The provision in the General Statutes of Connecticut (Revision
of 1888, § 2546) that
"no person shall at any time kill any woodcock, rued grouse or
quail for the purpose of conveying the same beyond the limits of
this State, or shall transport or have in possession, with intent
to procure the transportation beyond said limits, any of such birds
killed within this State"
is legislation which it is within the constitution power of the
legislature of the state to enact.
The General Statutes of the State of Connecticut provide (Sec.
2530, Revision 1888):
"Every person who shall buy, sell, expose for sale, or have in
his possession for the purpose, or who shall hunt, pursue, kill,
destroy or attempt to kill any woodcock, quail, ruffled grouse,
called partridge, or gray squirrel between the first day of January
and the first day of October, the killing or having in possession
of each bird or squirrel to be deemed a separate offense, . . .
shall be fined not more than twenty-five dollars. . . ."
It is further by the statute of the same state provided (Sec.
2546):
"No person shall at any time kill any woodcock, ruffled grouse,
or quail for the purpose of conveying the same beyond the limits of
the state; or shall transport or have in possession, with intention
to procure the transportation beyond said limits, of any such birds
killed within this state. The reception by any person within this
state of any such bird or birds for shipment to a point without the
state shall be
prima facie evidence that said bird or
birds were killed within the state for the purpose of carrying the
same beyond its limits."
An information was filed against the plaintiff in error in the
police court of New London, Connecticut, charging him
Page 161 U. S. 520
with, on the 19th day of October, 1889, unlawfully receiving and
having in his possession, with the wrongful and unlawful intent to
procure the transportation beyond the limits of the state, certain
woodcock, ruffled grouse, and quail, killed within this state after
the first day of October, 1889. The trial of the charge resulted in
the conviction of the defendant and the imposing of a fine upon
him. Thereupon the case was taken by appeal to the criminal court
of common pleas. In that court, the defendant demurred to the
information on the ground, among others, that the statute upon
which that prosecution was based violated the Constitution of the
United States.
The demurrer being overruled and the defendant declining to
answer over, he was adjudged guilty and condemned to pay a fine and
costs and to stand committed until he had complied with the
judgment. An appeal was prosecuted to the Supreme Court of Errors
of the state. The defendant on the appeal assigned the following
errors:
"The court erred --"
"1st. In holding that the allegations contained in the complaint
constitute an offense in law."
"2d. In holding that said complaint was insufficient in the law
without an allegation that the birds therein mentioned were killed
in this state for the purpose of conveying the same beyond the
limits of this state."
"3d. In refusing to hold that so much of section 2546 of the
General Statutes, under which this complaint is brought, as may be
construed to forbid the transportation from this state of the birds
therein described, lawfully killed, and permitted by the laws of
the state to become the subject of traffic and commerce, is
unconstitutional and void."
"4th. In refusing to hold that so much of said section as may be
construed to forbid the receiving and having in possession, with
intent to procure the transportation thereof to another state,
birds therein described, lawfully killed, and permitted by the laws
of this state to become the subject of traffic and commerce is
unconstitutional and void."
"5th. In holding that the defendant is guilty of an offense
Page 161 U. S. 521
under said section if such birds were lawfully killed in this
state and were bought by the defendant in the markets of this state
as articles of property, merchandise, and commerce, and had begun
to move as an article of interstate commerce."
"6th. In not rendering judgment for defendant."
In the supreme court, the conviction was affirmed. The case is
reported in 61 Conn. 1442. To this judgment of affirmance this writ
of error is prosecuted.
MR. JUSTICE WHITE, after stating the case, delivered the opinion
of the Court.
By the statutes of the State of Connecticut referred to in the
statement of facts, the open season for the game birds mentioned
therein was from the first day of October to the first day of
January. The birds which the defendant was charged with unlawfully
having in his possession on the 19th of October, for the purpose of
unlawful transportation beyond the state, were alleged to have been
killed within the state after the first day of October. They were
therefore killed during the open season. There was no charge that
they had been unlawfully killed for the purpose of being
transported outside of the state. The offense therefore charged was
the possession of game birds for the purpose of transporting them
beyond the state, which birds had been lawfully killed within the
state. The court of last resort of the state held, in interpreting
the statute already cited, by the light afforded by previous
enactments, that one of its objects was to forbid the killing of
birds within the state during the open season, for the purpose of
transporting them beyond the state, and also additionally as a
distinct offense to punish the having in possession, for the
purpose of transportation beyond the state, birds lawfully killed
within the state. The court found that the information did not
charge the first of these offenses, and therefore that the sole
offense which it covered was the latter.
Page 161 U. S. 522
It then decided that the state had power to make it an offense
to have in possession, for the purpose of transportation beyond the
state, birds which had been lawfully killed within the state during
the open season, and that the statute, in creating this offense,
did not violate the interstate commerce clause of the Constitution
of the United States. The correctness of this latter ruling is the
question for review. In other words, the sole issue which the case
presents is was it lawful, under the Constitution of the United
States (Section 8, Article I), for the State of Connecticut to
allow the killing of birds within the state during a designated
open season, to allow such birds, when so killed, to be used, to be
sold, and to be bought for use, within the state, and yet to forbid
their transportation beyond the state? Or, to state it otherwise,
had the State of Connecticut the power to regulate the killing of
game within her borders so as to confine its use to the limits of
the state, and forbid its transmission outside of the state?
In considering this inquiry, we of course accept the
interpretation affixed to the state statute by the court of last
resort of the state. The solution of the question involves a
consideration of the nature of the property in game and the
authority which the state had a right lawfully to exercise in
relation thereto.
