certified to the Patent Office, under the surety when the railroad took the case to special directions of the statute." We consider these observations as applicable to the present case, and the result is appeal and writ of error dismissed, and certiorari denied. the supreme court of the state. See Culver v. South*Haven & E. R. Co. 144 Mich. 254, 107 N. W. 908, 109 N. W. 256; Culver v. Fidelity & D. Co. 149 Mich. 630, 113 N. W. The ground is that the original judgment was got by fraud. The plaintiff Mr. Justice White and Mr. Justice Mo- Steele had contracted with the surety comKenna dissent. Mr. Justice Moody did not sit. (211 U. S. 26) V. FREDERICK M. STEELE and the Fideli- 9. pany and also with purchasers of the railroad to pay the judgment against the latter if recovered, and joins as plaintiff on the footing that he is the real party in interest. The railroad company is made a defendant, but it is a Michigan corporation, and, as the other defendants are citizens and residents of Michigan, if it should be aligned with the plaintiffs the necessary diversity of citizenship would not exist. The circuit court dismissed the bill on demurrer for want of jurisdiction, and allowed an appeal with a certificate that the want of the APPEAL AND ERROR (§ 786*)—FRIVOLOUS-requisite diversity of citizenship and conseNESS OF QUESTION-DISMISSAL. quently of jurisdiction was the sole ground of the decree. The case is before us upon a motion to dismiss or affirm. A decree of a Federal circuit court, dis missing, for want of the requisite diversity of citizenship, a bill by which, on the ground The appellants candidly admit that for a of fraud, injunctive relief against the col decision upon jurisdiction the parties may lection of a judgment against a railway be arranged according to their real incompany and of a subsequent judgment against the surety on its appeal bond is terests, and that, if the railroad company sought by such surety and by the person is an indispensable party, the decision bewho is, by contract, ultimately liable to pay low was right. But they urge that it is althe original judgment, is so plainly correct leged that the railroad is insolvent, that no as to require the dismissal of an appeal relief is asked against it, but it is left free to the Supreme Court, where such decree is to pay the judgment if it desires to and based upon the proposition that such railway company, although insolvent, is an in-can, and that the real parties in interest are the plaintiffs, and especially Steele, upon dispensable party, which must be aligned with the plaintiffs for the purpose of deter- whom, it is said, the burden ultimately must fall. These arguments do not seem to mining the question of jurisdiction. us to need an extended answer. With regard to the alleged insolvency, it is a strange proposition that a defendant is not an indispensable party to an attempt to stop the [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 786.*] [No. 393.] Submitted June 1, 1908. Decided October collection of a judgment against him be cause, at the moment, his property is not sufficient to pay his debts. The railroad was sole master of the litigation against itself, and we must assume is co-operating with the plaintiff in the present case. It seems to us equally strange to suggest that a contract of a stranger with a stranger can affect the interest of the party immediately concerned. The omission of any prayer for relief against the railroad simply shows that properly it is to be treated as a plain tiff in this case. Dawson v. Columbia Ave. Sav. Fund, S. D. Title & T. Co. 197 U. S. 178, 180, 181, 49 L. ed. 713, 715, 716, 25 *Mr. Justice Holmes delivered the opin- Sup. Ct. Rep. 420. ion of the court: This is a bill in equity to prohibit the collection of a judgment rendered by a Michigan state court against a railroad company, and also of a judgment against the plaintiff corporation upon a bond given by it as It is suggested that the controversy as to the judgment against the security company is separable, and that relief may be given against that, at least, without the presence of the railroad. But the only ground on which that judgment is complained of is For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 82. [Ed. Note.-For other cases, see Commerce, Cent. Dig. 102; Dec. Dig. § 55.*] [No. 206.] that that against the railroad, upon which | been lawfully taken in foreign countries it is based, was obtained by perjury and during the open season there. fraud. So long as the judgment against the railroad stands, that against its surety cannot be impeached. By its bond the surety undertook to pay the judgment, if rendered, against its principal, whether right or wrong. If the principal remains liable under that judgment, the surety is bound to Argued October 19, 1908. Decided November 2, 1908. State of New York for the County of pay. Krall v. Libbey, 53 Wis. 292, 10 N.IN ERROR to the Supreme Court of the W. 386; Piercy v. Piercy, 36 N. C. (1 Ired. Kings to review a judgment entered purEq.) 