FOREST AND STREAM. 



[MarcH 10, 1906. 
| GANTE RAG AND GUN 

The Game’ Law Upheld. 
The Prohibition of the Possession of Imported 
Game is Constitutional. 


COURT OF APPRALS: 
People of the State of New York ex rel 
John Hill, Respondent, | 
against 
Henry Hesterberg, Sheriff 
County of Kings, Appellant. 
\ 
of oes 
People of the State of New York ex rel 
August Silz, Respondent. 
against 
Henry Hesterberg, Sheriff of 
County of Kings, Appellant. 
Appeal in each case from an order of the Appellate 
Division reversing an order of the Special Term which 
remanded the relator to custody and discharging said 
relator. “ 
ulius M. Mayer, Attorney General, for Appellant. 
Edward Lauterbach and John L. Hill for respondents. 
CULLEN Chain 
The relators were arrested on warrants charg- 
ing them with a violation of the game law. They 
sought discharge from their arrest by writs of 
habeas corpus. On the return to those writs 
they were remanded to custody. On appeal to 
the Appellate Division, the orders of the Special 
Term were reversed, and the relators discharged 
from custody. From those orders these appeals 
are taken. As the affidavits on which the war- 
rants for the arrest of the relators were issued 
differ materially in their statements of facts, we 
will first consider the one made in the Hill case. 
The affidavit avers that on the third day of March 
said John Hill did have in his possession in the 
Clarendon Hotel, in the Borough of Brooklyn, 
one dead body of a bird known as a golden 
plover, and one dead body of a fowl called a 
grouse; that as the affiant was informed and be- 
lieved the said plover and grouse were taken 
without the State of New York, to wit: from 
England and Russia, and thence brought into the 
Borough of Brooklyn. 
The forest, fish and game law (Chap. 20, Laws 
of 1900; amended Chap. 317, Laws of 1902; Chap. 
588, Laws of 1904), by Sections 106 and 108, en- 
acts that grouse shall not be taken or possessed 
from Jan. 1 to Oct. 31, nor plover from Jan. I to 
July 15. By Section 140 of said act, grouse is 
defined to include ruffed grouse, partridge and 
every member of the grouse family. By Section 
141 the inhibition enacted by the other sections of 
the statute are made to apply to fish, game and 
flesh coming from without the State, as well as 
to that taken within the State. By Section 119 
any one violating the provisions of the statute 
hereinbefore recited is guilty of a misdemeanor 
and liable to a fine of $25 for each bird taken or 
possessed in violation thereof. The relator was 
in possession of the birds during the prohibited 
period, and hence was guilty of a misdemeanor, 
unless he is relieved from the penalties pre- 
scribed by the statute by the fact that the birds 
were imported from foreign countries. We shall 
not discuss at any length the claim of the re- 
lator that the statute contravenes the constitution 
of this State as depriving the relator of his prop- 
erty without due process of law. That question 
has been settled adversely to that claim by the 
decision of this court in Phelps vs. Racey (60 
N. Y. 10) and People vs. Bootman (180 N. Y., 1) 
in which it was held within the power of the 
Legislature, in order to effect the preservation 
of game within the State, to enact not only a 
close season during which the possession of such 
game should be unlawful. but further to enact 
that the possession in the State, during such sea- 
son of game taken without the State should be 
equally unlawful. The Phelps case is cited by 
the Supreme Court of the United States in Geer 
vs. Connecticut (161 U. S., 519), in which the 
the 
validity of a statute of that State was upheld, not 
only on the ground that the original ownership of 
wild game is in the State, but on the further 
ground that the preservation of such game is a 
valid exercise of the police power of the State. 
To the argument that the exclusion of foreign 
game in no way tends to the preservation of 
domestic game, it is sufficient to say that sub- 
stantially the uniform belief of the Legislature 
and people is to the contrary, and that both in 
England and many of the States in this country 
legislation prohibiting the possession of foreign 
game during the close season has been upheld as 
being necessary to the protection of domestic 
game, on the ground that without such inhibition 
or restriction any law for the protection of 
domestic game could be successfully evaded 
(Whitehead vs. Smithers, 2 Common Pleas Div., 
553; ex-parte Mayer, 103 Cal., 4761; Magner vs. 
People, 99 Ill., 371; Missouri vs. Randolph, 1 
Mo., 151; Stevens vs. State, 89 Md., 669; Roth 
vs. State, 51 Ohio State, 356; Commonwealth vs. 
Savage, 155 Mass., 378). The case of Phelps vs. 
Racey (Supra) has never been overruled by this 
court. In the opinion delivered in People vs. 
Buffalo Fish Co. (164 N. Y., 93), Judge O’Brien 
took two positions; first, that the exclusion of 
fish taken without the State was invalid, as inter- 
fering with the power of Congress to regulate 
foreign and interstate commerce; and_ second, 
that under a proper construction of the game law 
as it then stood, the statute was applicable only 
to fish taken within the State. It was this second 
ground alone which commanded the assent of the 
majority of judges, and on which the decision in 
the case proceeded. This ground has been re- 
moved by the amendment of the statute already 
cited, which makes it applicable to game taken 
without the State. People vs. Bootman (Supra) 
reaffirms the doctrine of Phelps vs. Racey, and 
the validity of the legislation before us, at least 
so far as the constitution of this State is in- 
volved. In that case, while we affirmed the de- 
cision below because the offenses for which the 
defendant was prosecuted were committed before 
the amendment to the statute, we felt called upon 