From the earliest traditions, the right to reduce animals
ferae naturae to possession has been subject to the
control of the law-giving power.
The writer of a learned article in the Repertoire of the Journal
du Palais mentions the fact that the law of Athens forbade the
killing of game (Rep.Gen.J.P. vol. 5, p. 307), and Merlin says
(Repertoire de Jurisprudence, vol. 4, p. 128) that "Solon, seeing
that the Athenians gave themselves up to the chase, to the neglect
of the mechanical arts, forbade the killing of game."
Among other subdivisions, things were classified by the Roman
law into public and common. The latter embraced animals
ferae
naturae, which, having no owner, were considered as belonging
in common to all the citizens of the state. After pointing out the
foregoing subdivision, the Digest says:
Page 161 U. S. 523
"There are things which we acquire the dominion of, as by the
law of nature, which the light of natural reason causes every man
to see, and others we acquire by the civil law -- that is to say,
by methods which belong to the government. As the law of nature is
more ancient, because it took birth with the human race it is
proper to speak first of the latter. 1. Thus, all the animals which
can be taken upon the earth, in the sea, or in the air -- that is
to say, wild animals -- belong to those who take them, . . .
because that which belong to nobody is acquired by the natural law
by the person who first possesses it. We do not distinguish the
acquisition of these wild beasts and birds by whether one has
captured them on his own property or on the property of another,
but he who wishes to enter into the property of another to hunt can
be readily prevented if the owner knows his purpose to do so."
Dig. bk. 41, Tit. 1, De Adquir. Rer. Dom.
No restriction, it would hence seem, was placed by the Roman law
upon the power of the individual to reduce game, of which he was
the owner in common with other citizens, to possession, although
the Institutes of Justinian recognized the right of an owner of
land to forbid another from killing game on his property, as,
indeed, this right was impliedly admitted by the Digest in the
passage just cited. Institutes, Book 2, Tit. 1, s. 12.
This inhibition was, however, rather a recognition of the right
of ownership in land than an exercise by the state of its undoubted
authority to control the taking and use of that which belonged to
no one in particular, but was common to all. In the feudal as well
as the ancient law of the continent of Europe, in all countries,
the right to acquire animals
ferae naturae by possession
was recognized as being subject to the governmental authority and
under its power not only as a matter of regulation, but also of
absolute control. Merlin,
ubi supra, mentions the fact
that although tradition indicates that, from the earliest day in
France, every citizen had a right to reduce a part of the common
property in game to ownership by possession, yet it was also true
that, as early as the Salic law, that right was regulated
Page 161 U. S. 524
in certain particulars. Pothier, in his treatise on Property,
speaks as follows:
"In France, as well as in all other civilized countries of
Europe, the civil law has restrained the liberty which the pure law
of nature gave to everyone to capture animals who, being
in
naturali laxitate, belong to no person in particular. The
sovereigns have reserved to themselves, and to those to whom they
judge proper to transmit it, the right to hunt all game, and have
forbidden hunting to other persons. Some ancient doctors have
doubted if sovereigns had the right to reserve hunting to
themselves, and to forbid it to their subjects. They contend that,
as God has given to man dominion over the beasts, the prince had no
authority to deprive all his subjects of a right which God had
given them. The natural law, say they, permitted hunting to each
individual. The civil law which forbids it is contrary to the
natural law, and exceeds, consequently, the power of the
legislator, who, being himself submitted to the natural law, can
ordain nothing contrary to that law. It is easy to reply to these
objections. From the fact that God has given to human kind dominion
over wild beasts it does not follow that each individual of the
human race should be permitted to exercise this dominion. The civil
law, it is said, cannot be contrary to the natural law. This is
true as regards those things which the natural law commands or
which it forbids, but the civil law can restrict that which the
natural law only permits. The greater part of all civil laws are
nothing but restrictions on those things which the natural law
would otherwise permit. It is for this reason, although, by the
pure law of nature, hunting was permitted to each individual, the
prince had the right to reserve it in favor of certain persons, and
forbid it to others. Pothier, Traite du Droit de Propriete, Nos.
27-28."
"The right belongs to the King to hunt in his dominion. His
quality of sovereign gives him the authority to take possession
above all others of the things which belong to no one, such as wild
animals. The lords and those who have a right to hunt hold such
right but from his permission, and he can affix to this permission
such restrictions and modifications as may seem to him good."
No. 32.
Page 161 U. S. 525
In tracing the origin of the classification of animals
ferae
naturae as things common, Pothier moreover says:
"The first of mankind had in common all those things which God
had given to the human race. This community was not a positive
community of interest, like that which exists between several
persons who have the ownership of a thing in which each have their
particular portion. It was a community, which those who have
written on this subject have called 'a negative community,' which
resulted from the fact that those things which were common to all
belonged no more to one than to the others, and hence no one could
prevent another from taking of these common things that portion
which he judged necessary in order to subserve his wants. Whilst he
was using them, others could not disturb him; but when he had
ceased to use them, if they were not things which were consumed by
the fact of use, the things immediately reentered into the negative
community, and another could use them. The human race having
multiplied, men partitioned among themselves the earth and the
greater part of those things which were on its surface. That which
fell to each one among them commenced to belong to him in private
ownership, and this process is the origin of the right of property.
Some things, however, did not enter into this division, and remain
therefore to this day, in the condition of the ancient and negative
community."
No. 21.
Referring to those things which remain common, or in what he
qualified as the negative community, this great writer says:
"These things are those which the jurisconsults called
res
communes. Marcien refers to several kinds -- the air, the
water which runs in the rivers, the sea, and its shores. . . . As
regards wild animals,
ferae naturae, they have remained in
the ancient state of negative community."
