*1 GEER v. CONNECTICUT.

Statement of the Case.

GEER v. CONNECTICUT. ERROR TO THE SUPREME COURT OF ERRORS OF THE STATE OF Argued

No. 87. 22, November 1895. Decided March 2, 1896. provision Connecticut, in the General Statutes of (Revision of 2516,) person any woodcock, “no any § shall at time kill ruffled grouse quail purpose or for the conveying beyond the same the limits State; transport of this or possession, shall or have intent with procure transportation beyond limits, any said of such birds killed State,” this legislation which it is within the constitutional legislature of the State to enact. The General Statutes the State of Connecticut provide (Sec. 2530, Revision 1888): who shall Every for or have person sell, sale, buy, expose in his for or shall possession any hunt, purpose, pursue, kill, or to kill destroy ruffled woodcock, attempt any quail, between, called or grouse, the first partridge, gray squirrel, and the first day January October, day killing of each bird or to be having deemed squirrel . offence, . shall be fined not more than separate dollars. ...” twenty-five

It is further by provided (Sec. the statute of the same State 2546):

“No shall at time kill person woodcock, ruffled any any for grouse the same quail purpose conveying beyond limits or shall State; transport posses- sion, with intent said procure, transportation beyond limits, of such birds killed within this any State. The recep- tion within this by any State of such bird or birds person to a without shipment the State shall point prima facie evidence that said bird or birds were killed within the State for the the same its limits.” carrying beyond

An information was filed error in against plaintiff court of New him police London, Connecticut, charging TERM, 1895. of the Case.

Statement October, 1889, the 19th day unlawfully on with, receiving wrongful in his unlawful possession, tp the limits of beyond intent procure *2 ruffled and killed woodcock, quail certain grouse State October, 1889. The the first trial of after day this State of the defendant and the conviction resulted the charge him. the a fine case was Thereupon upon the imposing the of Common to criminal court Pleas. In taken by appeal defendant demurred to information on the thé that eourt which that that the statute others, upon pros- among ground, violated the was based Constitution-of United ecution States. overruled, and defendant demurrer being declining was and condemned to over, guilty adjudged pay answer and to committed he had costs, and stand until com-

a fine An was with' judgment. prosecuted appeal plied of Errors of State. The defendant on Court Supreme errors: following the appeal assigned' “ — court erred “ In contained com- holding allegations 1st. in law. an offence constitute plaint that said In insufficient complaint 2d. holding “ that.the birds an therein mentioned allegation law without killed in this for the State were conveying the limits of this State. same beyond “ In 3d. hold so much of section 2546 of refusing under which Statutes, this is the General complaint brought, be construed to forbid the transportation this may of the birds therein described, killed and lawfully permitted the laws of the State to become the b y subject commerce, and is unconstitutional and traffic void. “ In much 4th. hold so of said section as refusing be construed forbid receiving pos- intent session, procure thereof birds therein State,, another described, lawfully per- tp the laws this State mitted become the commerce, traffic and is unconstitutional and void. “ In 5th. defendant of an offence holding guilty v.

Opinion of the Court. if such birds were killed in this under said section lawfully defendant the markets were bought by this State as articles merchandise commerce, property, had to move as article of interstate commerce. begun In 6th. for defendant.” reUdering judgment In the Court the conviction was affirmed. The Supreme case in 61 Connecticut, 144. To reported judgment affirmance of error is this writ prosecuted.

Mr. Hadlai A. Hull for in error. plaintiff Mr. Solomon Lucas in error. defendant Mr. Justice after delivered the case, stating White, of the court. opinion Connecticut, statutes of

By the State referred the statement for the season birds facts, open *3 mentioned of therein was from the first October day first of which the defendant was The birds day January. on 19th in his the charged possession unlawfully having of October, for the of unlawful beyond purpose transportation State, the killed within the were to have been State alleged after the first of killed were, October. therefore, day They the season. was no had There during open charge been of killed the for unlawfully being purpose transported outside of the the therefore, State. The was offence, charged of possession the of them for birds, game purpose transporting the beyond which birds had killed within State, been lawfully the State. held, The .court of resort the State in inter- last of the statute the afforded preting cited, light already by pre- vious of to forbid the enactments, that one was objects of within birds the State the season for killing during open the of them the and also purpose State, beyond transporting as a distinct offence to the additionally punish pos- session, for the the State, purpose transportation beyond birds killed within the The court State. found that lawfully the did information the first these offences, charge therefore that the sole offence it was lat- which covered the TERM,

