The herald., 1894-04-11
THE GAME LAWS AND THE DEER
Judge Smith Decides an I'M
pOrtant Point.
The Rights Of Butchers at Last Def
nltely Settled.
The DscisIon In the Casa Of Simon Mailer
on tho Charge OF Violating tho
Glns Laws Points
Involved.

judge Smith decided yesterday that
to sell deer meat within the limits Of
this state while the game law is in foros,
even though the deer might have been
killed in aome remote part OF the coun-
try where there was no law, is an offsnse
punishable under the statutes. The de-
cision is an important one, and is proba-
bly, the first on the point rendered in
California, for the question as TO the
rights OF butchers in this respect has
never before been aettled= In explsna-
ton OF the reasons for ruling as he does
Judge Smith has prepared the following
opinion in the case OF Simon Maier, who
was arrested on the charge Of violating
the law some month5 ago:
This is an application on the part Of
petitioner Tor hs release on habsas cor
pns the defendant having been arrest
ed upon a criminal complaint, filed in
the police court in this city, charging
him with violation OF the game laws OF
this atate.
The complaint charges that, ION the
18th dav OF December. 1898, at and 10
the city Of Los Angeles, state Of Cali.
iornia, the defendant did willfully and
unlawfully sell to one John Doe, Whose
true name ia unknown, ETC., one pound
OF deer meat, which said pound of deer
meat was then and there, by the aaid
Simon Maier, cut from the CARCASS Of an
entire deer, which said deer had been
therstofore brought by said Maier from
the state OF Texas, in which state said
deer had been lawfully killed."
The law for the preservation of game
In this state is found under section 626,
Penal Code, and that particular clause
reads as follows: "Every person In the
stste OF California, who shall at any time
cell or offer for sale the hide or meat OF
any deer shall be guilty Of a misde-
meanor."
It ia claimed on the part OF the de-
fendant that the complaint chsrgea him
with no crime; that section 626 has
reference only to deer killed within the
state OF California, and counsel urge
upon the court, with great ability, such
construction OF our statute.
And for q second contention, it is
urged with equal force that If our legis-
leture intended what the language Of
the section seems to import, then the
act 10 unconstitutional and void as be-
ing inhibited by article l, section 8,
paragraph of the Constitution of the
United States, which provides, "Con-
eress shall have power TO regulate COM
merce with foreign nations and among
the several states, etc."
As to the frat contention, that the
legislature intended the act to apply
only to deer killed within our state,
think review OF the acts, the amend
ments thereto, OF the laws for the pres.
ervation OF game III this state. must
lead to the inevitable conclusion that
the plain import Of it's language; for, SO
far as any ambiguity or uncertainty ID
concerned in the language itaelf, there
exists none, and there is no room for
construction from that view.
But, i. 10 urged, il the language OF the
act leads to an absurdity, or to the vio-
lation Of inalienable or constitutional
rights, aud such conclusions can be
avoided and the act sustained. such con.
struction should be given. Undoubted-
ly this is sound rule of construction,
and whether it should be invoked in
this case depends upon the question as
to whether the plain reading and import
of said act violates any natural or con-
stitutional right that defendant may
have.
Our first game law was passed in 1862,
and has been amended. modified aud
changed from time to time, during the
years 1854, '57, II, 80, 'S3, 'S7, '9l, and
the present act was passed in 1893. An
examination of these laws and amend
ments must convince any one that each
successive act was intended to be more
explicit and comprehensive than the
one preceding it. During q portion of
that time the law made the possession
of game in the closed season piima facie
evidence that it was killed in this state I;
again, providing that it should be un-
lawful to have possession OF game during
the closed season, and, lastly, in 1898,
making it unlawful to sell deer meat at
any time, anywhere in the state. The
last act also provides that every cold
storage company, market man, or other
person, who should have game in his
possession during the closed season is
guilty OF miedemeRnor, so that l am
satis6ed that the legislature intended to
inhibit the Gale OF deer meat through.
out the state, irrespective of the place
where the animal was Killed.
Is the act unconstitutional? MANY
cases have been cited from United States
reports, but none bearing directly on
the point; that is, am aware OF no
case where the federal courts have
passed on the game laws of the United
States.
The United States courts have held,
as in Minnesota vs. Rsrbour, United
States 3l3, that state cannot pass a
law restricting or interfering with the
free importation of beef or healthy cat
tie from one state to another; that any
law, under the pretext of inspecting cat
tie and beef, that practically prevents
such importation is in violation of the
section of the constitution quoted above,
and an unwarrantable interference with
interstate commerce; and there are sew
eral cases OF like import deciding the
same question.
But those cases must be distinguished
from the case at bar in thia: No state
can prohibit the sale of healthy beef,
mutton. grain and those common neces.
sariee Of life; it does not come within
the police powers of the state to thus
legislate. Such laws invade the drst