In both the works of Merlin and Pothier,
ubi supra,
will be found a full reference to the history of the varying
control exercised by the law-giving power over the right of a
citizen to acquire a qualified ownership in animals
ferae
naturae, evidenced by the regulation thereof by the Salic law,
already
Page 161 U. S. 526
referred to, exemplified by the legislation of Charlemagne and
continuing through all vicissitudes of governmental authority. This
unbroken line of law and precedent is summed up by the provisions
of the Napoleon Code, which declares (arts. 714, 715):
"There are things which belong to no one, and the use of which
is common to all. Police regulations direct the manner in which
they may be enjoyed. The faculty of hunting and fishing is also
regulated by special laws."
Like recognition of the fundamental principle upon which the
property in game rests has led to similar history and identical
results in the common law of Germany, in the law of Austria, Italy,
and, indeed, it may be safely said in the law of all the countries
of Europe. 1 Saint Joseph Concordance, p. 68.
The common law of England also based property in game upon the
principle of common ownership, and therefore treated it as subject
to governmental authority.
Blackstone, while pointing out the distinction between things
private and those which are common, rests the right of an
individual to reduce a part of this common property to possession,
and thus acquire a qualified ownership in it, on no other or
different principle from that upon which the civilians based such
right. 2 Bl.Com. 1, 12.
Referring especially to the common ownership of game, he
says:
"But after all, there are some few things which, notwithstanding
the general introduction and continuance of property, must still
unavoidably remain in common, being such wherein nothing but an
usufructuary property is capable of being had, and therefore they
still belong to the first occupant during the time he holds
possession of them, and no longer. Such (among others) are the
elements of light, air, and water, which a man may occupy by means
of his windows, his gardens, his mills, and other conveniences.
Such also are the generality of those animals which are said to be
ferae naturae or of a wild and untamable disposition,
which any man may seize upon or keep for his own use or
pleasure."
2 Bl.Com. 14.
"A man may lastly have a qualified property in animals
Page 161 U. S. 527
ferae naturae -- propter privilegium; that is, he may
have the privilege of hunting, taking, and killing them in
exclusion of other persons. Here he has a transient property in
these animals usually called 'game' so long as they continue within
his liberty, and he may restrain any stranger from taking them
therein; but, the instant they depart into another liberty, this
qualified property ceases. . . . A man can have no absolute
permanent property in these, as he may in the earth and land; since
these are of a vague and fugitive nature, and therefore can only
admit of a precarious and qualified ownership, which lasts so long
as they are in actual use and occupation, but no longer."
2 Bl.Com. 394.
In stating the existence and scope of the royal prerogative,
Blackstone further says:
"There still remains another species of prerogative property,
founded upon a very different principle from any that have been
mentioned before -- the property of such animals,
ferae
naturae, as are known by the denomination of 'game,' with the
right of pursuing, taking, and destroying them, which is vested in
the King alone, and from him derived to such of his subjects as
have received the grants of a chase, a park, a free warren, or free
fishery. . . . In the first place, then, we have already shown, and
indeed it cannot be denied, that, by the law of nature, every man,
from the prince to the peasant, has an equal of pursuing and taking
to his own use all such creatures as are
ferae naturae,
and therefore the property of nobody, but liable to be seized by
the first occupant, and so it was held by the imperial law as late
as Justinian's time. . . . But it follows from the very end and
constitution of society that this natural right, as well as many
others belonging to man as an individual, may be restrained by
positive laws enacted for reasons of state or for the supposed
benefit of the community."
2 Bl.Com. 410.
The practice of the government of England from the earliest time
to the present has put into execution the authority to control and
regulate the taking of game.
Undoubtedly this attribute of government to control the taking
of animals
ferae naturae, which was thus recognized
and
Page 161 U. S. 528
enforced by the common law of England, was vested in the
colonial governments, where not denied by their charters or in
conflict with grants of the royal prerogative. It is also certain
that the power which the colonies thus possessed passed to the
states with the separation from the mother country, and remains in
them at the present day insofar as its exercise may be not
incompatible with, or restrained by, the rights conveyed to the
federal government by the Constitution. Kent, in his Commentaries,
states the ownership of animals
ferae naturae to be only
that of a qualified property. 2 Kent Com. 347. In most of the
states, laws have been passed for the protection and preservation
of game. We have been referred to no case where the power to so
legislate has been questioned, although the books contain cases
involving controversies as to the meaning of some of the statutes.
Commonwealth v. Hall, 128 Mass. 410;
Commonwealth v.
Wilkinson, 139 Penn.St. 298;
People v. O'Neil, 71
Mich. 325. There are also cases where the validity of some
particular method of enforcement provided in some of the statutes
has been drawn in question.
State v. Saunders, 19 Kan.
127;
Territory v. Evans, 2 Idaho 634.
The adjudicated cases recognizing the right of the states to
control and regulate the common property in game are numerous. In
McCrady v. Virginia, 94 U. S. 395,
the power of the State of Virginia to prohibit citizens of other
states from planting oysters within the tidewaters of that state
was upheld by this Court. In
Manchester v. Massachusetts,
139 U. S. 240, the
authority of the State of Massachusetts to control and regulate the
catching of fish within the bays of that state was also maintained.
See also Phelps v. Racey, 60 N.Y. 10;
Magner v.