Opinión of the Court. to the had it. State maké power then decided ter. for have in to possession, transpor- an offence had been the' birds lawfully tation beyond season; and statute within open during violate the interstate did not com- this offence creating' of-the United States. The- of the Constitution merce clause for review. latter ruling correctness this question the case is, words, presents In other the sole issue of the United 8, States (section under the Constitution lawful to of Connecticut allow killing I) Article to- season, a open of birds within the State during designated killed, be to be sold and to so birds, used, allow such when n to forbid their- for use within yet bought ?(cid:127) had Or, the State staté otherwise, beyond the State of Connecticut regulate killing limits, its use to the her borders so as confine ? outside of the State and forbid its transmission the State inter- In we course considering accept inquiry the court of last state statute affixed pretation a of the State. The solution involves resort question and the of the nature consideration a which the State had to exercise lawfully authority relation thereto. animals; From the earliest traditions the reduce control of nabares been feres power. law-giving The writer learned article Repertoire Journal -du Palais mentions the fact that the of Athens law P. forbade Gen. J. 5, vol. killing p. 307,) (Rep. Merlin de vol. says (Répertoire Jurisprudence, p.128) that the to- Solon, Athenians themselves seeing gave up *4 chase, of the mechanical forbade arts, neglect killing game. other were subdivisions, classified

Among things by into Roman law and common. latter embraced public owner, animals were consid- natures, which, feres ered as in common to all the citizens of State. belonging out-the After subdivision, says: pointing foregoing Digest GEER v. CONNECTICUT. 523.

Opinion of tlie Court. “ There are which we things acquire of, dominion by law which the nature, natural reason light causes man to see, others we every the civil acquire by law, tois methods which to the say, by belong As government. took; the law of nature is it ancient, more because birth' with n the human race, proper first latter. speak all the animals Thus, which can be taken the earth, upon in the or in the sea, that is to wild air, say, animals, belong those who take them. . . Because that which'belongs the natural law nobody acquired by first person do ¥e not possesses.it. distinguish these acquisition wild beasts and birds one has them by whether on captured his own or on the property another; but he who' property wishes to enter*into the of another to hunt can be property if the owner readily knows his prevented to do so.” Book 1, Tit. De Digest, 41, Rer. Dom. Adquir. restriction,

No it would hence seem, was the Ro- placed by man law individual reduce upon which he was owner in common with other citizens, pos- session, the Institutes of Justinian although recognized of an owner of land to'forbid another’ right from killing game on his was property, right as-indeed admitted impliedly cited. Digest Book passage just Institutes, 2, Tit. s. 12.

This inhibition rather a was, however, recognition in land than an right the State of exercise by its undoubted to control the and use of authority taking to no one but was common to belonged particular, (cid:127) all. In the feudal as well as the ancient law of the conti- nent of in all Europe, countries, ani- right acquire mals naturae was by possession recognized being ferm and under its governmental authority power, as a matter of also of absolute regulation, control. Merlin, ubi. mentions the fact that, sup. although tradition indicates that from the earliest France, day citizen had a every to reduce a of the common part also was ownership by possession, yet true that as as the Salic law early regu- *5 TERM, 1895.

Opinion of the Court. Pothier his treatise on in certain particulars. Prop- lated as follows: erty speaks well as all other civilized countries of

“In Francesas which law restrained liberty civil pure Europe, who, to animals to one law of nature every capture gave to no Imitate, in natwrali person particular. being belong and to themselves, havé reserved to those to The sovereigns hunt to transmit to all it, whom right they judge proper forbidden, to other Some hunting persons. if had the doctors have doubted to sovereigns right ancient to and to forbid it to themselves their sub- reserve hunting contend that as God has to man dominion They given jects. had no to all beasts, his authority deprive over the prince them. of a which God had The natural given right subjects to each individual. The law, they, permitted hunting say it forbids is to the which natural law and contrary civil law who, exceeds, consequently, legislator, being to natural can ordain law, submitted con- himself nothing law. to these easy reply objections. trary fact that God has human kind dominion From the given it beasts, does not follow that each individual of the over wild be exercise this

human race should dominion. permitted cannot it is said law. law contrary The civil natural those true as which the natural law This things regards forbids; which civil law restrict commands can natural law that which permits. greater part laws are but restrictions on civil nothing all those things law would otherwise It is for the natural this reason, permit. law nature, pure hunting although permitted individual, the had the it in each reserve favor prince right forbid Pothier, certain to others. du Traite persons de Nos. Droit 27-28. Propriété, to hunt in his dominion; right belongs king him to take gives quality sovereign authority pos- all others above one, session things belong animals; the lords and those as wild who have a such hold but from his to hunt can permission, such restrictions and to this modifications as permission affix to him No. seem good.” ». Opinion of the Court. classification of In animals origin tracing feres

natures, as Pothier moreover common, things says: had in “The first of mankind all common those things *6 had to the human which God race. This given community not a like that interest, which positive community exists between sevéral who have the of a persons in which each thing particular portion. was a which those who have written on this community, called a have which resulted from the negative community, fact that those which were common to all no things belonged more to one than to the and hence others, no one could pre- vent another from of these common taking things portion which he in order subserve his judged necessary wants. Whilst he was them others could not disturb using him, when he had use if ceased to were them, which they things were consumed fact use, by immediately things into reentered the. and another could community, negative use them. The human race men having multiplied, parti- earth, tioned themselves the and the among greater part those which were on its surface. That which fell to things each one them commenced to to him in among belong pri- vate and this is the ownership, process origin Some did not enter into however, this divi- property. things, in sion, remain therefore to the condition of this.day ancient and No. 21. negative community.” to those which remain

Referring common, things as the what writer qualified negative community, great says: “ These are those which called res things jurisconsults — eemimum.es. Marcien refers to kinds several air, water which runs in the and its rivers, sea shores. . . As wild animals, natures, remained in régards they feres the ancient state .of community.” negative

In both the and Pothier, works ubi will be sup., Merlin found a full reference to the control history varying exercised over of a citizen by law-giving power natures, evi- acquire qualified ownership animals,/me thereof denced Salic law, regulation already TERM, 1895.

