184 N.Y. 126 | NY | 1906
The relators were arrested on warrants charging them with a violation of the Game Law. They sought discharge from their arrest by writs of habeas corpus. On the return to those writs they were remanded to custody. On appeal to the Appellate Division the orders of the Special Term were reversed and the relators discharged from custody. From those orders these appeals are taken. As the affidavits on which the warrants for the arrest of the relators were issued differ materially in their statements of facts, we will first consider the one made in the Hill case. The affidavit avers that on the 3rd day of March said John Hill did have in his possession in the Clarendon Hotel, in the borough of Brooklyn, one dead body of a bird known as a golden plover, *130 and one dead body of a fowl commonly called a grouse; that, as the affiant was informed and believed, the said plover and grouse were taken without the state of New York, to wit, from England and Russia, and thence brought into the borough of Brooklyn.
The Forest, Fish and Game Law (Chap. 20, Laws 1900, amended chaps. 194 and 317, Laws 1902; chap. 588, Laws 1904), by sections 106 and 108, enacts that grouse shall not be taken or possessed from January 1st to October 31st, nor plover from January 1st to July 15th. By section 140 of said act grouse is defined to include ruffed grouse, partridge and every member of the grouse family. By section 141 the inhibition enacted by the other sections of the statute is made to apply to fish, game or flesh coming from without the state, as well as to that taken within the state. By section 119 any one violating the provisions of the statute hereinbefore recited is guilty of a misdemeanor and liable to a fine of twenty-five dollars for each bird taken or possessed in violation thereof. The relator was in possession of the birds during the prohibited period, and, hence, was guilty of a misdemeanor, unless he is relieved from the penalties prescribed by the statute by the fact that the birds were imported from foreign countries. We shall not discuss at any length the claim of the relator that the statute contravenes the Constitution of this state as depriving the relator of his property without due process of law. That question has been settled adversely to that claim by the decisions of this court inPhelps v. Racey (
That Congress can authorize an exercise of the police power by a state, which without such authority would be an unconstitutional interference with commerce, has been expressly decided by the Supreme Court of the United States in Matter ofRahrer (
The case of Silz is somewhat different. The affidavit on which the warrant in this case was issued creates a strong suspicion that the prosecution was instituted by collusion. It states not only that the defendant had in his possession the prohibited game, but also almost every fact by which the defendant's counsel hopes to relieve his client from the penalties of the law, facts which it is difficult if not impossible to see how they could have been within the affiant's knowledge. For that reason we should be inclined to refuse to entertain the cause had not the attorney-general intervened and prosecuted the appeal. Substantially all the questions raised by the affidavit, save one, are disposed of by the views we have already expressed. The exception is the statement in the affidavit "That said imported golden plover and imported grouse are different varieties of game birds from the game birds known as plover and grouse in the state of New York and from any birds native to America. They are different in from, shape, size, color and marking from the game birds known as plover and grouse in the state of New York." Of course if the birds, the possession of which is charged against the relator, are not grouse or birds of the grouse family, then no crime is stated in the affidavit and the relator should be discharged. But in view of the express allegation at the commencement of the affidavit that the defendant was possessed of one imported grouse, we are inclined to the view that the statement quoted should be construed as meaning not that the bird so possessed was not a *136 grouse, but that it was a different variety of grouse from that which is native to the state of New York. So construed this fact constitutes no defense, nor does the allegation that they are different in form, shape and color from native birds. It was for the legislature to determine, in the protection of native game, how far it was necessary or wise to include within the penal provisions of the statute birds of the same family and of a similar character, though differing in some respects. Of course, this statement is made within limits. To protect pigeons, turkeys could not be excluded. In the present case, however, we are clear that the legislature has acted within its power.
The order of the Appellate Division in each case should be reversed, that of the Special Term affirmed, and the relators remanded to custody.
GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, HISCOCK and CHASE, JJ., concur.
Order reversed, etc.