Dec. 31, 1910.] 
FOREST AND STREAM. 
1055 
Pennsylvania Alien Law Constitutional 
Two decisions bearing on the game laws re¬ 
cently decided in Pennsylvania have an import¬ 
ant bearing on the conduct of aliens residing in 
the United States, and on game and bird pro¬ 
tection everywhere. 
The Pennsylvania law, known as the act of May 
8, 1909, forbids unnaturalized foreign born resi¬ 
dents to own or possess shotguns or rifles. Under 
this law a case was tried in March last, the 
State against Cosick, who was an unnaturalized 
foreign born resident. Cosick was convicted of 
having in his possession a shotgun, but the In¬ 
diana County Quarter Sessions granted a motion 
in arrest of judgment, and the State appealed. 
His case was argued at the same time as an¬ 
other case, Commonwealth vs. Papsone, appel¬ 
lant. Both cases were decided for the State, and 
a single opinion rendered, as the question at 
issue was the same in each. 
The cases were heard before Justices Rice, 
Henderson, Orlady, Head, Beaver and Porter. 
In the appeal of Papsone, the counsel for the 
appellant held that the act (1) violates the pro¬ 
visions of the fourteenth amendment of the con¬ 
stitution of the United States, and (2) is in 
contravention of the existing treaties between 
the kingdom of Italy and the United States. In 
each case W. H. Lemon and W. K. Shiras rep¬ 
resented the State. The opinion rendered by 
Judge Orlady, Oct. 10, 1910, is as follows: 
The defendant, an unnaturalized foreign-born resident 
of this commonwealth, was adjudged guilty of violating 
the provisions of the Act of May 8, 1909, P. L. 466— in 
owning and having in his possession a double-barreled 
' shotgun. The principal contention is, that the pro¬ 
visions of this act are in violation of the stipulations of 
the Fourteenth Amendment of the Federal Constitution, 
viz.: “Nor shall any State deprive any person of life, 
liberty or property without due process of law; nor deny 
to any person within its jurisdiction the eqyal protection 
of the laws.” 
The act in question is entitled, “An act to give addi¬ 
tional protection to wild birds and animals and game, 
within the commonwealth of Pennsylvania: prohibiting 
the hunting for or capture or killing of such wild birds 
or animals or game by unnaturalized foreign-born resi¬ 
dents; forbidding the ownership or possession of shot¬ 
gun or rifle by any unnaturalized foreign-born resident, 
within the commonwealth, and prescribing penalties for 
violation of its provisions.” The first section provides: 
“It shall be unlawful for any unnaturalized foreign- 
born resident to hunt for, or capture or kill, in this 
commonwealth, any wild bird or animal, either game or 
otherwise of any description, excepting in defense of 
person or property; and to that end, it shall be un¬ 
lawful for any unnaturalized foreign-born resident within 
this commonwealth to either own or be possessed of a 
shotgun or rifle of any make. . . Provided, that in 
add:tion to the above-named penalty, all guns of the 
before-mentioned kinds found in the possession or 
under control of an unnaturalized foreign-born resident, 
shall, upon conviction of such person, be declared for¬ 
feited to the commonwealth. 
As stated by the learned trial judge: “The right to 
hunt game is but a privilege given by the legislature, 
and is not an inherent right in the residents of the 
State. Wild animals and game of all sorts have from 
time immemorial been the property of the sovereign, 
and in Pennsylvania the property of the State. Its 
power to regulate and prohibit the hunting and killing 
of game has always been conceded.” This subject has 
been a fruitful source of legislation, and the frequent 
changes in our game and fish laws represent a zealous 
intention to define and supervise wild birds, animals, 
game and fish; to regulate how they are to be preserved 
and taken, declare the open and closed season when 
they may be taken; the manner and amount of the kill¬ 
ing; and the device, implement and method permitted. 
In Lawton vs. Steele, the Supreme Court of the 
United States declared: “The preservation of game and 
fish has always been treated as within the proper 
domain of the police power, and laws limiting the 
season within which birds and wild animals may be 
killed and exposed for sale, and prescribing the time 
and manner in which fish may be caught, have been 
repeatedly upheld by the courts ... it is within 
the authority of the Legislature to impose restrictions 
and limitations upon the time and manner of taking fish 
and game, considered valuable as articles of food or 
merchandise. The power to enact such laws has long 
been exercised, and so beneficially for the public that 
it ought not now to be called into question.” Even as 
between States, restrictions may be placed upon non¬ 
residents, which differ from those imposed on residents, 
in regard to license charges and other regulations. 