Opinion of the Court. to, Charlemagne, referred exemplified by legislation all vicissitudes governmental and continuing through line of law and This unbroken precedent authority. which Code, Napoleon summed up by provisions There are 714, belong declare things (arts. 715): to all. Police is common and the use which regu- one, direct the manner may enjoyed. lations .be also by special regulated faculty hunting fishing Like of the fundamental upon laws.” principle recognition to similar rests has led history which the property law of and identical results the common Germany, said of Austria, and, indeed, safely law Italy, Con- all the Saint the law of countries Joseph Europe. vol. cordance, p. also based

The common law of England treated and therefore common ownership, upon principle *7 it as governmental authority. between whilst out

Blackstone, pointing distinction common, and rests those which are things private common of an individual to reduce a of this property part on no it, and thus a ownership possession, acquire qualified n otheror different principle which the civilians from that upon 12. based such Bl. Com. 1 and right. he common game,

Referring especially says: “ notwith which, are few all, But after there some things introduction and continuance property, standing general such wherein must still remain in common, being unavoidably had; of being but an usufructuary capable nothing property first occupant during and therefore still to the belong Such the time he holds of them and longer. water, which air and are elements of (among light, others) .the his his windows, man means his gardens,' a may by occupy also are conveniences; mills and other such generality of a wild natura are to be those animals which said fera seize man may upon and untamable any disposition, 2 Bl. Com. his own and use pleasure.” keep in animals A man have a property may lastly qualified m Opinion Court. naturm, is, have the propter prvoilegium, may

form and them in exclusion of privilege hunting, taking killing other Here he has a transient these ani- persons. property mals called as continue so within his they usually long and restrain from them liberty, may any stranger taking into but the instant another therein; they depart liberty, ... A man can have ceases. no abso- qualified property lute as he in the earth these, and permanent property land; since these are of a and and nature, vague fugitive therefore can admit of a owner- qualified precarious which lasts so in actual as are use ship, long occupa- but no tion, 2 Bl. Com. 394. longer.”

In the existence and stating scope royal prerogative, Blackstone further says: “ There still remains another species prerogative property, founded from a different have very upon principle been mentioned of such before; animals, property form naturm, are the denomination with the known by them; destroying pursuing, taking vested in him derived to such of his alone and king a of a chase, have received the free subjects park, grants In the first then, warren free ... we fishery. place it cannot be denied, and indeed shown, already by the law of nature man from peasant prince every has an own use all equal right pursuing taking naturm, and, therefore, creatures as areferm the first liable to be seized nobody, occupant, so it was held so late as Justinian’s even law imperial time. . end and constitu- '. But it follows from the very *8 tion of well as natural others many this society restrained to a be man as an individual may by belonging laws or for the positive enacted reasons of state supposed benefit of the 410. 2 Bl. Com. community.” from earliest of the of practice England government time to into execution the has authqrity present put control and of regulate taking game. to control attribute

Undoubtedly government animals which was thus naturm, taking recognized form TERM, 1895.

528 Opinion of the Court. the common law vested in England, enforced by not denied their where by charters, colonial governments, conflict with is also royal prerogative. grants which the colonies thus certain that possessed power to the States with the mother separation passed at in them so far present day, and remains country, with, or be not restrained exercise may incompatible by, to the Federal the Con government conveyed rights states Commentaries, in his Kent, stitution. that of' a natura

animals qualified property. feral In States laws most have been 2 Kent Com. 347. We for the game. protection preservation passed case where so referred has power legislate been the books contain cases although been involving questioned, some as to the statutes. meaning controversies 410; 128 Mass. v. Commonwealth v. Hall, Commonwealth O'Neil, 304; St. v. 71 Wilkinson, 139 Penn. People Michigan, where the some are also cases validity 325. There particu in some of the of enforcement lar method statutes provided Kansas v. 19 Saunders, Kansas, been drawn question. 2 Evans, Idaho, v. 127; Territory cases States recognizing' The adjudicated the common are to control regulate 94 U. Mc v. S. Virginia, 395, numerous. In Crady citizens of other States the State of. prohibit Yirginia within the tide waters that State was oysters from planting Manchester v. Massachusetts, this court. In 139 upheld of Massachusetts of the State to con 24, U. S. authority of fish within trol and regulate bays catching v. maintained. also 60 Y. was also See N. Phelps Racey, State Illinois, ; 320 American Co., v. 97 10; People, Express Magner v. Northern Illinois, 133 State 649; v. Ex People, Pacific 58 v. 58 Minnesota, 403; Rodman, State Co., Minnesota, press California, ; 103 Maier, 476 v. 56 Organ 393; Ex parte v. Arkansas, 267, 270; Law, 93; Allen N. Wyckoff, 90, 409, 51 Ohio St. Gentile v. 209; Indiana, v. State, Roth 23 Mo. cited Farrell, ; v. cases there 415; App. v. ubi Saunders, Territory Evans, ubi sup.; sup. *9 GEER v. 529