214, 218. But the principal cannot be suant to the mandate of the Court of Aprelieved by a proceeding behind its back. There is a further allegation in the bill peals of that state, which had reversed the that, pending the proceeding, Culver, the judgment of the Appellate Division of the Supreme Court, Second Department, replaintiff in the original suits, was adjudged versing a judgment of the Supreme Court, a spendthrift, and that a guardian was ap-quashing a writ of habeas corpus to inpointed, but was not substituted for Culver in these suits. A hope is expressed that, if the case proceed to oral argument, some reason may occur for attributing more importance to these facts than is disclosed at present. But that is an illusion. The bill, as we have said, is founded solely on allegations of fraud in getting the first judgment, and must be maintained upon them, if upon any. The railroad company is an indispensable party if that issue is to be tried. It is unnecessary to consider other objections to the suit. This court has jurisdiction to declare the circuit court's denial of its own jurisdiction correct. But we regard the decision of the circuit court as so plainly right that the appeal should be dismissed as frivolous. Appeal dismissed. (211 U. S. 31) PEOPLE OF THE STATE OF NEW YORK V. quire into a detention for the alleged pos- See same case below in Appellate Division, 109 App. Div. 295, 96 N. Y. Supp. 286; in Court of Appeals, 184 N. Y. 126, 3 L.R.A. (N.S.) 163, 76 N. E. 1032. The facts are stated in the opinion. Messrs. John B. Coleman and Edward R. Finch for plaintiff in error. Messrs. James A. Donnelly and William Schuyler Jackson for defendant in error. * Mr. Justice Day delivered the opinion of the court: This case comes to this court because of the alleged invalidity, under the Constitution of the United States, of certain sections of the game laws of the state of New York. Section 106 of chapter 20 of the Laws of 1900 of the state of New York provides: "Grouse and quail shall not be taken from January 1st to October 31st, both inclusive. Woodcock shall not be taken from January HENRY HESTERBERG, Sheriff of the 1st to July 31st, both inclusive. Such birds County of Kings. CONSTITUTIONAL LAW (§ 278*)-DUE PRO- LAW. 1. The prohibition against the possession of game out of season, which is made by N. Y. Laws 1900, chap. 20, is a proper exercise of the police power, and does not deny the due process of law guaranteed by U. S. Const., 14th Amend., although such game may have been taken in foreign countries during the open season there. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 823; Dec. Dig. § 278.*] shall not be possessed in their closed season except in the city of New York, where they may be possessed during the open season in the state at large." Section 25 of the law provides: "The close season for grouse shall be from December 1st to September 15th, both inclusive." As amended by § 2, chapter 317, Laws of 1902. Section 140 of the law provides: "1. 'Grouse' includes ruffed grouse, partridge, and every member of the grouse family." Section 108 of the law provides: "Plover, curlew, jacksnipe, Wilsons, com 2. Foreign commerce is not unconstitutionally regulated by the provisions of N. Y.monly known as English snipe, yellow legs, Laws 1900, chap. 20, under which the possession of game within the state during the closed season-except upon giving the bond provided by the statute against its sale is forbidden, although the game may have killdeer, willett snipe, dowitcher, shortnecks, rail, sandpiper, bay snipe, surf snipe, winter snipe, rinknecks, and oxeyes shall not be taken or possessed from January 1st For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes to July 15th, both inclusive." As amended | court of appeals the final order and judg by 2, chapter 588, Laws 1904. ment of the court of appeals was made the final order and judgment of the supreme court, and a writ of error brings the case here for review. Section 141 of the law provides: "Wherever in this act the possession of fish or game, or the flesh of any animal, bird, or fish is prohibited, reference is had The alleged errors relied upon by the equally to such fish, game, or flesh coming plaintiff in error for reversal of the judg from without the state as to that taken ment below are: First, that the provisions within the state: Provided, nevertheless, of the game law in question are contrary That, if there be any open season therefor, to the 14th Amendment of the Constitution any dealer therein, if he has given the bond of the United States, in that they deprive herein provided for, may hold