The authority of the legislature being conceded, and 
the purpose being so meritorious, then every lawful 
provision deemed necessary to effect the purpose is 
within the legislative power. Due process of law is 
observed in the destruction of tfish nets, in the for¬ 
feiture of vessels even though engaged for the coasting 
trade under the act of Congress, and in the summary 
abatement of nuisances and destruction of property. 
Cards, dice and other articles used for gambling pur¬ 
poses are perfectly harmless in themselves, but may fall 
under the ban of the law and may be summarily de¬ 
stroyed. Many instances of the use of the police power 
are to be found — the segregation of bawds, and pro¬ 
hibiting the use of public sidewalks by public prostitutes, 
the use of certain sections of a city for the manufacture 
of fertilizers, and other like instances have been held to 
be clearly within the police power. 
“Neither the amendment (XIV.),, broad and compre¬ 
hensive as it is—nor any other amendment was designed 
to interfere with the power of the State, sometimes 
termed its police power, to prescribe regulations to pro¬ 
mote the health, peace, morals, education and good 
order of the people.” We are within the provisions of 
the Constitution when we regulate the manufacture and 
sale of foodstuffs, the number of hours adult females 
should labor, and in prohibiting women and children 
from working in coal mines, in prescribing the qualifica¬ 
tions for physicians and undertakers, when musical 
bands may play in the public streets, when we authorize 
the killing of dogs following the track of_ protected game, 
and in denying the right of aliens to obtain licenses to 
sell intoxicating liquors. 
The creation of the board of game commissioners of 
the State, whose duty it is to protect and preserve the 
game, song and insectivorous birds and mammals, and 
the department of fisheries having charge of the protec¬ 
tion, propagation and distribution of fish are but legis¬ 
lative conclusions that have been reached after more 
than a century’s experience on this subject, and it was 
deemed necessary and important to add the provisions 
cf the act of 1909 in order to carry out more effectually 
the provisions of the earlier enactments. 
This legislation is not directed against any particular 
nationality or special 1 class of aliens, but prohibits “any 
unnaturalized foreign-born resident” from hunting, cap¬ 
turing or killing any wild bird or animal, and “to that 
end it shall be unlawful” for such person “to have or 
be possessed of a shotgun or rifle of any make.” The 
Act of May 5, 1864, prohibiting the carrying of con¬ 
cealed weapons is not obnoxious to the bill of rights, 
saving the rights of citizens to bear arms in defense of 
themselves and the State. Nor. does the provision in the 
fourteenth amendment, which declares “No. State shall 
make or enforce any law which shall abridge the priv¬ 
ileges or immunities of citizens of' the United States,” 
affect this defendant in any way, as he is not a citizen. 
An alien while domiciled with us is entitled • to the 
protection of the laws and owes in return for this pro¬ 
tection a temporary and local allegiance which con¬ 
tinues during the period of his residence. We legislate 
primarily for our own citizens in granting the special 
privileges that are independent of our inherent rights. 
The alien is prohibited from doing ptany things to 
which a native-born or a naturalized citizen is entitled. 
He cannot exercise any political rights whatever, nor be 
compelled to fill any elective or appointive office; he is 
not qualified to serve as a juror; or to receive a license 
to sell liquor, hawk or peddle. A non-resident debtor is 
not entitled to the benefit of our $300 exemption law. 
Each State has its own exemption laws for the benefit of 
its own citizens. The privilege to hunt game has been 
limited to our citizens, and, as was said in Presser vs. 
Illinois, “If the plaintiff in error has any such privilege 
he must be able to point to the provision of the Con¬ 
stitution or statutes of the United States by which it is 
conferred. For, as was said by this court in United 
States vs. Cruikshank, the government of the United 
States, although it is within the scope of its powers 
supreme and beyond the States, can neither grant nor 
secure to its citizens rights or privileges which are not 
expressly or by implication placed under its jurisdiction. 