Opinion of the Court. fundamental Whilst which the common principles upon in rests have game undergone change, develop- ment of free institutions has led to the of the fact recognition or control in the State, power lodged resulting is to be this common like all other exercised, ownership, powers as a trust for the benefit of the and not government, people, for the as a of the dis- as prerogative advantage government, from the for the tinct benefit of individuals people, private as from the for the Therefore, distinguished public good. as held this State, exercising power, by. in v. Waddell, court Martin its Pet. 410, represents people, is and the that of the in their sover- united ownership people The common and its eignty. ownership, resulting responsi- is thus stated in State, considered bility opinion a.well of the Court California: Supreme “ The wild within a State belongs people not their collective sovereign capacity. elect so far as.the ownership except may

private people if fit, make see so; they may, they absolutely prohibit if it is deemed it, or traffic and commerce it, taking necessary public protection preservation Ex Maier, ubi good.” parte sup.

The same view Court has been Supreme expressed as follows : Minnesota, “We take it to be doctrine this country, the correct of wild so far as are animals, capable ownership in its is in the a sover- State, ownership, proprietor of all and for the benefit eign representative capacity common.” ubi Rodman, sup. people alone The analysis principles upon foregoing owner- rests an individual qualified acquire therefrom, and the deduced State, ship game, de- to control benefit, clearly for the common of Connect- monstrates the of the statute of the State validity icut here provi- sole controversy. consequence killed within sion forbidding of such to confine the use beyond those State. own-it, of that proposition people VOL. CLXI—3Í TERM, 1895.

Opinion the Court. her limits beyond not forbid carrying that the State cannot allow that' a State the contention involves, therefore, *10 the benefits property its own people enjoyment time at same without per- in common, to them belonging in that to States participate the citizens of other mitting- at in the discussion said It was which do not own. an absolute has the State it that bar, be conceded although as its judg- and killing game control regulate inasmuch as the interest of deems best people, ment borders to within her has here chosen to allow people an ob- cause it become and thus of it, take game, dispose as a necessity property of State commerce, resulting ject is hence and commerce, become the of interstate has of the .Con- 8, section 1, of article controlled provisions by this errors which But of the United States. stitution that where involves are manifest. presupposes argument allowed, State is and its sale the killing game meaning it commerce legal that bécomes thereby affix con- word. In of the authority that view as is this ditions to the and sale predicated killing and its com- of such on the nature peculiar it well be of the State, all citizens mon by ownership .the an is authority whether commerce' by given doubted created within its borders a State reduce possession, killed, without be not when taken, such game provided of the State. The common ownership imports jurisdiction so chooses, if sovereign keep property, within its for qualifi- every purpose. always jurisdiction from the State necessarily cation which forbids its removal on the sub- transaction entered into and formed of every part articles and the mere sale exchange these ject, deprived full and of of that element of contract of freedom how- which is an attribute commerce. Passing, essential as we the decision of this ever, do, granting question, State, under the killed within provi- dealing not does commerce, created internal State sion question, commerce became necessarily follow that such internal under and therefore commerce, of interstate subject-matter v. CONNECTICUT. Opinion of the Court. States. The dis- of the United of the Constitution

control commerce and inter- and external internal between tinction been marked, always commerce is recognized state 1, 9 Wheat. Mr. Chief Ogden, court. In Gibbons said: Marshall Justice not these words

“It intended comprehend say is carried which internal, which commerce, completely different man in or between a State, on between man to or does extend same parts be inconvenient and other would affect States. Such power is certainly unnecessary. ‘ is, as the word among may very prop Comprehensive commerce concerns more States restricted to that erly would one. is not one which than probably phrase interior trafile of a indicate the been selected to completely because it is not apt phrase purpose; *11 the classes commerce the enumeration of particular would not been which be extended power made, had the intention been to extend to every power not enumeration The something description. presupposes if we enumerated; and that regard language something, be the inter sentence, or the must exclusively subject and nal commerce character of the the State. The genius its action is whole seem to be that to be government applied and to those inter nation, to all external concerns but not to those nal concerns affect States which generally, not are within a which do which particular completely with not to inter states, affect other which is necessary fere, for the some general powers executing internal The commerce government. completely State, then, may the State be as reserved for considered itself.” court, 10 “Wall. this 557, 564, in The Daniel

So, Ball, again, said: Field, Mr. Justice speaking through which is sub- There is an internal commerce undoubtedly The control of States. power delegated ject ‘ States,’ limited to commerce several among Congress with Indian tribes. limita- with This nations and foreign TERM, Opinion of the Court. Federal from the control, excludes commerce tion necessarily that commerce course which is thus not designated, limits of a State and does on carried entirely other Statés.” affect to or extend be distinct from commerce may that internal inter- fact