during the the relator, and others similarly situated, close season such part of his stock as he has of their liberty and property without due on hand undisposed of at the opening of process of law. Second, that the provisions such close season. Said bond shall be to the of the law contravene the Constitution of people of the state, conditioned that such the United States, in that they are an undealer will not, during the close season en- justifiable interference with and regulation suing, sell, use, give away, or otherwise dis- of interstate and foreign commerce, placed pose of any fish, game, or the flesh of any under the exclusive control of Congress by animal, bird, or fish which he is permitted § 8, article 1, of the Federal Constitution. to possess during the close season by this Third, that the court below erred in consection; that he will not, in any way, dur-struing the act of Congress, commonly known ing the time said bond is in force, violate as the Lacey act, which relates to the transany provision of the forest, fish, and game portation in interstate commerce of game law; the bond may also contain such other killed in violation of local laws. 31 Stat. provisions as to the inspection of the fish at L. chap. 553, p. 187, U. S. Comp. Stat. and game possessed as the commission shall 1901, p. 290. require, and shall be subject to the approval of the commission as to amount and form thereof, and the sufficiency of sureties. But no presumption that the possession of fish or game or the flesh of any animal, bird, or fish is lawfully possessed under the provisions of this section shall arise until it affirmatively appears that the provisions thereof have been complied with." Added by chapter 194, Laws of 1902. Section 119 of the law makes a violation of its provisions a misdemeanor, and subjects the offending parties to a fine. The relator, a dealer in imported game, was arrested for unlawfully having in his possession, on the 30th of March, 1905, being within the closed season, in the borough of Brooklyn, city of New York, one dead body of a bird known as the golden plover, and one dead body of an imported grouse, known in England as blackcock, and taken in Russia. The relator filed a petition for a writ of habeas corpus to be relieved from arrest, and, upon hearing before a justice of the supreme court of the state of New York, the writ was dismissed, and the relator remanded to the custody of the sheriff. Upon appeal to the appellate division of the supreme court of the state of New York this order was reversed and the relator discharged from custody. The judgment of the appellate division was reversed in the court of appeals of the state of New York. 184 N. Y. 126, 3 L.R.A.(N.S.) 163, 76 N. E. 1032. Upon remittitur to the supreme court of the state of New York from the The complaint discloses that the relator, August Silz, a dealer in imported game, had in his possession in the city of New York one imported golden plover, lawfully taken, killed, and captured in England during the open season for such game birds there, and thereafter sold and consigned to Silz in the city of New York by a dealer in game in the city of London. He likewise had in his possession the body of one imported blackcock, a member of the grouse family, which was lawfully taken, killed, and captured in Russia during the open season for such game there, and thereafter sold and consigned to Silz in New York city by the same dealer in London. Such birds were imported by Silz, in accordance with the provisions of the tariff laws and regulations in force, during the open season for grouse and plover in New York. Such imported golden plover and imported blackcock are different varieties of game birds from birds known as plover and grouse in the state of New York; they are different in form, size, color, and markings from the game bird known as plover and grouse in the state of New York, and can be readily distinguished from And this is true when they are cooked and the plover and grouse found in that state. ready for the table. The birds were sound, wholesome, and valuable articles of food, and recognized as articles of commerce ing *different countries of Europe and in the United States. These statements of the complaint are the most favorable possible to the relator, and gave rise to the comment in the opinion of the court of appeals that the case was possibly collusive. That court, nevertheless, proceeded to consider the case | local game during the closed season it has on the facts submitted, and a similar course will be pursued here. While the birds mentioned, imported from abroad, may be distinguished from native birds, they are nevertheless of the families within the terms of the statute, and possession of which, during the closed season, is prohibited. As to the first contention, that the