People, 97 Ill. 320;
American Express Co. v. People,
133 Ill. 649;
State v. Northern Pacific Express Co., 58
Minn. 403;
State v. Rodman, 58 Minn. 393;
Ex Parte
Maier, 103 Cal. 476;
Organ v. State, 56 Ark. 270;
Allen v. Wyckoff, 48 N.J.L. 93;
Roth v. State, 51
Ohio St. 209;
Gentile v. State, 29 Ind. 415;
State v.
Farrell, 23 Mo.App. 176, and cases there cited;
State v.
Saunders, ubi supra; Territory v. Evans, ubi supra.
Page 161 U. S. 529
While the fundamental principles upon which the common property
in game rest have undergone no change, the development of free
institutions had led to the recognition of the fact that the power
or control lodged in the state, resulting from this common
ownership, is to be exercised, like all other powers of government
as a trust for the benefit of the people, and not as a prerogative
for the advantage of the government as distinct from the people, or
for the benefit of private individuals as distinguished from the
public good. Therefore, for the purpose of exercising this power,
the state, as held by this Court in
Martin
v. Waddell, 16 Pet. 410, represents its people, and
the ownership is that of the people in their united sovereignty.
The common ownership, and its resulting responsibility in the
state, is thus stated in a well considered opinion of the Supreme
Court of California:
"The wild game within a state belongs to the people in their
collective sovereign capacity. It is not the subject of private
ownership except insofar as the people may elect to make it so, and
they may, if they see fit, absolutely prohibit the taking of it or
traffic and commerce in it if it is deemed necessary for the
protection or preservation of the public good.
Ex Parte Maier,
ubi supra."
The same view has been expressed by the Supreme Court of
Minnesota, as follows:
"We take it to be the correct doctrine in this country that the
ownership of wild animals, so far as they are capable of ownership,
is in the state not as a proprietor, but in its sovereign capacity,
as the representative and for the benefit of all its people in
common."
State v. Rodman, supra.
The foregoing analysis of the principles upon which alone rests
the right of an individual to acquire a qualified ownership in
game, and the power of the state, deduced therefrom, to control
such ownership for the common benefit, clearly demonstrates the
validity of the statute of the State of Connecticut here in
controversy. The sole consequence of the provision forbidding the
transportation of game killed within the state beyond the state is
to confine the use of such game to those who own it -- the people
of that state. The proposition
Page 161 U. S. 530
that the state may not forbid carrying it beyond her limits
involves, therefore, the contention that a state cannot allow its
own people the enjoyment of the benefits of the property belonging
to them in common without at the same time permitting the citizens
of other states to participate in that which they do not own. It
was said in the discussion at bar, although it be conceded that the
state has an absolute right to control and regulate the killing of
game as its judgment deems best in the interest of its people,
inasmuch as the state has here chosen to allow the people within
her borders to take game, to dispose of it, and thus cause it to
become an object of state commerce, as a resulting necessity such
property has become the subject of interstate commerce, hence
controlled by the provisions of Article I, Section 8, of the
Constitution of the United States. But the errors which this
argument involves are manifest. It presupposes that where the
killing of game and its sale within the state are allowed, it
thereby becomes "commerce" in the legal meaning of that word. In
view of the authority of the state to affix conditions to the
killing and sale of game, predicated, as is this power, on the
peculiar nature of such property and its common ownership by all
the citizens of the state, it may well be doubted whether commerce
is created by an authority given by a state to reduce game within
its borders to possession, provided such game be not taken, when
killed, without the jurisdiction of the state. The common ownership
imports the right to keep the property, if the sovereign so
chooses, always within its jurisdiction for every purpose. The
qualification which forbids its removal from the state necessarily
entered into and formed part of every transaction on the subject,
and deprived the mere sale or exchange of these articles of that
element of freedom of contract and of full ownership which is an
essential attribute of commerce. Passing, however, as we do, the
decision of this question, and granting that the dealing in game
killed within the state, under the provision in question, created
internal state commerce, it does not follow that such internal
commerce became necessarily the subject matter of interstate
commerce, and therefore under the
Page 161 U. S. 531
control of the Constitution of the United States. The
distinction between internal and external commerce and interstate
commerce is marked, and has always been recognized by this Court.
In
Gibbons v.
Ogden, 9 Wheat. 194, Mr. Chief Justice Marshall
said:
"It is not intended to say that these words comprehend that
commerce which is completely internal, which is carried on between
man and man in a state or between different parts of the same
state, and which does not extend to or affect other states. Such a
power would be inconvenient, and is certainly unnecessary."
"Comprehensive as the word 'among' is, it may very properly be
restricted to that commerce which concerns more states than one.
The phrase is not one which would probably have been selected to
indicate the completely interior traffic of a state, because it is
not an apt phrase for that purpose, and the enumeration of the
particular classes of commerce to which the power was to be
extended would not have been made had the intention been to extend
the power to every description. The enumeration presupposes
something not enumerated, and that something, if we regard the
language or the subject of the sentence, must be the exclusively
internal commerce of the state. The genius and character of the
whole government seem to be that its action is to be applied to all
the external concerns of the nation, and to those internal concerns
which affect the states generally, but not to those which are
completely within a particular state, which do not affect other
states, and with which it is not necessary to interfere, for the
purpose of executing some of the general powers of the government.
The completely internal commerce of a state, then, may be
considered as reserved for the state itself."
So, again, in
The Daniel
Ball, 10 Wall. 564, this Court, speaking through
MR. JUSTICE FIELD, said:
"There is undoubtedly an internal commerce which is subject to
the control of the states. The power delegated to Congress is
limited to commerce among the several states, with foreign nations
and with the Indian tribes. This limitation
Page 161 U. S. 532
necessarily excludes from the federal control commerce not thus
designated, and, of course, that commerce which is carried on
entirely within the limits of a state, and does not extend to or
affect other states."