Tbe whole theory commerce, upon destroys state error proceeds. plaintiff argument of and killing ownership control the Staté which the state law the commerce admitted, being internal commerce, since the was necessarily only permitted, not become the of external should that it restriction and was a it. went grant part along commerce All killed within State came under had the lawful the State condition, authority this made relation such no contracts impose, the State that such the law of consenting were exempt were confined to inter- made, contracts provided to external commerce. did not extend nal identical with Kidd v. Pearson, case respect there The facts were briefly S. 1 128 U. considered Iowa the distillation The State of permitted follows: “ mechanical, medicinal, culinary intoxicating liquors was asserted to send out of The right sacramental purposes.” made on the that, therein ground the State intoxicating liquors became the sub when manufactured liquors State* and were thus commerce, of interstate protected by ject but this States; of the United court, Constitution through out the vice in the Lamar, Mr. reasoning, Justice pointed that the State had author which consisted presupposing *12 the intoxicants, manufacture thereby ized the overlooking manufacture was alone such exceptional in of the error sub here So argument plaintiff permitted. the state statute gives unqualified asserts stantially in kill fact it is the con when only given upon right killed be not that the dition transported game beyond It was of the State limits. state upon qualify limits within its game and restrict below rested its and similar views conclusion, court that the v. CONNECTICUT. 533

Opinion of the Court. last the courts of resort of several of been expressed Minnesota, 393, 400, In v. Rodman, the States. said: Court Minnesota Supreme “ to con of such animals as are The adapted preservation other useful is a matter as food or any purpose, sumption of the and it is within interest; public police power united sov their State, as the the people representative best laws as such game, make such will ereignty, preserve to the citizens, secure its beneficial use future that end it reasonable any may adopt regulations, taken' and .as to time and in which manner such may game killed, but also limitations right prop imposing upon in such after it been reduced to has erty possession. game because Such of his limitations deprive person property, he takes or kills had'no right game previous it to when it, and by reducing, pos acquires right and limitations session he does to such conditions so subject State v. See, also, has fit seen legislature impose.” Northern Minnesota, 58Co., Express Pacific Illinois, 320, 333, So, also, Magner People, Court of Supreme Illinois said: denied So far as we never been are aware, judicially make regu under its may government powers police their lations for the and fish, restricting preservation game the year, although molestation to certain taking seasons laws to this force many it is have been effect, believed, of the Gov older Federal States since the organization ernment. . . people ownership being no in State, the authority, repository sovereign it neces affected, dividual to be property rights .of results sarily representative legislature, individuals or withhold people to. grant as in the restrict, to hunt and or kill qualify welfare. of its members will subserve opinions public best Stated in is a boon other and kill hunt language, the sover either granted privilege, expressly impliedly — individual, not a in each eign authority inherent when individual is taken consequently nothing away from *13 TERM, 1895. 634 Opinion of Court. at stated seasons denied the hunting is privilege accurate to It owner- is, say game. perhaps, hilling in trust for all the of the authority people ship sovereign it is the and hence duty the State, by legis- implication laws will best lature to enact such preserve future to the and secure its beneficial use the trust peo- in of individual view, State. But question ple one of and not of private policy right.” enjoyment public v. The Maier, Organ See also Ex parte California, 476; 103 State v. in true Arkansas, is, indeed, 56 Evans, v. 2 Saunders, Territory Idaho, 19 Kansas, 634, it was held that a state law prohibiting shipment killed therein violated the inter- of the State of outside game States, of the United state commerce clause Constitution decision of these which controlled the cases the reasoning it did from the fact not con- think, inconclusive, we is, between the owner- sider the fundamental distinction qualified in other nature perfect ship game and thus of the State over overlooked authority property, its and the conse- confines, game property into what- of the State to follow such property quent power ever hands it with the conditions restrictions might pass for the interest. deemed necessary public derived Aside from authority for the benefit of and the trust common ownership there thereto, which the State relation exercises people is another view of the of the State regard power which is conclusive. equally flows from existence the undoubted preserve game be none end, of a may police power so interstate less called into because doing efficiently by play, affected. Kidd v. commerce and indirectly remotely Hall Sherlock S. 485 ; Cuir, v. De 128 95 U. Pearson, 1; U. S. 9 Wheat. 1. 99, 103; Gibbons v. 93 U. S. v. Alling, Ogden, birds Indeed, source of the (like police power flows those covered here called statute question) a valu for its from the of the State to people duty preserve Ex parte Y. 10; able food N. Racey, Phelps, supply. GEER v. Opinion: Field,

Dissenting Maier, ubi v. The ubi sup.; Magner cases People, sup., there cited. exercise the State of such there- *14 fore comes within the of directly v. Massa- principle Plumley 155 U. S. chusetts, 461, 473. The of a State to power protect its the adultera- by adequate police regulation people against tion of articles of food, was in (which that case maintained,) so commerce affected, although doing might remotely carries with the existence of a like necessarily a food common to preserve supply .all belongs of the can of people become the subject in a and which can never be the qualified way, of commerce with object the consent of the State and except to the conditions which it deem best to impose for the public good.

