State v. Northern Pacific Express Co., Nos. 8926, 8927

Nos. 8926, 8927 | Minn. | Jul 25, 1894

Collins, J.

The defendant was twice indicted for violations of Laws 1891, ch. 9, as amended by Laws 1893, ch. 124; one indictment being- under section 17, for having in its possession during the open season fish which had been caught in an unlawful manner in this state during such open season, and the other under section 22, for having in its possession fish lawfully caught in this state, but not of the species excepted from the operation of the section, with the intent to ship the same out of the state.

The trial court, having overruled demurrers to the indictments, certified to this court the following questions as having been raised by defendant, and determined.by it, namely:

(1) Is Laws 1893, ch. 124, unconstitutional and void.

(2) Had the legislature the power to prohibit, during the open season, the receiving by a common carrier, for the purpose of transportation, of fish which have been illegally caught within the state;

(3) Is the act void by reason of the excessive fines imposed by it.

The first, and third have been fully considered and disposed of in State v. Rodman and State v. Cobb, ante, p. 393, (59 N.W. 1098" court="Minn." date_filed="1894-07-25" href="https://app.midpage.ai/document/state-v-rodman-7968532?utm_source=webapp" opinion_id="7968532">59 N. W. 1098).

On the second question the defendant’s contention is that the provisions of the act prohibiting the shipment out of the state of fish caught within the state unlawfully interferes with interstate commerce. The complete answer to this is that the fish had never becomes articles of commerce, within the meaning contended for by defendant’s counsel. Under the laws of the state they had, it is true, become private property, but of a qualified and limited character; one of the attached limitations being that they should not be shipped out of the state, — that is, should not become the subject of interstate commerce. The purpose of such a provision as a means of preventing a rapid and undue depletion of certain kinds of game has already been adverted to in the state cases just mentioned. Similar provisions are very commonly found in laws for the preservation of game, and have been generally upheld as valid. Organ v. State, 56 Ark. 270, (19 S.W. 840" court="Ark." date_filed="1892-05-28" href="https://app.midpage.ai/document/organ-v-state-6542968?utm_source=webapp" opinion_id="6542968">19 S. W. 840;) State v. Geer, 61 Conn. 144, (22 Atl. 1012.) It must be remembered that defendant is not charged with having in possession fish caught and killed in another state, but in this.

Defendant’s counsel have argued some questions which have not been certified up by the trial court, the most serious thereof being that in the first indictment it is not alleged that defendant knew that the fish had been caught in an unlawful manner. But under the rule laid down in State v. Byrud, 23 Minn. 30, and repeatedly followed, we can only consider such questions as it appears from the certification were raised and passed on in the court below.

Orders affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 ÍT. W, 1100.)