laws in question are void within the meaning of the 14th Amendment because they do not constitute due process of law. The acts in question were passed in the exercise of the police power of the state, with a view to protect the game supply for the use of the inhabitants of the state. It is not disputed that this is a well-recognized and often exerted power of the state, and necessary to the protection of the supply of game which would otherwise be rapidly depleted, and which, in spite of laws passed for its protection, is rapidly disappearing from many portions of the country. But it is contended that while the protection of the game supply is within the well-settled boundaries of the police power of a state, that the law in question is an unreasonable and arbitrary exercise of that power. That the legislature of the state is not the final judge of the limitations of the police power, and that such enactments are subject to the scrutiny of the courts, and will be set aside when found to be unwarranted and arbitrary interferences with rights protected by the Constitution in carrying on a lawful business or making contracts for the use and enjoyment of property, is well settled by former decisions of this court. Lawton v. Steele, 152 U. S. 137, 38 L. ed. 388, 14 Sup. Ct. Rep. 499; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Dobbins v. Los Angeles, 195 U. S. 236, 49 L. ed. 175, 25 Sup. Ct. Rep. 18. It is contended, in this connection, that the protection of the game of the state does not require that a penalty be imposed for the possession out of season of imported game of the kind held by the relator. It is insisted that a method of inspection can be established which will distinguish the imported game from that of the domestic variety, and prevent confusion in its handling and selling. That such game can be distinguished from domestic game has been disclosed in the record in this case, and it may be that such inspection laws would be all that would be required for the protection of domestic game. But, subject to constitutional limitations, the legislature of the state is authorized to pass measures for the protection of the people of the state in the exercise of the police power, and is itself the judge of the necessity or expediency of the means adopted. In order to protect been found expedient to make possession of all such game during that time, whether taken within or without the state, a misdemeanor. In other states of the Union such laws have been deemed essential, and have been sustained by the courts. Roth v. State, 51 Ohio St. 209, 46 Am. St. Rep. 566, 37 N. E. 259; Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; Stevens v. State, 89 Md. 669, 43 Atl. 929; Magner v. People, 97 Ill. 320. It has been provided that the possession of certain kinds of game during the closed season shall be prohibited, owing to the possibility that dealers in game may sell birds of the domestic kind, under the claim that they were taken in another state or country. The object of such laws is not to affect the legality of the tak ing of game in other states, but to protect the local game, in the interest of the food supply of the people of the state. We cannot say that such purpose, frequently recognized and acted upon, is an abuse of the police power of the state, and, as such, to be declared void because contrary to the 14th Amendment of the Constitution. It is next contended that the law is an attempt to unlawfully regulate foreign commerce, which, by the Constitution of the United States, is placed wholly within the control of the Federal Congress. That a state may not pass laws directly regulating foreign or interstate commerce has frequently been held in the decisions of this court. But, while this is true, it has also been held in repeated instances that laws passed by the states in the exertion of their police power, not in conflict with laws of Congress upon the same subject, and indirectly or remotely affecting interstate commerce, are nevertheless valid laws. Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. Rep. 132; Asbell v. Kansas, 209 U. S. 251, 52 L. ed. 778, 28 Sup. Ct. Rep. 485. In the case of Geer v. Connecticut, 161 U. S. 519, 40 L. ed. 793, 16 Sup. Ct. Rep. 600, the plaintiff in error was convicted for having in his possession game birds killed within the state, with the intent to procure transportation of the same beyond the state limits. It was contended that this statute was a direct attempt by the state to regu late commerce between the states. It was held that the game of the state was pecul iarly subject to the power of the state, which might control its ownership for the common benefit of the people, and that it was within the power of the state to prohibit the transportation of game killed within its limits beyond the state, such authority