The fact that internal commerce may be distinct from interstate
commerce destroys the whole theory upon which the argument of the
plaintiff in error proceeds. The power of the state to control the
killing of and ownership in game being admitted, the commerce in
game which the state law permitted was necessarily only internal
commerce, since the restriction that it should not become the
subject of external commerce went along with the grant, and was a
part of it. All ownership in game killed within the state came
under this condition, which the state had the lawful authority to
impose, and no contracts made in relation to such property were
exempt from the law of the state consenting that such contracts be
made, provided only they were confined to internal, and did not
extend to external, commerce.
The case in this respect is identical with
Kidd v.
Pearson, 128 U. S. 1. The
facts there considered were, briefly, as follows: the State of Iowa
permitted the distillation of intoxicating liquors for "mechanical,
medicinal, culinary, and sacramental purposes." The right was
asserted to send out of the state intoxicating liquors made
therein, on the ground that, when manufactured in the state, such
liquors became the subject of interstate commerce, and were thus
protected by the Constitution of the United States; but this Court,
through Mr. Justice Lamar, pointed out the vice in the reasoning,
which consisted in presupposing that the state had authorized the
manufacture of intoxicants, thereby overlooking the exceptional
purpose for which alone such manufacture was permitted. So here,
the argument of the plaintiff in error substantially asserts that
the state statute gives an unqualified right to kill game, when in
fact it is only given upon the condition that the game killed be
not transported beyond the state limits. It was upon this power of
the state to qualify and restrict the ownership in game killed
within its limits that the court below rested its conclusion, and
similar views
Page 161 U. S. 533
have been expressed by the courts of last resort of several of
the states. In
State v. Rodman, ubi supra, the Supreme
Court of Minnesota said:
"The preservation of such animals as are adapted to consumption
as food or to any other useful purpose is a matter of public
interest, and it is within the police power of the state, as the
representative of the people in their united sovereignty, to make
such laws as will best preserve such game, and secure its
beneficial use in the future to the citizens, and to that end it
may adopt any reasonable regulations not only as to time and manner
in which such game may be taken and killed, but also imposing
limitations upon the right of property in such game after it has
been reduced to possession, which limitations deprive no person of
his property, because he who takes or kills game had no previous
right to property in it, and, when he acquires such right by
reducing it to possession, he does so subject to such conditions
and limitations as the legislature has seen fit to impose."
See also State v. Northern Pacific Express Co.,
supra.
So, also, in
Magner v. People, 97 Ill. 320, 333, the
Supreme Court of Illinois said:
"So far as we are aware, it has never been judicially denied
that the government, under its police powers, may make regulations
for the preservation of game and fish, restricting their taking and
molestation to certain seasons of the year, although laws to this
effect, it is believed, have been in force in many of the older
states since the organization of the federal government. . . . The
ownership being in the people of the state, the repository of the
sovereign authority, and no individual having any property rights
to be affected, it necessarily results that the legislature, as the
representative of the people of the state, may withhold or grant to
individuals the right to hunt and kill game, or qualify or
restrict, as in the opinions of its members will best subserve the
public welfare. Stated in other language, to hunt and kill game is
a boon or privilege, granted either expressly or impliedly by the
sovereign authority, not a right inherent in each individual, and
consequently nothing is taken away from the individual when
Page 161 U. S. 534
he is denied the privilege, at stated seasons, of hunting and
killing game. It is perhaps accurate to say that the ownership of
the sovereign authority is in trust for all the people of the
state, and hence, by implication, it is the duty of the legislature
to enact such laws as will best preserve the subject of the trust
and secure its beneficial use in the future to the people of the
state. But, in any view, the question of individual enjoyment is
one of public policy, and not of private right."
See also Ex Parte Maier, 103 Cal. 476;
Organ v.
State, 56 Ark. 270. It is indeed true that, in
State v.
Saunders, 19 Kan. 127, and
Territory v. Evans, 2
Idaho 634, it was held that a state law prohibiting the shipment
outside of the state of game killed therein violated the interstate
commerce clause of the Constitution of the United States, but the
reasoning which controlled the decision of these cases is, we
think, inconclusive, from the fact that it did not consider the
fundamental distinction between the qualified ownership in game and
the perfect nature of ownership in other property, and thus
overlooked the authority of the state over property in game killed
within its confines, and the consequent power of the state to
follow such property into whatever hands it might pass, with the
conditions and restrictions deemed necessary for the public
interest.
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 conclusive. The right to preserve game flows from
the undoubted existence in the state of a police power to that end,
which may be nonetheless efficiently called into play, because, by
doing so, interstate commerce may be remotely and indirectly
affected.
Kidd v. Pearson, 128 U. S.
1;
Hall v. De Cuir, 95 U. S.
485;
Sherlock v. Alling, 93 U. S.
99,
93 U. S. 103;
Gibbons v.
Ogden, 9 Wheat. 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
Page 161 U. S. 535
Maier, ubi supra; Magner v. People, ubi supra, and
cases there cited. The exercise by the state of such power
therefore comes directly within the principle of
Plumley v.
Commonwealth, 155 U. S. 461,
155 U. S. 473.
The power of a state to protect, by adequate police regulation, its
people against the adulteration of articles of food (which was in
that case maintained), although, in doing so, commerce might be
remotely 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.
Judgment affirmed.
MR. JUSTICE FIELD, dissenting.
I am unable to agree with the majority of my associates in the
affirmance of the judgment of the Supreme Court of Errors of
Connecticut in this case, and I will state briefly the grounds of
my disagreement.
