citi¬ 
zens within its territorial jurisdiction, whether on land 
or water, or engaged in commerce, foreign or interstate, 
or in any other pursuit. 
It is true that in the case of Schollenberger 
vs. Pennsylvania, 171 U. S. 1, it was held that 
a State law directly prohibiting the introduction 
in interstate commerce of a healthful commodity 
for the purpose of thereby preventing the traffic 
in adulterated and injurious articles within the 
State, was not a legitimate exercise of the police 
power. But in that case there was a direct, and 
it was held unlawful, interference with inter¬ 
state commerce as such. In the case at bar the 
interference with foreign commerce is only in¬ 
cidental and not the direct purpose of the enact¬ 
ment for the protection of the food supply and 
the domestic game of the State. 
It is provided in the New York statutes that 
game shall be taken only during certain seasons 
of the year, and to make this provision effectual 
it is further provided that the prohibited game 
shall not be possessed within the State during 
such times, and owing to the likelihood of fraud 
and deceit in the handling of such game the pos¬ 
session of game of the classes named is like¬ 
wise prohibited, whether it is killed within or 
without the State. Such game may be legally 
imported during the open season, and held and 
possessed within the State of New York. It 
may be legally held in the closed season upon 
giving bond as provided by the statute against 
its sale. Incidentally, these provisions may af¬ 
fect the right of one importing game to hold 
and dispose of it in the closed season, but the 
effect is only incidental. The purpose of the 
law is not to regulate interstate commerce, but 
by laws alike applicable to foreign and domestic 
game to protect the people of the State in the 
right to use and enjoy the game of the State. 
The New York Court of Appeals further held 
that the so-called Lacey Act (31 Stat. 187) re¬ 
lieved the regulation of the objection in ques¬ 
tion because of the consent of Congress to the 
passage of such laws concerning such commerce, 
interstate and foreign, within the principles upon 
which the Wilson Act was sustained by this 
court. In re Rahrer, 140 U. S. 545. 
In the aspect in which the game law of New 
York is now before this court we think it was 
a valid exertion of the police power, independent 
of any authorization thereof by the Lacey Act, 
and we shall therefore not stop to examine the 
provisions of that act. For the reasons stated, 
we think the Legislature, in the particulars in 
which the statute is here complained of, did not 
exceed the police power of the State nor run 
counter to the protection afforded the citizens 
of the State by the Constitution of the United 
States. Judgment affirmed. 
Cruelly to a Stay-al-Home. 
Baltimore, Md., Nov. 5. — Editor Forest and 
Stream: Do you not think it a low-down and 
criminal act for a New Brunswick guide, even 
though he is considered a good woodsman and 
en enjoyable companion, to send to a fellow, 
whom he knows is bound to be a stay-at-home 
this year, such a disturbing and inflammatory 
message as this: 
“Riley Brook, Oct. 25.—Say, I thought I would 
drop you a line to say that I am going to stir 
up some big game by and bye, and to let you 
know that critters seem pretty plentiful this 
year. I saw two bears within twenty yards of 
the house the other day and inclose a photo¬ 
graph of a small caribou bull that was in my 
field a few days since. Several moose got tan¬ 
gled up in my wire fence this summer and there 
is a prospect of very large heads this autumn. 
We had lots of fun with bears last spring and 
the trout were as good as ever. That is all i 
have to say.—C. L. Barker.” 
If you also think that as a natural result of 
such thoughts as this act suggests, the fellow’s- 
high temperature goes still higher, his office stool 
seems to him smaller and harder, the click, click,, 
click of the typewriter, the ding-a-ling of the 
telephone bell and the clang-clang of the pass¬ 
ing trolley cars’ warning sink deeper into his 
nervous system so that when he goes home at 
evening and finds his neighbor’s fowls are again 
through the hedge and at work in his flower 
bed he swats them good and hard until a so- 
called fine hen falls down and stays down and 
the neighbor hurls dynamic language over the 
hedge all the while—then I want to know ought 
not the incendiary guide be condemned as an 
accessory before the fact and be sentenced to 
stop just sitting up there in the cool of the woods 
waiting for the trout to take his fly and the big 
game to entertain him by occasionally snapping 
twigs and crossing his line of vision? 
S. W. L. 
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