The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1904-03-31
Judge BeIden Hands Down a Note
worthy Decision on Constitutions
atty of State Game Law.
OPINION ATTRACTS ATTENTION
Attorneys Claim That 1t is One of the Best
Opinions Ever Handed Down In the
Circuit Courts of the State.

Judge Il. h. Be1den, of the Circuit
Court, holds that the State Fish and
Game Laws are constitutional, and
q this morning he handed down an opin-
ion on the point that it is attracting
wide attention among the attorneys
of the city.
The opinion was given in denying a
motion for the discharge of Peter S.
3 Neergaard, who is on trial in the
! court on charge of shipping fish out
of the state. The attorney for Neer-
gard had asked for his discharge on
the grounds that the law under which
he was being prosecuted conficted
with the Interstate Commerce Law.
In his opinion Judge Be1den held as
follows:
It is the opinion off the court that
the reasoning of the better line of
authorities constituting similar or
analogous statutes does not support
y the defendants contention. I think
the correct doctrine in this country,
properly constituting not only the SOW
ereign powers of the state, but mod
ern public policy as we'll, is that the
ownership of wild animals and fish
free by nature, SO far as they are cap
. able Of ownership, is, as said by the
supreme court of Minnesota in State
VS.. Rodman, SO N. w. 1903, Sin the
state, not as proprietor, but in it's SOW
0 ereign capacity, as the representa-
tive, and for the benefit of all it's
people in common. The preservation
of such animals as are adapted to con-
sumption as food, or to any other use
full purpose, is matter of public in
0 terest; and it is within the police
power of the state, as the representa-
tive of the people in their united SOW
ereignty, to enact such laws as will
best preserve such game, and secure
it's beneficial use in the future to the
citizens, and to that end it may adopt
any reasonable regulations, not only
as to the time and manner in which
q such game may be taken and killed,
but also imposing limitations upon
the right of property in such game
after it has been reduced to possess
4 sion. Such limitations deprive no
person of his property, because he
who takes or kills game had no previ-
Gus right of property in it, and, when
he acquires such right by reducing it
to possession, he does so subject to
: such conditions and limitations as the
: legislature has seen fit to impose. 1t
is upon this principle that laws have
been sustained which restricted the
use of such game to the people of the
state in which it was caught or killed,
and prohibited it's being shipped out
of such state as an article of COM
merce, the reason being that to per-
y NIT game to become an article of COM
merce, even during the open season,
would stimulate the killing to an ex-
tent leading to it's total extermina-
ton. In short, the object to be at
tanned is the preservation from ex-
tinction or undue depletion of game;
and the legislature may pass any
reasonable laws to effect that end,
even to the extent of restricting the
use of, or right of property in, the
game after it is killed or taken.'
' 1t would be wholly repugnant to ali
r
to hold that the fish and game of the
, state may become as ordinary articles
! of commerce or trade. When taken
or killed they become private proper
!. ty of qualified character, and sub
: ject to such reasonable regulations
as the state may see fit to impose.
The state might prohibit entirely
a +o1y1 81 G.c1a Ill
and, indeed, does now to some extent
and in some localities. The law
! limits the purposes for which they
/. may be taken for private use. They
do not become articles of commerce
within the meaning of the interstate
commerce acts. The difference be-
tween property of this sort and the
ordinary private property, and the
ordinary and usual articles of COM
merce is obvious.
The restriction against shipping
: game and fish outside the state is
: aimed to protect and prevent the I'M
lawful taking and killing of fish and
: game and lis legitimate exercise of the
+ sovereign powers. The ownership, be-
fore they are reduced to possession,
) is in the people; when reduced to
5 possession the private ownership is
qualified, and the privilege of taking,
: killing, and transporting them may
be properly regulated by the 1egis1a-
| ture.
The supreme court of the United
: States held in Geer VS.. Connecticut,
; 161 U. S. SO, that statute prohibit
ing the transportation of wild game
beyond the limits of the state in which
it is taken or killed, is not in conflict
with the Constitution of the United
States, and is legislation which it is
, within the constitutional power of the
legislature of the State to enact.
It is the opinion of the court, there
fore, that fish and game taken under
the laws of. this state do not thereby
become private property so as to be
articles Of commerce within the
: meaning of the constitution of the