Section 2546 of the states of Connecticut, contained in the
revision of 1888, enacts that
"no person shall at any time kill any woodcock, ruffled grouse,
or quail for the purpose of conveying the same beyond the limits of
this state, or shall transport, or have in possession with intent
to procure the transportation beyond said limits, any of such birds
killed within this state,"
and it adds in substance that the reception by any person within
the state of any such bird or birds for shipment to a point without
the state shall be
prima facie evidence that the bird or
birds were killed within the state for the purpose of carrying the
same beyond its limits.
Section 2530 of the statutes provides that every person who
shall kill, destroy, or attempt to kill, any woodcock, quail,
ruffled grouse, called partridge, or gray squirrel between the
first day of January and the first day of October shall be fined in
a sum not exceeding twenty-five dollars.
The present proceeding was commenced by an information
Page 161 U. S. 536
presented by the Assistant District Attorney of the City of New
London, Connecticut against the defendant, Edgar M. Geer, in the
police court of that city, charging that he did, on the 19th of
October, 1889, unlawfully receive and have in his possession
certain woodcock, ruffled grouse, and quail killed within the state
after the first day of October, 1889, with the wrongful and
unlawful intention to procure their transportation without the
limits of the state.
Upon the information, the judge of the police court issued to
the sheriff of the county, and to his deputies, a warrant for the
arrest of the defendant, and to have him before that court to
answer the complaint. The defendant, being brought before the
court, pleaded to the complaint that he was not guilty, but, as it
is alleged, the court, having inquired into the matter, adjudged
him to be guilty, and that he pay a fine of a specified amount,
together with the costs of the prosecution, and stand committed
until the judgment be complied with. From that decision the accused
appealed to the next session of the criminal court of common pleas
to be held for New London County, on the second Tuesday of
December, 1889. At that court and term, he appeared, and demurred
to the complaint on the ground first that the matters contained
therein did not constitute an offense, second, on the ground that
it did not allege that the birds were killed for the purpose of
being conveyed beyond the limits of the state, third, on the ground
that section 2546 of the General Statutes of Connecticut, under
which the complaint was brought, was void and unconstitutional, so
far as it could be construed to forbid the transportation of the
birds killed from the state, or having possession of them with
intent to procure their transportation to another state, averring
that the birds had been sold to parties in such other state, and
had begun to move as an article of interstate commerce, fourth, on
the ground that it appeared in the complaint that the defendant was
not guilty under the section if the birds were bought by him in the
markets of the state as merchandise, and had begun to move to
another state as an article of interstate commerce, such facts
being averred in the complaint to exist.
Page 161 U. S. 537
The criminal court of common pleas overruled the demurrer, and
found that the complaint was sufficient, and, the accused having
declined to answer over, it was held that he was guilty of the
offense charged, and he was accordingly sentenced to pay a fine of
$25 and the costs of the prosecution, and to stand committed until
the judgment was complied with. The defendant thereupon appealed
from the judgment rendered by the criminal court of common pleas to
the Supreme Court of Errors of the state for the Second Judicial
District, to be held at Norwich on the last Tuesday of May, 1891.
On that day, the Supreme Court of Errors found that there was no
error apparent in the judgment of the criminal court of common
pleas, and accordingly affirmed it. An appeal was then taken from
the decision of the Supreme Court of Errors to the Supreme Court of
the United States, in which latter court the plaintiff in error
assigns the following as grounds of error in the lower court:
"1st. In refusing to hold that so much of section 2546 of the
General Statutes, under which the complaint was brought, as might
be construed to forbid the transportation from the State of the
birds described, lawfully killed, and permitted by the laws of the
state to become the subject of traffic and commerce, was
unconstitutional and void."
"2d. In refusing to hold that so much of the section as might be
construed to forbid the receiving and having in possession, with
intent to procure the transportation thereof to another state, the
birds described, lawfully killed, and permitted by the laws of the
state to become the subject of traffic and commerce, was
unconstitutional and void."
"3d. In holding that the defendant was guilty of an offense
under the section if the birds were lawfully killed in the state,
and were bought by the defendant in the market of the state as
merchandise, and had begun to move as an article of interstate
commerce."
And this Court, notwithstanding the errors assigned, affirms the
judgment of the Supreme Court of Errors of Connecticut.
The record sent to it from the Supreme Court of Errors of the
state presents the questions, supposed to be involved, in
Page 161 U. S. 538
a very confused and indistinct manner. Disentangling them from
the mass of words used, it appears that the Supreme Court of Errors
held that it was an offense against the statute upon which the
information was filed in the Police Court of New London for the
accused to have in his possession any of the birds mentioned,
killed in the state within the period designated, for the purpose
of transporting them without the state, and that it was to be
inferred under the law that the birds were killed within the state
for that purpose. But if that constitutes the offense at which the
statute aimed, the information is defective in not alleging that
the birds were killed for the purpose stated -- that is, of
conveying the beyond the limits of the state -- and thus that they
were unlawfully killed.
The transportation of birds described to another state which
were lawfully killed does not constitute an offense under the
statute. The transportation against which the statute was levied
was that of birds unlawfully killed, the evident object of the law
being to prevent birds unlawfully killed from being transported to
the markets of another state. The law was directed against the
killing of the birds within certain designated months of the year,
and, in furtherance of that law, the transportation of them to
another state was declared to be unlawful. The Supreme Court of
Errors held that it was not unconstitutional for the state to enact
that birds might be killed and sold or held for domestic
consumption only, and that, although the birds became a lawful
subject of property when killed within the state for the purpose of
food, it was competent for the state to limit their sale for that
purpose to the needs of domestic consumption. And this Court, in
affirming the judgment of the Supreme Court of Errors, appears to
sanction that doctrine; but to its soundness I cannot yield
assent.
