The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1896-03-06

CoNulCt with the commerce CLAUSE VI
the Federal constitution, The supreme
court of errors in Connecticut, before
which the question was argued in 1891,
declined to adopt this view and upheld
the validity of the state law, The opin-
ion of the court was written by Judge
Edward w. Seymour. who declared
that the game to which the statute re-
felred was not an article of commerce
within the meaning of the constitution,
and stated the argument in favor of the
power of the state to prevent the export
of such property in this way:
ut being conceded that the state, I'M
der its general police power, may law
fully prohibit the killing Of the game
birds in question, it may, of course, con-
troll such killing and the times and pur-
poses thereof. 1t may lawfully enact
that they may be killed and sold and
held for sale only for domestic con-
sumption. The state, in the exercise OF
It's power instead of prohibiting the
killing altogether, permits the person
killing them to acquire only qualified
right in them namely. the right to APP
propriate them to his own use, and the
right to sell or transport them for do
nestle use. They become
private property of a qualified charac-
ter. The law limits the purposes for
which they may be killed and become
private property. The difference be-
tween private property OF this sort and
! the ordinary private property of COM
| merce is obvious"
| These conclusions have now been ap-
proved by the supreme court of the
United States in an opinion written by
Justice White of Louisiana. There is q
| dissenting opinion, in which Justices
| Harlan and Brewer concur to the effect
| that game should be regarded as prop
erly a subject Of interstate commerce,
and hence the Connecticut legislature
had no power to enact the prohibitory
| statute forbiddinG its export to other
| states.
1t is not surprising that Justice Brew
er was one Of the dissenting judges. In
1877 he was a member of the supreme
court of Kansas, when the tribunal
was called upon to determine the valid
| ity OF an act of the Kansas legislature
very similar to the Connecticut law
considered in the Geer case. 1t forbade
the transportation to other states of
prairie chickens caught or killed in
| Kansas. The supreme court of that
state held that this prohibition was I'M
| constitutional, because mo state could
pass a law which would directly inter
fere with the transportation therefronI
to another state of anything which is
on may be a subject of Interstate COM
merce. A law which prohibited the
killing and catching of prairie chickens
might be valid the court declared, al
though the indirect effect of such law
would be to prevent the export of prai-
RE chickens to other states; but Law
which allowed these birds to be killed
and thus to become subjects of traffic
and commerce, and at the same time
directly forbade their transportation
to any other part of the union
was pronounced void under the fed
eral constitution.
This Kansas decision was referred t
in the Connecticut case by Judge Sey.
mour as follows:
THE apparent assumption of TIL,
Kansas court that game which the law
allows to be caught and killed thereby
necessarily becomes the subject of traf
fic and commerce, meaning Interstate
commerce, appears 10 US uIlSouHu.
This observation is not argument o
reasoning, and is equivalent to saying
We think it is so, because we think /
so" The fact is, there is a good dea
to be said on both sides of the ques
ton, and 1t is not strange that the jus
tees of the supreme court at Washing
ton did not agree. The result, which
sustains the right of a state to proven
the expectation of game, will greatly ia
cilitate the preservation of game in tn
several states: but we must say tina
! the proposition that game is not an ar
ticle of commerce within the meaning o
the constitution seems to us very doubt
, full as matter of law. How would it b
, in regard to oysters? A state can pro
) hibit the taking of oysters from 1t
public waters, but if it allows them t
be taken, can it prevent them from be
ing shipped to Chicago or Europe?-
l New York Sun.