The times. [volume] (Richmond, Va.) 1890-1903, 1897-10-12
THE SPECIAL ZANE LAW.
NAN NAY sBOOr PARTRIDGEs On
ms OWN LAND.
The Act Protecting Birds for Two years -
Unconstitutional Because Unreaso"apie
aud Arbitrary and Therefore Void

BOYDTON. VA, oct. u.-Special-The
following opinion upon the game law Of
Virginia. was handed down by Judge
Homes. OF the County Court OF MecKieh-
burg, Friday. This action was brought
here in friendly way to test the con-
stitutonality Of the law. 1t VIII prove
interesting TO the huntsmen. and throw
some light upon this very vexatious ques-
ton:
THE DECISION.
Commonwealth of Virginia VS.. u H.
Finch.
The defendant was convicted before
Justice OF the Peace for having shot
partridge on - day Of September. 1884,
The evidence proved beyond question
that he did the act but that II Was uo,ie'
30 admitted. on his own premises. lie
snnealed and the case Is here for de-
cision. and the only question raised, Is the
act of Assembly under which he was con-
victed constitutional? II not, the act Is
null and void.
The act is as follows II. BE 1t enacted
b,. the General Assembly Of Virginia,
That il shall be unlawful for any person
10 Kill or capture any partridses Cor qualD
I'm the state Of Virginia for the period OF
two years, or TO offer for sale or buy any
partridges Cor quaiD so unlawiully killed
or captured i'm said State within the atore-
said period"
80 Any person violating this act SHAH
be deemed guilty of misdemeanor' anu
fined SO for each offence and imprisoned
in jail until the fine he paid, but not eN-
ceeding thirty days
81, fprs # "a
violation Of this act proof of the possess
sion OF any such birds shall be prinla
face evidence Of guilt"
MAY SHOOT ON HIS OWN LAND.
Ii is elementary law that the owner Oh
the soil has a qualified property IN tne
game upOn his own land, which becomes
absolutely his property. provided ne VIII
capture the same. IL is not denied thdI
the state can under the police reSui'-
tions. enact laws to preserve the game
so as 10 allow it to propagate ana TO pr
vent the killing Of game during certain
seasons of the year. so as TO give Time
for propagation. This is necessary anu
for the good Of all, but can the State
prohibit tine owner OF soil from Killing
game ON his own land altogether. say for
"A period of two years. S provided by acI
above? II IL can do so for two why not
ten or even fifty years, or take away
from the owner Of the soil the right al
together. TO XIII game, though on his
own land. I'm which he has property rights
and that without due process of law or
compensation made2
Now the United states Courts have held
that an act need not be i'm direct VIOLA
ton Of any part Of the Constitution TO be
unconstitutional. but that an act of as
semblv. which imposes an unreasonable,
unnecessary and arbitrary restraint, Is
null and void because unconstitutional.
| Such being the case. the question Is does
the act above impose an unreasonable
unnecessary. and arbitrary restraint upon
the owner IN regard 10 his own property
(See Cooley Con. Line. 9Th Edition, pages
2O5-O.
NULL AND VOID.
think II does for the reason that IL ab-
solutely prohibits a man from taking game
on his land for a period of two years, not
| yyithstanding the fact that the said period
| Is not necessary for the preservation ana
propagation Of game. because the evil
| deuce discloses the fact that partrldges
arc more abundant than they nave been
| for wears. II the act had provided mat
thew should not be killed or captured
| during certain seasons Of the year so as
/ 10 prOyido for the propagation and pre-
servation Of cartridges 7 should hold
that the act was constitutional, put' IN
| asmuch as 70 absolutely prohiblts the
| killing Of partrldges Tor period OF TWO
years. Notwithstanding the fact that tney
| are nlentiful and abundant. I hold that
| tho restraint imposed by said act. Is I'M
necessary. unreasonable and arbitrary
and. therefore. null and void.
such being my opinion. ! reverse inc
Judgment Of the Justice Of the Peace.
W. +. HOMES.
Indee County Court OF Mecklenbure
| County