When any animal, whether living in the waters of the state or in
the air above, is lawfully killed for the purposes of food or other
uses of man, it becomes an article of commerce, and its use cannot
be limited to the citizens of one state to the exclusion of
citizens of another state. Although
Page 161 U. S. 539
there are declarations of some courts that the state possesses a
property in its wild game, and, when it authorizes the game to be
killed and sold as an article of food, it may limit the sale only
for domestic consumption, and the Supreme Court of Errors of
Connecticut, in deciding the present case, appears to have held
that doctrine, I am unable to assent to its soundness where the
state has never had the game in its possession or under its control
or use. I do not admit that in such case there is any specific
property held by the state by which in the exercise of its rightful
authority, it can lawfully limit the control and use of the animals
killed to particular classes of persons or citizens, or to citizens
of particular places or states. But on the contrary, I hold that
where animals within a state, whether living in its waters or in
the air above, are at the time beyond the reach or control of man,
so that they cannot be subjected to his use or that of the state in
any respect, they are not the property of the state or of anyone in
a proper sense. I hold that until they are brought into subjection
or use by the labor or skill of man, they are not the property of
anyone, and that they only become the property of man according to
the extent to which they are subjected by his labor or skill to his
use and benefit. When man, by his labor or skill, brings any such
animals under his control and subject to his use, he acquires to
that extent a right of property in them, and the ownership of
others in the animals is limited by the extent and right thus
acquired. This is a generally recognized doctrine, acknowledged by
all states of Christendom. It is the doctrine of law, both natural
and positive. The Roman law, as stated in the Digest, cited in the
opinion of the majority, expresses it as follows: "That which
belongs to nobody is acquired by the natural law by the person who
first possesses it." A bird may fly at such height as to be beyond
the reach of man or his skill, and no one can then assert any right
of property in such bird; it cannot, then, be said to belong to
anyone. But when, from any cause, the bird is brought within the
reach and control or use of man, it becomes at that instant his
property, and may be an article of commerce between him and
citizens of the same or of other states.
Page 161 U. S. 540
In an opinion written by me some years since, I had occasion to
speak of this rule of law. I there said that it was a general
principle of law, both natural and positive, that where a subject,
animate or inanimate, which otherwise could not be brought under
the control or use of man is reduced to such control or use by his
individual labor or skill, a right of property in it is acquired.
The wild bird in the air belongs to no one, but when the fowler
brings it to the earth and takes it into his possession, it is his
property. He has reduced it to his control by his own labor, and
the law of nature and the law of society recognize his exclusive
right to it. The pearl at the bottom of the sea belongs to no one,
but the diver who enters the water and brings it to light has
property in the gem. He has by his own labor reduced it to
possession, and, in all communities and by all law, his right to it
is recognized. So the trapper on the plains and the hunter in the
North have a property in the furs they have gathered, though the
animals from which they were taken roamed at large and belonged to
no one. They have added by their labor to the uses of man an
article promoting his comfort, which, without that labor, would
have been lost to him. They have a right, therefore, to the furs,
and every court in Christendom would maintain it. So, when the
fisherman drags by his net fish from the sea, he has a property in
them of which no one is permitted to despoil him.
Spring Valley
Waterworks v. Schottler, 110 U. S.
374.
In
State v. Saunders, 19 Kan. 127, the defendant was
charged, as the agent of the Adams Express Company, with receiving
at Columbus, Kansas, "certain prairie chickens, which had been
recently killed as game," and shipping them to the City of Chicago,
in the State of Illinois. The statute under which he was prosecuted
made it unlawful for any person to transport or to ship any animals
or birds mentioned, among which were prairie chickens, out of the
State of Kansas, and subjected him, on conviction thereof, to a
fine of not less than ten nor more than fifty dollars. The
defendant admitted the facts as alleged, but contended that such
acts constituted no offense, claiming that the statute of the
state
Page 161 U. S. 541
under which the proceedings against him were commenced was
unconstitutional and void. The district court held the statute
valid and found the defendant guilty, and sentenced him to pay a
fine of ten dollars and costs of prosecution. From the conviction
and sentence he appealed to the Supreme Court of Kansas, which
reversed the judgment of the district court, holding
"that no state can pass a law (whether Congress has already
acted upon the subject or not) which will directly interfere with
the free transportation from one state to another, or through a
state, of anything which is or may be a subject of interstate
commerce,"
and referred to the case of
Welton v. Missouri,
91 U. S. 275,
91 U. S. 282,
where it was held by this Court that
"the fact that Congress has not seen fit to prescribe any
specific rules to govern interstate commerce does not affect the
question. Its inaction on this subject, when considered with
reference to its legislation with respect to foreign commerce, is
equivalent to a declaration that interstate commerce shall be free
and untrammeled."
I do not doubt the right of the state, by its legislation, to
provide for the protection of wild game so far as such protection
is necessary for their preservation or for the comfort, health, or
security of its citizens and does not contravene the power of
Congress in the regulation of interstate commerce. But I do deny
the authority of the state, in its legislation for the protection
and preservation of game, to interfere in any respect with the
paramount control of Congress in prescribing the terms by which its
transportation to another state, when killed, shall be restricted
to such conditions as the state may impose. The absolute control of
Congress in the regulation of interstate commerce, unimpeded by any
state authority, is of much greater consequence that any regulation
the state may prescribe with reference to the place where its wild
game, when killed, may be consumed.
