New-York tribune., 1901-08-12
UNCERTAIN GAME LAWS.
is IT UNLAWFUL TO BE POSSESSED"
OF FISH AND BIRDS IN THE
CLOSED SEASON?

OF FISH AND BIRDS IN THE
CLOSED SEASON?
Sportsmen, and especially fishermen, in this
State Will be greatly interested in a recent de-
csion of the United States Circuit Court in the
Oregon district determining that State statute
was not unconstitutional which made it unlaw-
full and imposed a penalty for possessing" GER
tain game birds and fish in the closed season.
Notwithstanding they were brought from an
other State. where II lawful to kill them
The unsatisfactory condition of the law on the
same subject in this State at the present time
makes the decision Of United States court OF
peculiar interest This is particularly so from
the fact that the question is one Of the construc-
ton of the United states Constitution, and the
final arbter in the controversy will therefore be
the United States Supreme Court
Nearly every State in the Union has passed
more or less stringent laws to prevent the killing
Of game birds and fish during the breeding sea-
son. and very many Of them for the purpose OF
making these laws more effective have enacted
that the possession OF such birds or fish in the
closed season is in violation OF the law. This
appeared to the various legislatures to be neces-
sary apparently. from the facility with which
punishment could be escaped by the defendant
in a prosecution for violation OF the law show
ing that he killed the game in another State.
and only brought IT within the State where the
prosecution was started after the game was
dead.
THE NETWORK LAW.
The New-York legislature as early as 1871
passed a statute 10 meet that exact evil and the
Court Of Appeals In 1875 decided that the stat
ute was constitutional and valid. That decision
was made in the case OF Phelps agt. Racey.
60 New-York Reports. page 10. The defendant
was prosecuted for having and exposing for sale
quail and pinnated grouse He contended that
the birds killed in Minnesota and Illinois.
where the killing at the time was legal. and that
the New York statute was unconstitutional as a
restraint upon interstate commerce. The court
in an opinion written by Chief Judge Church
and concurred in by the entire court. disposed OF
this contention by declaring that The objection
of a want of power in the Legislature to pass the
act Is not tenable It is not in conflict with the
State constitution. II is also urged that
the statute in question violates that provision Of
the constitution of the United States which au-
thorizes Congress TO regulate commerce among
the States"
The court then cited a number OF cases in the
United States Supreme Court and pointed out
that Congress up to that time had passed no act
the subject Of the transportation OF game be-
tween States and added: 1T is quite evident
within the principles which have been repeat
edly reiterated by the Supreme Court OF the
United States that the act in question does not
violate the constitution Of the United States nor
any law Of Congress"
The case just referred TO has been cited many
times by the Of last resort in other States
and has been considered correct statement of
the law until recently. Among the cases else
where in which the Phelps case was cited and
followed or approved were the following: Mag
ner agt. the People. 81 Illinois Reports, 800;
Commonwealth agt Savage. 155 Massachusetts
Reports. 2TS; State agt. Rodman. ~ Minnesota
Reports. 393 Roth agt State. Ohio c. C. Re-
ports 62.
In England a similar law was upheld on the
ground, stated by Chief Justice Coleridge
that the object is 10 prevent British wild fowl
from being improperly killed and sold under
pretence Of their being imported from abroad"
CHANGED BY THE COURT OF APPEALS.
This appears TO have been the settled law until
the New-York Court of Appeals in the case of
the People agt. the Buffalo Fish Company
l64 NewYork Reports 93. by divided court
appears to have changed it in this State, but
has left ii in a somewhat unsatisfactory condi-
tion. for the reason that while the actual decision
was reached by bare majority of four. only
three judges concurred in the entire prevailing
opinion. The opinion OF the court written
by Judge O'Brien, and Chief Judge Parker and
Judge LandOn concurred fully. Judge Werner
concurred only in part of the opinion. but fully
in the result. Judge Gray wrote a strong dis
senting opinion and Judges Haght and Martin
concurred with him. In this case the prosecu-
tion for having in possession and exposing
for sale brook trout in the closed season. The
defence, which was held valid. was that the FISH
were imported from Canada, where ii was lawful
TO kill them. The majority OF the court holds
that the words catch kill or be possessed" as
found in the statute applied to fish or game
killed within the state far as the word pos
sessed" is concerned Two OF the judges who
concurred in this opinion also apparently agree
with Judge OBrien in his further reasoning
that If the statute means that it is unlawful to
bring within the State and be possessed therein
OF nsh and game lawfully killed without the
State, then it is unconstitutional as being in
restraint of interstate commerce. Three OF the
judges as already mentioned dissent from this
view and if the legislature should pass a
act in which the words possessed should be de-
fined so there could be bubble about 1t. the
decision OF the Court of Appeals would not have
declared It in advance TO be unconstitutional
MUST BE SETTLED BY HIGHEST COURT
AS the question only finally be determined
by the United States Supreme Court, the de-
cision of the Circuit Court already referred TO is
important, from the fact that a conclusion di-
rectly contrary TO the latest utterance of our
Court OF Appeals is there announced, and re-
cent analogous decision of the United States
Supreme Court is cited authority for the doc
trne there promulgated. The Court of Appeals
considered the same in the Federal tribunal
and decided that II not exactly In point or
controlling The Circuit Court is in re