#### The People of the State of New York, Respondent, *v.*John B. Martin and Lewis Martin, Appellants.

First Department,

January 10, 1908.

Forest, Fish, and Game Law — possession of grouse more than One month after close season—verdipt for penalty directed — intention to place birds in cold storage no defense.

Although section 28 of the Forest, Fish and Game Law provides that quail, grouse and plover shall not be sold or possessed during the close season (which by virtue of other sections of the act begins on December first), “except in the month of December, and possession or sale thereof during December shall be presumptive evidence that they were unlawfully taken by the possessor,” a person found) in possession of such birds, in the afternoon of January first is liable for the penalty provided, and it is proper to direct a verdict against him.

This is true although the birds were imported, for the Legislature in the exercise of its police power may make the possession of imported game unlawful during the close season.

A defendant so found in possession of grouse, quail and plover after January first cannot escape liability by testifying that he intended to return the game to the dealer from whom he bought it, in order that the latter might put it in cold storage under bond during the close season as permitted by section 141 of the Forest, Fish and Game Law.

An intention to have somebody else comply with the provision of said section is ■ not sufficient, but the person who claims the benefit of the exception contained therein is under the burden of showing that he comes within its provisions.

Appeal by the defendants, John B. Martin and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1907, upon the verdict of a jury for $4,285, rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 14th day of June, 1907, denying the defendants’ motion for a new trial made upon' the minutes.

*John Burlinson Coleman*of counsel *[Finch & Coleman,*attorneys], for the appellants.

*Robert C. Beatty*of counsel [*John K. Ward,*attorney], for the respondent.

*336Clarke, J.:

This is an action for penalties for violation of section 28 of the Forest, Fish and Game Law of the State (Laws of 1900, chap. 20, as amd. by Laws of 1902, chap. 317) and section 30 of said law (as amd. by Laws of 1904, chap: 588), in unlawfully possessing certain quail, grouse and plover in the period when such possession is prohibited. At about two-fifty p. m. on January 1, 1907, two game protectors found in the possession of the defendant John B. Martin, at the Café Martin in the city of Mew York, forty-five grouse, eight plover, one hundred and two quail and fourteen partridges. All of the. birds were picked. Some of them were in the preparing room near the kitchen fire where the cooking was done, and the rest were in the ice box. There is nó controversy about the possession or the number of birds, or the amount of the judgment, provided that the direction of tlie verdict was proper.

Section 22 of the Forest, Fish and Game Law, as amended by chapter 578 of the Laws of 1904, provides that the close season for quail shall be from December first to October thirty-first, both inclusive. The close season for plover is from January'first to August fifteenth, both inclusive (id. § 30, as amd. by Laws of 1904, chap. 588). The 'close season for grouse is from December first to September fifteenth, both inclusive (id. § 25, as amd. by Laws of 1902, chap. 317).

Section 28 *(supra)*provides as follows: “Woodcock, grouse, and quail, not to be possessed.— Woodcock, grouse and quail shall not be sold or possessed .during the close season, except in the month of,December, and possession or sale thereof during December shall be presuinptive evidence that they were unlawfully taken by the possessor.” Section 30 *(supra)*provides: “ * * * Blover shall not be taken or possessed from January first to August fifteénth, both inclusive.” Section 39 of the Forest, Fish and Game Law (as amd. by Laws of 1905, chap. 318), in article 2, entitled “ Birds,” provides that “ A person who violates any provision of this article is guilty of a misdemeanor and is liable to a penalty of sixty dollars and to an additional penalty of twenty-five dollars for each bird * * * taken [or] possessed * * * • in violation thereof.”

It will thus be seen that the close season for quail and grouse began on the first day of December, after' which it was unlawful to take such game birds. The Legislature, however, allowed one *337month in which such birds lawfully taken during the open season could be disposed of, but provided that possession or sale thereof during December should be presumptive evidence that they were unlawfully taken by the possessor. These birds were found in the possession of the defendant on the afternoon of January first, in the preparing room of the kitchen of his café after the expiration of the month allowed for the sale or disposition thereof.

In *Geer*v. *Connecticut*(161 U. S. 519) it was held that there is no property in game other than that which the State permits. The taking of it may be absolutely prohibited or traffic and commerce in it may be absolutely prohibited. It is proper exercise of the police power and within the discretion of the Legislature.