to express Our opinion on the whole subject, so 
that the citizen must not be misled by the opin- 
ion rendered in the court below and thus un- 
wittingly submit himself to severe penalties. If, 
as is now claimed, the views then expressed by 
the court on the subject now before us were 
obiter and not necessary to the decision made, it 
is sufficient to say we adhere to them, not on the 
ground of stare decisis, but because they com- 
mand our approval. Therefore, if the act of 
Congress, passed May 25, 1900, commonly termed 
the “Lacey act,’ empowered the State to enact 
the legislation before us, it is unnecessary for us 
to enter into any examination upon the question 
of interference with foreign and interstate com- 
merce. discussed, but not decided in People vs. 
Buffalo Fish Company. 
‘That Congress can authorize an exercise of the 
police power by a State, which, without such. 
authority, would be an unconstitutional inter- 
ference with commerce, has been expressly de- 
cided by the Supreme Court of the United States 
in matter of Rohrer (140 U. S., 545). The ques- 
tion before us is merely the interpretation of the 
Lacey act, which the learned counsel for the 
respondents contend applies solely to interstate 
shipments, and not to importations from foreign 
countries. The act is entitled: ‘An act to en- 
large the powers of the Department of Agricul- 
ture, prohibit the transportation by interstate 
commerce of game killed in violation of local 
laws, and for other purposes.” 
The first section relates to the Department of 
Agriculture, the second prohibits the importation 
of any foreign wild animal or birds except under 
special permit from that Department, providing 
that it shall not restrict the importation of nat- 
ural history specimens nor caged birds, such as 
domesticated canaries, parrots and the like. It 
then forbids absolutely the importation of mon- 
goose, flying foxes, the English sparrow and such 
other birds as the Secretary of Agriculture may 
deem injurious to the interests of agriculture or 
horticulture. The third section forbids the de- 
livery to a common carrier for shipment from 
one State to another of any wild animals or birds 
killed in the State in violation of its laws. The 
fitth section deals with the transportation into 
any State of animals killed without the State. It 
is as follows: 
“That all dead bodies or parts thereof, or any foreign 
game animals, or game or song birds, the importation 
of which is prohibited, or the dead bodies or parts thereof, 
of any wild game animals or game or song birds trans- 
ported 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 Terri- 
tory enacted in the exercise of its police powers to the 
same extent and in the same manner as though such 
animals or birds had been produced in such State or 
Territory, and shall not be exempt therefrom by reason 
of being introduced therein in original packages or other- 
wise. This act shall not prevent the importation, trans- 
portation or sale of birds or bird plumage manufactured 
from the feathers of barnyard fowl.” 
It is contended that the title of the statute 
tends to show that the operation of Section 5 is 
confined to shipment from other States, and not 
to importation from foreign countries. If the 
title of an act could limit its effect, which it can- 
not (Potter's Swarris on Statutes, p. 102), still 
this claim is without foundation. The first two 
sections of the act deal with the Department of 
Agriculture, and the reference thereto in the title 
is appropriate. The third and fourth sections 
deal with interstate transportation of game killed 
in violation of local laws, and the reference in 
the title “prohibit the transportation by interstate 
commerce of game killed in violation of local 
laws” is equally appropriate. The fifth section, 
which is the one before us, deals with an entirely 
different matter—transportation into a State, not 
out of a State—and is embraced in the title of 
the statute only under the designation “and for 
other purposes.” As to this subject, therefore, 
the title in no respect tends to limit the effect of 
the act. It is difficult to see any reason why 
Congress should have sought to discriminate be- 
tween the bodies of game, song birds or wild 
animals brought into a State from other States 
and those brought from foreign countries. The 
object of the legislation was to enable the States 
by their local law to exercise a power over the 
subject of the preservation of game and song 
birds, which, without that legislation, they could 
not exert. Every consideration that led Congress 
to think it wise to confer on the State of New 
York, as well as on other States, a power (which 
is practically that of prohibition during the close 
season, at least for the purpose of sale) over the 
importation of partridges from New Jersey, Penn- 
sylvania or Connecticut is equally applicable to 
the importation of such birds from Canada. The 
obstacle to the successful enforcement of the game 
laws of the State would be as great in the one 
case as the other, and as Canada borders on the 
United States for a distance of three thousand 
miles, the practical danger would be as great in 
one case as in the other, whatever it might be in 
the case of an importation from Europe. 
But it is said Congress permits the importation 
of foreign game and collects the duty thereon, 
and it cannot have intended to allow property 
thus imported to be confiscated. The proposition 
that Congress allows the importation of foreign 
game is true only in a restricted sense. By the 
“Lacey act’ Congress determined to aid the 
States in the enforcement of their game laws, but 
did not deem it wise to enact a game law of its 
own, and this for the very obvious reason that 
the game laws of the different States vary 
greatly, a variation justified in no small degree 
