The times. [volume] (Richmond, Va.) 1890-1903, 1897-10-24
1T Is CONSTITUTIONAL.
THE PRESENT LE0TsLATTON Pro
NETTING KILLING or GAME.
Particularly In the Aspect Of Prohibiting
the Killing by the Owner Of the Land
ofBirds Found Thereon.
Editor Of Tho Times:

constitutional validity OF the present leg
jslation OF Virginia, regulating or prohiD-
iting the Milling Of game and especially OF
partridges by special statutes. and by a
general statute upon the subject, parti-
cuiarly In the aspect OF prohibiting the
killing by the owner OF the land OF BIRDS
reared or found thereon, and one onthu-
siastic young gentleman by way Of be-
quilting an opinion favorable 10 his wish
cs has piayfully offered 10 enter upon ms
fields with his gun and settlers, and divide
with me the trophies OF his skin, u 1
would undertake 10 defend the ad-
Venturcr in tho court. am not en-
tirely adverse 20 contingent ices il
there be a reasonable prospect OF success
and the percentage Of recovery be reason
ably large. But in this case must thlnk
there Is neither though not doubling the
skill OF the sportsman inc SUBJECT
however. is OF great and permanent pup
lie importance and OF present pubic IN
terest, as the hunting season has arrived
and a diversity OF legal opinion IS I'M
derstood TO have been expressed by Of
flcers OF the government as TO the vail
dity OF the legislation in question, and
many citizens are I'm doubt as 10 their
rights and duty I'm the matter.
/ have not seen the opinion Of the Hon.
Judge Homes. Of the County Court OF
Mecklenburg. but ! understand that II IS
against the constitutionality of the legis-
latioD II IL be construed as applying 10
the act Of an owner Of land killing par
tridges thereon. Nor have ] sec then re-
puted conflicting opinion OF Mr. Attorney
General Carter Scott but must acknowl-
edge my surprise that at this late DAY
there could be n diversity Of opinion on
the question. Legislation. general and
special, regulating or prohibiting the Kill
ing or capture Of game Of all kinds has
been upon the statute books Of many OF
the States from the foundation OF the
Federal government. and so far as the
constitutional power Of the several states
TO enact such laws is concerned II is be
lieved that no reported case can be found
in which that power has been successfully
controverted. while on the contrary there
Is an unbroken uniformity in the decision
OF the highest courts sustaining the va
ldity OF that course OF legislation
1t has been universally regarded as
legitimate exercise Of the great fixible
power of government known as the police
power underlined and indehnable. but OF
accommodating elasticity covering every
object within the scope Of social
life and the beneficial use OF
property, b. whomsoever claimed or
owned. In Tiedman's Limitations OF Po-
lice Power p. 4i0. that standard author
speaking Of the right to hunt game will
say:
cit is a very common police regulation
TO be found In every State, 10 prohibit the
hunting and killing Of birds and other
wild animals in certain seasons Of the
year. the object Of the regulation being
the preservation Of these animals from
complete determination by providing for
them a period Of rest and safety in which
they may promote and rear their young.
The animals are those which are adopted
60 consumption as food. and their pre-
seryation is a matter Of public interest.
The constitutionality of such legislation
cannot be questioned.
In no state has such legislation been
more frequent than in the state of Nir-
ginia. Chapter KICK. OF the Code of 1887
Is full Of provisions for the prevention
of the killing during certain periods OF
The year. and within certain sections OF
the state. of various kinds Of game, in
,A:.saing deer. partridges lori quails) wild
Sfirkeys, wOodcock. hooking birds, brown
thrush wood robin, &c, and numerous
acts Of assembly have since been passed
for the same purpose.
In fact, no less than twenty-five such
ACES were passed in the session of 1896.
Among such acts was that Of February
10 1894. entitled AN act for the protection
OF game in the counties OF Charlotte and
Mecklenburg." and prohibiting the cap
ture of partridges and wild turkeys dur
ing a certain period OF the year: amended
as to wild turkeys. by an act Of 1896. And
also among those acts was the general act
OF January q. 1896, entitled IAN act to
prevent the determination Of partridges
Cor quaiD In the State of Virginia" and
which provided that II shall be unlawful
for any person 10 kill or capture any
particle or quail i'm the state Of Virginia
for the period of two years. or TO offer
for sale or buy any partridges Cor quaiD
so unlawfully killed or captured in said
State within the aforesaid period" 1t is
the validity of this general act which is
now an question, as well as that Of the
special act in reference to particular
counties / cannot recall that the Court
OF Appeals Of Virginia has ever directly
passed upon the validity OF such legisla-
tion In respect 10 game Of the character
embraced In these acts. but I'm McCreary's
case. p Graf. 9Sj it did pass upon the
constitutlonality Of an act for the pro-
lection Of oysters within the tidewaters
OF the state. which involved the same
principle. and the act was sustained by
the court. and the decision was affirmed
by tho Supreme Court of the United
States, in McCreary VS. Virginia "a L.
s. 395
The learning upon the general subject IS
large, and orudte. and extends to gov
ernmental action Tor centuries in all
civilized countries, and there are nu-
merous favorable adiudications I'm this
country upon just such such legislation as
that now under review. But ii will sur
hce TO cite a few decisions of recognized
authority. I'm explanation and illustration
OF tho principles thus involved and os-
tablIshed. And IL will be seen that IL
matters not by whom the land Is owned
on which the game is intended to be pro-
tected or that the game Is found on any
land at all, and thus that the protection
extends as well 20 all wild game, as to
what might not be inapproprately termed
domestic game; In other words, IL extends
20 all game' on earth. I'm sky. or I'm the
waters under the jurisdiction of the State.
In Phelps VS. Racy. 90 ~ Y, IA. the
Court Of Appeals Of New York we'll said
THE Legislature may pass many laws
the enect Of which may be 10 impair or
even destroy the right OF property Pri-
waite interests must yield &C. tbs nubnc
advantage. Al legislative powers, not
restrained by express or implied provi-
sions OF the Constitution. may be cxer-
cised. The protection and preservation
OF game has been secured by law in all
civilized un'-aes and may be justified on
many grounds, one OF which is for pur-
poses OF food. Tho measures best adapt
ed 70 this end are for the Legislature 10
determine. and courts cannot review its
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