All that cannot be so granted or so secured are left to 
the exclusive protection of the State.” 
A State has the same undeniable and unlimited juris¬ 
diction over all persons and things within its territorial 
limits as any foreign nation, when the jurisdiction 
is not surrendered or restrained by the constitution of 
the United States; by virtue of this it is not only the 
right, but the bounden duty of the State to advance the 
safety, happiness and prosperity of its people, and to 
provide for its general welfare by any and every act of 
legislation which it may deem conducive to these ends. 
The act of 1909 defines two, several and independent 
offenses: first, the hunting of game by an alien; second, 
for an alien to either own or be possessed of a shot¬ 
gun or rifle of any make. The primary subject of the 
act is the preservation of wild birds, animals and game, 
and under all our authorities, the privilege of hunting 
and taking game is limited, under defined restrictions, to 
our own citizens. Since long-range firearms—shotguns 
and rifles — are generally used in killing' wild birds and 
animals, it is clear that the legislature, in prohibiting a 
foreign-born, unnaturalized resident from hunting game, 
intended to make the hunting of game by an alien the 
more difficult by taking away from such persons the 
means by which game is usually killed. This prohibition 
against having deadly and long-range firearms does not 
in any way deprive the alien of property without due 
process of law, but simply defines and limits his rights 
to use firearms, by restricting such right to the use 
of short-range firearms—revolvers and pistols, and such 
other weapons as may be necessary for defense of his per¬ 
son and property. “Whatever one may claim as a right 
under the Constitution and laws of the United States by 
virtue of his citizenship, is a privilege of a citizen of 
the United States. Whatever the Constitution and laws 
of the United States entitle him to exemption from, he 
may claim as an exemption in respect to, and such a 
right or privilege is abridged whenever the State law 
interferes with any legitimate operation of Federal author¬ 
ity which concerns his interest, whether it be an authority 
actively exerted, or resting only in the express or implied 
command or assurance of the Federal Constitution or 
law. But the United States can neither grant nor secure 
to its citizens rights or privileges which are not ex¬ 
pressly or by reasonable implication placed under its 
jurisdiction, and all not so placed are left to the exclusive 
protection of the States.” 
This defendant is not a citizen of the United States nor 
of this commonwealth. Y\ hile he is within our jurisdic¬ 
tion, he is entitled to the equal protection of the laws, 
subject to the limitations of the class of which he is a 
member. He is one of a very large class of aliens, 
whose sojourn in the country is but temporary and 
whose place of abode is capricious and uncertain, who 
cannot speak our language nor understand our customs 
or laws, who pay no taxes and share no part of the 
public burden. Under all our decisions, his right to re¬ 
main among us is subject to the limitations imposed 
upon all of his class: “Equal protection of the laws” 
cannot be said to be denied whenever the law operates 
alike upon all persons and property similarly. And in 
determining what is due process of law we are bound to 
consider the nature of the property, the necessity for its 
sacrifice, and the extent to which it has heretofore been 
regarded as within the police power. ... So far as 
it is dangerous to the safety or health of the community, 
due process of law may authorize its summary destruc¬ 
tion. 
This act of 1909 is not in contravention of the existing 
treaty between the kingdom of Italy and the United 
States. The rule of construction to be followed in such 
a case has but recently been considered by our Supreme 
Court in Deni vs. Penna. R. R. Co., and Maiorano vs. 
B. & O. R. R. Co. By Art. 11 of the treaty between 
these countries, “the citizens of each of the high con¬ 
tracting parties have liberty to travel in the States and 
Territories of the other, to carry on trade, wholesale- 
and retail, to hire and occupy houses and warehouses, to 
employ agents of their choice, and generally to do any¬ 
thing incident to or necessary for trade upon the same 
terms as natives of the country, submitting themselves 
to the laws then established. ’ And Art. Ill provides. 
“The citizens of each of the high contracting parties 
shall receive, in the States and Territories of the other, 
the most constant protection and security for their pei- 
sons and property, and shall enjoy in this respect the 
same rights and privileges as are or shall be granted to 
the natives on their submitting themselves to the con¬ 
ditions imposed upon the natives.” As held in the 
last-cited case, “In construing a treaty the general rule 