Judgment affirmed. Field Justice Mr. dissenting. of with the associates majority my

I am unable agree Court of of the Errors Supreme the affirmance of judgment state, I will in this case, briefly, of grounds Connecticut of my disagreement. contained in Connecticut, of of the statutes

Section 2546 shall, “no at enacts that any 1838, person the revision of for, or ruffled woodcock, pur- quail, kill time, grouse, any the limits of the State; the same beyond pose conveying with intent have his pro- or or shall possession transport, of such birds limits, any cure the beyond in substance it adds killed And within the State.” such bird or the State any within reception by any person shall be the State prima without birds for point shipment birds, killed within the the bird were evidence facie its limits. the same beyond State for the carrying that every person Section 2530 of the statutes provides ruf- woodcock, to kill, quail, shall kill, destroy, attempt between first fled squirrel, called grouse, gray partridge, be fined shall October, first day day January dollars. a sum twenty-five exceeding information commenced present proceeding TERM, 1895. Field, Opinion: Dissenting assistant district New attorney city presented M. defendant, Geer, Connecticut, Edgar London, against that he did, of that on court city, charging in the police receive and in his October, unlawfully 19th ruffled woodcock, grouse, quail certain October, 1889, the first after day the State intention their unlawful procure transporta- wrongful of the State. limits tion without court information the issued judge police Upon a warrant for the county, deputies, the sheriff him and to have before that defendant brought arrest The defendant answer complaint. being brought court that he was not the court pleaded complaint guilty, before the court, matter, into the it is but, alleged, inquired and that he a fine of a him to be.guilty, pay specified adjudged with the costs and stand amount, prosecution, together *15 until the with. From that judgment committed complied the next session of the Crim- the accused appealed decision Pleas to be held- for New of Common London inal Court 1889. At that December, on the second Tuesday County, he and demurred to the and term court appeared complaint that the did first, matters contained therein the on ground, second, an on the that it did offence; uot constitute ground that the birds were killed for the of being not.allege the limits of the on the State; third, beyond ground conveyed General under Connecticut, that section Statutes of was which the was void and unconstitu- complaint brought, far as could be so construed to forbid the tional, transporta- birds killed from tion of the the State, having intent to to another their procure transportation them that the State, birds had been sold to averring parties interstate, move, had and other as an article begun on the fourth, commerce; that it the com- ground appeared the defendant was if under the section plaint guilty the birds were him in the State as the markets of bought had and merchandise, to move to another as begun article interstate in the commerce, such facts averred being to exist. complaint Field, Opinion:

Dissenting Court of Common Pleas The Criminal overruled the de- the was and found the murrer, sufficient, complaint declined to over, answer was held that accused he having the offence was was charged, guilty accordingly a fine of sentenced dollars and the costs pay twenty-fiye and to stand committed until prosecution, judg- with. The defendant ment was complied thereupon appealed from the rendered Criminal Court Com- judgment mon Pleas to Court Errors of State for Supreme n the Second tp be held at on District, Judicial Norwich last On Court May, day Tuesday Supreme n ofErrors found error there was no apparent judg- ment of the Criminal Court of Common accord- Pleas, affirmed it. An then taken was from the decision ingly appeal Court of Errors Court Supreme Supreme United which latter court error States, plaintiff as of error the lower court: assigns following grounds 1st. In to hold much of that so 2546 of section refusing the General under which Statutes, was complaint brought, be construed to forbid might transportation the birds killed and described, lawfully permitted by the laws of the State to become traffic and subject and void. commerce, unconstitutional 2d. In to hold much of that so section refusing might be construed forbid receiving possession,' with intent thereof to another procure killed, the birds described, lawfully permitted by the laws of the State to of traffic and become and void. commerce, was unconstitutional *16 3d. In that the was of defendant an offence holding guilty under if the killed in the the section birds were State, lawfully and were the the the market of defendant State bought of and had move as article inter- merchandise, to begun state commerce.

And this errors affirms court, notwithstanding'the assigned, the of of Errors of the Court Connecticut. judgment Supreme

The record to Court of sent it from the Errors of Supreme the State the involved, presents questions, supposed TEEM, OCTOBEE Field, Opinion: Dissenting confused, manner. them and indistinct Disentangling very words., that the used, from the of Supreme mass appears an offence the of held that it was Errors against Court filed in the the information was statute, police upon have in his for accused to London, posses- court New in the State mentioned killed within the birds sion any them with- for transporting purpose period designated, inferred, to be under the law, and that was out killed the State for' that that the birds were within purpose. at which aimed, if that- offence statute But constitutes that the birds were in not information is defective alleging of. them be- stated, is, for that killed conveying purpose and thus that were unlaw- the limits of the State, yond killed. fully described another birds