The forty-five birds designated as black grouse were imported. In *People*v. *Bootman*(180 N. Y. 1) it was held that the Legislature, in the exercise of the police power, has power to make the possession of imported game unlawful, and that the method of affording protection to game is necessarily within the discretion of the Legislature; that laws passed for this purpose do not interfere with private property, for there is no property in ■ living wild animals and only as the laws permit their capture is there property in wild animals after they are caught or killed; that the Legislature may provide a close season for the taking of game, and may prohibit the possession or sale of game during that season.

In *People ex rel. Hill*v. *Hesterberg*(184 N. Y. 126) it was held that by virtue of the act of Congress, passed May 25, 1900,* the so-called Lacey Act, that Congress practically said to the citizens : We do not prohibit the importation of foreign game, but subject it to -the local laws, and you must see to it at your risk that you do not violate these laws. Further, that the provisions of the Forest, Fish and Game Law, prohibiting the possession of game coming from without the State during the close season, is not unconstitutional as a deprivation of property without due process of law, and is a proper exercise of the police power of the State.

The appellants seek to extend the period of one month allowed for the possession and sale of these game birds after the expiration of the close season under section. 141 of the Forest, Fish and *338Game Law (added by Laws of 1902, chap. 194), “ *' ' * * Provided, nevertheless, that if there be any open season therefor, any dealer therein, if he has given the bond herein provided for, may hold during the close season such part of his stock as he has on hand undisposed of at the opening of such close season. * * * But no presumption that the possession of . fish or game or the flesh of any animal, bird or fish is lawfully possessed under the provisions of this section shall arise until it affirmatively appears, that the provisions thereof have been complied with.”

The defendant testified that on the afternoon when the birds were seized he said to the wardens : “All right, those, game go back to-morrow to Mr. Silz, * * * where I bought the game.” The argument of the appellant is in brief that because after the discovery of the game the defendant said-that it was his intention ón the next day to send them back to the wholesale dealer from whom he had bought them, in order that that wholesale dealer, upon giving the bond required by law, might put them in cold storage for preservation until the next season should opón and lie Could lawfully sell them,) therefore, defendant’s mental intention to. send the.game to another man in order that that man might comply with the bonding provision of the law, made defendant’s possession lawful and the judgment error. But the section relied upon, expressly provides that “No presumption that the possession of * * * game * * * is lawfully possessed tinder the provisions of this section .shall arise until it affirmatively appears that the provisions thereof have been complied with.”

Not an intention that somebody else may hereafter, comply with said provisions, but that it- affirmatively appears that the provisions" have been complied with. When a person claims the benefit of an exception the burden is put upon him to show that he comes within its provisions.

In the face of the positive provisions of the various.sections of the Forest, Fish and Game Law, the contention of the appellants cannot be sustained. If an intention to do an act is equivalent to the doing, of it, and sufficient to nullify the express provisions that no presumption shall arise until it affirmatively appears that the. provisions of the act have been complied with, no penalties can ever be inflicted. Intent is not made a part of the statute. Mere possession is enough. *339To allow a mental process to be substituted for the positive requirement of the statute would be to emasculate the necessarily drastic provisions thereof. If the court is to legislate, for how long a period should it extend by mental process of the offender, the period during which it is lawful to possess game ? The law has allowed a reasonable time to get rid of game lawfully killed, to wit, one month, and in the interest of dealers has permitted the bonding and preservation of said game in cold storage thereafter. But so carefully has the Legislature guarded against the violation of the statutes which they have deemed necessary for the preservation of our wild animals, fish and birds, that even the allowance of possession during the month of December is coupled with the requirement that the presumption is that the birds so possessed were unlawfully' taken and at the end of such month it has provided that' the privilege to. hold in cold storage and under bond depends upon affirmative proof that the necessary bond has been given. To weaken by judicial construction those carefully considered and appropriate provisions of the statute would be to invite violations of this salutary' law. We are to-interpret the laws, not make them.

It, therefore, follows that the judgment and order appealed from should be affirmed, with costs to the respondent.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Judgment and order affirmed, with costs.

*

See 31 U. S. Stat. at Large, 187, chap. 553.—[Rep.