When property like the game birds in this case is reduced to
possession, it becomes an article of commerce, and may be the
subject of sale to the citizens of one state or community, or to
the citizens of several. The decision of the Court, however, would
limit the right of sale of such property, however
Page 161 U. S. 542
valuable it may become and whether living or killed, to the
directions of the state or community in which the property is
found, and would convert it from the freedom of use which belongs
to property in general to the limited use of the persons or
communities where found, or to a particular class to which only
property possessed of special ingredients or qualities is limited.
I do not think that it lies within the province of any state to
confine the excellencies of any articles of food within its borders
to its own fortunate inhabitants to the exclusion of others, and
that it may lawfully require that game killed within its borders
shall only be eaten in such parts of the country as it may
prescribe.
By the Constitution of the United States, it has been adjudged
that commerce between the states is under the absolute regulation
of Congress, and that, whenever an article of property begins to
move from one state to another, commerce between the states has
commenced, and that with its control or regulation no state can
interfere.
Welton v. Missouri, 91 U. S.
275;
Henderson v. New York, 92 U. S.
259;
Chy Lung v. Freeman, 92 U. S.
275;
Ward v.
Maryland, 12 Wall. 418;
State Tax
on Railway Gross Receipts, 15 Wall. 284;
Sherlock v. Alling, 93 U. S. 99.
I therefore dissent from the conclusion of the majority of my
associates in affirming the judgment of the Supreme Court of Errors
of Connecticut.
MR. JUSTICE HARLAN, dissenting.
The statutes of Connecticut declare that:
"Every person who shall buy, sell, expose for sale, or have in
his possession for the purpose, or who shall hunt, pursue, kill,
destroy or attempt to kill any woodcock, quail, ruffled grouse,
called partridge, or gray squirrel between the first day of January
and the first day of October, the killing or having in possession
of each bird or squirrel to be deemed a separate offense, . . .
shall be fined not more than $30."
They also provide that:
"No person shall at any time kill any woodcock, ruffled grouse
or quail for the purpose of conveying the same beyond the limits of
the state, or shall transport or have in his possession,
Page 161 U. S. 543
with intention to procure the transportation beyond said limits,
any such birds killed within this state. The reception by any
person within this state of any such bird or birds for shipment to
a point without the state shall be
prima facie evidence
that said bird or birds were killed within the state for the
purpose of carrying the same beyond its limits."
The plaintiff in error was not charged with having in his
possession game that had been killed "for the purpose of conveying
the same beyond the limits of the state." It is admitted that the
game in question was lawfully killed -- that is, was killed during
what is called the "open season." But the charge was that the
defendant unlawfully received and had in his possession, with the
wrongful and unlawful intent to procure the transportation of the
same beyond the limits of the state, certain woodcock, ruffled
grouse, and quail killed within the state after the first day of
October.
I do not question the power of the state to prescribe a period
during which wild game within its limits may not be lawfully
killed. The state, as we have seen, does not prohibit the killing
of game altogether, but permits hunting and killing of woodcock,
quail, ruffled grouse, and gray squirrels between the first day of
October and the first day of January. The game in question having
been lawfully killed, the person who killed it and took it into his
possession became the rightful owner thereof. This, I take it, will
not be questioned. As such owner, he could dispose of it by gift or
sale at his discretion. So long as it was fit for use as food, the
state could not interfere with his disposition of it any more than
it could interfere with the disposition by the owner of other
personal property that was not noxious in its character. To hold
that the person receiving personal property from the owner may not
receive it with the intent to send it out of the state is to
recognize an arbitrary power in the government which is
inconsistent with the liberty belonging to every man, as well as
with the rights which inhere in the ownership of property. Such a
holding would also be inconsistent with the freedom of interstate
commerce which has been established by the Constitution of the
United States. If the
Page 161 U. S. 544
majority had not held differently in the present case, I should
have said that discussion was unnecessary to show the soundness of
the propositions just stated. But it seems that if the citizen,
whether residing in Connecticut or elsewhere, finds in the markets
of one of the cities or towns of that state game, fit for food,
that has been lawfully killed, and is lawfully in the possession of
the keeper of such market, he may, without becoming a criminal, buy
such game and take it into his possession, provided his intention
be to eat it, or to have it eaten, in Connecticut. But he will
subject himself to a fine, as well as to imprisonment upon his
failing to pay such fine, if he buy and take possession of such
lawfully killed game with intent to send it to a friend in an
adjoining state.
The court cites
McCready v. Virginia, 94 U.
S. 395, in which it was held that Virginia could
restrict to its own citizens the privilege of planting oysters in
the streams of that state, the soil under which was owned by it.
But I cannot believe that it would hold that oysters which had been
lawfully taken out of such streams, and which had been lawfully
planted, could not be purchased in Virginia with the intent to ship
them to another state. This Court, in
Plumley v.
Massachusetts, 155 U. S. 461 --
another of the cases cited by the majority -- sustained as valid a
statute of Massachusetts enacted to prevent deception in the
manufacture and sale in that state of imitation butter, and which
prohibited the sale of oleomargarine artificially colored so as to
cause it to look like genuine yellow butter. But I cannot suppose
that this Court will ever hold that a state could make it a crime
to purchase, with the intent to send it to another state,
oleomargarine or genuine yellow butter that had been lawfully
manufactured within its limits.
Believing that the statute of Connecticut, in its application to
the present case, is not consistent with the liberty of the citizen
or with the freedom of interstate commerce, I dissent from the
opinion and judgment of the Court.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM, not having heard the
argument, took no part in the decision of this cause.