The transportation killed, does not constitute an offence were lawfully which the under the statute. against transportation levied was that of birds killed; was unlawfully statute law birds evident prevent unlawfully object being- killed from the markets of State. another being transported law was directed of the birds within against killing months of and, certain furtherance year; designated of them to law, that another ' to be unlawful. The of Errors held declared Court Supreme it was not for the State enact that unconstitutional that be killed and sold or held for domestic birds consump- might lawful sub- tion the birds became a only; although when State for purpose ject it was to limit their for sale food, competent the.State And needs of domestic .the consumption. Court this court,, affirming judgment Supreme to sanction doctrine; soundness Errors, appears ifs Í cannot assent. yield animal, in the waters of the

When whether living above, State or in air killed for the lawfully purposes of com of food or other uses it becomes an article man, one and its use cannot be limited to the citizens of merce, the exclusion citizens of another State. Although *17 Opinion; Field, Dissenting J. are of some courts that the State

there declarations possesses in a wild and when it authorizes the its property of to killed and as an article limit the sale be sold food may and' of for domestic Court consumption, Supreme only of the' to Connecticut case Errors deciding present appears held that I unable to its sound doctrine, am assent to had the where the has never ness, State its’possession I do not that in case or under its control or use. admit such held in' is which, there specific property by by any the exercise of it can- limit authority, rightful lawfully control and of-the animals to classes of use particular or to citizens of or States. or citizens, persons, particular places I hold that where animals within a State, But on the contrary, or air at the above, whether its waters are, living cannot man, the reach or control so time, beyond they be his use that of the State subjected any respect, or of in a are not the one any they property into sense. I hold that until are brought they subjec proper tion or labor are not the use skill man, by they prop and become any one, property erty they h are man the extent to whic subjected by according man labor his labor or skill his use benefit. When his and by and sub or skill such under his control animals brings any a use, to his extent ject property acquires in' in the animals is limited of others them, is a extent This thus by generally acquired. all States Christen doctrine, by recognized acknowledged natural doctrine both law,- positive. dom. cited opinion The Homan as stated law, Digest, That belongs it as follows: majority, expresses natural, law by person nobody acquired as to be be at first A bird such height it.” possesses may fly can then assert no one skill, the reach of man yond be then said it cannot bird.; any fight cause the bird is one. But when any belong becomes man, or use within the reach control brought and. article of com at instant his property, ofor other States. merce him and citizens of same between TERM, Field, Opinion: Dissenting I had written me some since occa years In an opinion I there said that it of this rule of law. gen sion *18 speak and that both natural where a law, positive, eral principle which could inanimate, or otherwise not be animate subject, or use of is reduced to such man, under the control brought a individual labor or skill, use his right by prop control wild in the air bird to no it is acquired. belongs erty it to the earth and takes it when fowler but one, brings has it is his He reduced it. to his into property. law of nature and his own and the labor, his control by to it. his exclusive law of society recognize pearl one, to no the diver of the sea bottom belongs at the it to and the water light has-property enters brings labor reduced it to his own and He has possession, by gem. all law Ms in all communities by recognized. hunter in the north have on plains'and So trapper have the furs animals they gathered, though a property taken roamed were at'large belonged from which added their to the uses of man have labor by no one. They his comfort without that which, labor, article promoting a therefore, been lost to him. have They right, would -in would maintain court Christendom furs, every net fish from the sea, the fisherman when it. So drags of which no one them, permitted a he has Schottler, Water Works v. 110 him. Valley Spring despoil 347, U. S. Saunders, Kansas, 19 the defend- 127, v. Kansas

In State of of the Adams was Express Company, ant charged, agent “ at certain Columbus, Kansas, chickens, prairie with receiving ” and them killed as had been shipping recently which The statute in the State of Illinois. of Chicago, to the city made it unlawful he was any per- prosecuted under which birds mentioned, animals or or to ship any son to transport of Kan- chickens, out State which were prairie among not thereof to a fine of him bn conviction sas, and subjected defendant ad- more than dollars. The ten nor fifty less than con- acts but contended that such the facts mitted alleged, of the State the statute offence, no stituted claiming v. CONNECTICUT. Field, Opinion: Dissenting him commenced were which the under proceedings against held the- void. The District Court unconstitutional and and sentenced found defendant valid, statute guilty, fine of ten dollars and costs him to a prosecution. pay to the Su- From the conviction and sentence appealed which Nansas, Court reversed preme judgment can a District law Court, (whether- holding pass will has acted Congress already upon- subject not) from one interfere with free directly is or a another, through anything referred to the- commerce;” of interstate 282, case of S. where was- Missouri, Welton U. held “the this court fact Congress seen fit to rules interstate prescribe specific govern inaction on this not affect the Its commerce, does question. *19 with when considered with reference to its subject, legislation to declaration is commerce, respect foreign equivalent and untrammeled.” that interstate commerce shall bé free I do not the of its doubt the State, by legislation, wild, for so far as such of provide protection game, protec- tion for comfort, is for or their necessary preservation or not contravene the health of does its citizens, security of of interstate commerce. power Congress regulation I do for- But in its legislation deny authority .of to interfere of any protection preservation game, with the control of respect paramount Congress prescribing when the terms another its the State shall be restricted to conditions as killed, may such The absolute control of Congress regulation impose. is- state authority, interstate commerce, by any unimpeded much than greater any regulation consequence its wild where may reference to prescribe place when be consumed. killed, may reduced When in this case, birds like the property, bemay of commerce an article becomes possession or of sale to of one State community, the citizens or how- court, decision citizens several. The however ever, would limit the of such of sale property, TERM, 542 Harlan, Opinion: Dissenting and whether become, valuable or killed, living directions State or in which the community property and would convert it from the found, freedom of use which the limited use property general per- belongs sons or communities where to a class found, particular only property special possessed ingredients quali- I ties is limited. do not think that it lies within province to confine the excellencies of articles of food any borders to its own fortunate inhabitants to the ex- clusion of and that it others, may lawfully require killed within its borders shall be eaten parts as it may country prescribe. the Constitution of the United been ad States it