be ing embraced in the right of the state to | from the states the right to make reasonable confine the use of such game to the people of the state. After a discussion of the pecullar nature of such property, and the power of the state over it, Mr. Justice White, who delivered the opinion of the court in that case, said: laws concerning the health, life, and safety of their citizens, although such legislation might indirectly affect foreign or interstate commerce; and the general statement in Sherlock v. Alling, 93 U. S. 99, 23 L. ed. 819, was quoted with approval: "And it may be said generally, that the legislation of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, *or engaged in commerce, foreign or interstate, or in any other pursuit." It is true that in the case of Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, it was held that a state law directly prohibiting the introduction in interstate commerce of a healthful commodity for the purpose of thereby preventing the traffic in adulterated and injurious articles within the state was not a "Aside from the authority of the state, derived from the common ownership of game and the trust for the benefit of its people which the state exercises in relation thereto, there is another view of the power of the state in regard to the property in game, which is equally conclusive. The right to preserve game flows from the undoubted existence in the state of a police power to that end, which may be none the less efficiently called into play because by doing so interstate commerce may be remotely and indirectly affected. Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; Hall v. De Cuir, 95 U. S. 485, 24 L. ed. 547; Sherlock v. Alling, 93 U. S. 99, 103, 23 L. ed. 819, 820; Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23. Indeed, the source of the police pow-legitimate exercise of the police power. But, er as to game birds (like those covered by the statute here called in question) flows from the duty of the state to preserve for its people a valuable food supply. Phelps v. Racey, 60 N. Y. 10, 19 Am. Rep. 140; Ex parte Maier and Magner v. People, ubi supra, and the cases there cited. The exercise by the state of such power therefore comes directly within the principle of Plumley v. Massachusetts, 155 U. S. 461, 473, 39 L. ed. 223, 227, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154. The power of a state to protect, by adequate police regulation, its people against the adulteration of articles of food (which was, in that case, maintained), although, in doing so, commerce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the state, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the state, and subject to the conditions which it may deem best to impose for the public good." in that case, there was a direct, and, it was held, unlawful, interference with interstate commerce as such. In the case at bar the interference with foreign commerce is only incidental, and not the direct purpose of the enactment for the protection of the food supply and the domestic game of the state. It is provided in the New York statutes that game shall be taken only during certain seasons of the year; and to make this provision effectual it is further provided that the prohibited game shall not be possessed within the state during such times; and, owing to the likelihood of fraud and deceit in the handling of such game, the possession of game of the classes named is likewise prohibited, whether it is killed within or without the state. Such game may be legally imported during the open season, and held and possessed within the state of New York. It may be legally held in the closed season upon giving bond, as provided by the statute against its sale. Incidentally, these provisions may affect the right of one importing game to hold and In the case of Piumley v. Massachusetts, dispose of it in the closed season, but the referred to in the opinion just cited, it was effect is only incidental. The purpose of held that a law of the state of Massachu- the law is not to regulate interstate comsetts which prevented the sale of oleomarga- | merce, but, by laws alike applicable to forrine colored in imitation of butter was a legal exertion of police power on the part of the state, although oleomargarine was a wholesome article of food, transported from The New York court of appeals further another state; and this upon the principle held that the so-called Lacey act (31 Stat. that the Constitution did not intend, in at L. 187, chap. 553, U. S. Comp. Stat. 1901, conferring upon Congress an exclusive power p. 290) relieved the regulation of the obto regulate interstate commerce, to takejection in question because of the consent eign and domestic game, to protect the people of the state in the right to use and enjoy the game of the state. |