By has commerce between States is under abso judged lute arid that an article of whenever regulation Congress, another, to move one State to commerce begins between the States commenced, and that with its control no State can interfere. Welton v. Missouri, regulation 91 U. S. Henderson New 92 S. 275; York, 259; v. U. Chy 12 Freeman, ; S. Ward v. Wall. Lung U. Maryland, 418; State Tax on 15 Wall. 284; Gross Railway Receipts, Sherlock v. 93 U. S. 99. Alling,

I therefore dissent from the conclusion of the majority associates of thé Court my affirming judgment Supreme of Errors of Connecticut.

Mr. Justice Harlan dissenting.

The statutes Connecticut declare that person every sell, shall for sale, or have buy, expose *20 or the or shall kill, purpose, hunt, attempt pursue, destroy kill woodcock, ruffled called any partridge, quail, grouse, or and the between the first of gray January squirrel day October, first of in of the or day having killing possession each bird or . . be a offence, deemed squirrel separate shall be fined not more than $30.” also They provide “ no shall at time kill ruffled person woodcock, any any grouse or the the for of the same quail beyond purpose conveying limits of the his State;. shall posses- transport

Dissenting Opinion: Harlan, with intention to the. sion, said beyond procure transportation killed within this State. The limits, birds any reception within this State of such bird or birds for by any person any to a without the State be shall prima fade shipment point , evidence that bird or birds said were killed within State for the its same limits.” purpose carrying beyond was error not plaintiff charged his had been killed “for possession game same limits of State.” beyond conveying admitted that killed, lawfully game question is, was killed what is called the season.” But open during was that the defendant received and charge unlawfully had in his with the and unlawful intent possession, wrongful same limits procure beyond certain ruffled woodcock, grouse quail within the State after the first of October. day

I do not power prescribe question wild limits not period during may killed. The as seen, we have does not lawfully pro- hibit the killing game altogether, hunting permits ruffled killing woodcock, quail, gray grouse squirrels between the October and the first Janu- first day day ary. been killed, the lawfully question having who killed it became person it into his took owner not be thereof. I take will rightful This, it, questioned. As such owner sale, he could at it, dispose by gift discretion. So food, as it was fit use long could not it, interfere with his more than disposition it could owner interfere with the other disposition by of. in its character. personal that was not noxious To hold that from the person recéiving personal property owner it with it out receive send intent the State is to arbitrary govern- recognize ment which is inconsistent with the belonging every liberty man, as well with the the owner- inhere rights ship Such a also be" inconsistent would property. holding with the freedom of interstate commerce which has been established States. If the the Constitution the United *21 TERM, Harlan, Opinion:

Dissenting should I case, had not held present differently majority to sound- said show the was unnecessary discussion if the But seems that stated. ness just propositions in whether Connecticut finds in citizen, elsewhere, residing of that the markets one of cities or towns State game, been and is food, killed, fit for lawfully lawfully of such without market, the keeper may, possession a. take it his into becoming criminal, buy pos- it eaten, intention be eat to have session, it, his provided But himself to a as well Connecticut. he will fine, if he such fine, imprisonment upon failing pay and' with take of such lawfully buys intent send it friend in an to a State. adjoining court cites 391, 395, U. S. McCready Virginia, in which it was its own held could restrict to Virginia citizens in the streams privilege planting oysters under soil which was it. I can owned But not believe that it would hold that which had been oysters, taken out of such which had law lawfully been streams, could not be with the in fully planted, purchased Virginia, tent to them to another This ship court, State. Plumley v. Massachusetts, 155 U. S. another of the cases cited by sustained as valid majority, Massachusetts, a statute enacted manufacture and sale prevent deception that State of imitation sale butter, which prohibited to look as to cause it oleomargarine, colored artificially so like butter. that this' yellow But genuine I cannot suppose court will ever hold that it a crime State could make with the intent oleo purchase another send margarine genuine had been yellow lawfully butter that manufactured within its limits. that the

Believing Connecticut, statute of its application to the present case, not consistent liberty citizen or with the freedom of I dissent commerce, interstate from the opinion court. judgment Mr. Justice Brewer Peckham, Mr. Justice heard the cause. took of this argument, in the decision part