cases relating to commerce, as, for example, the enactment and enforcement of pilotage laws and fisheries in the navigable waters within the jurisdiction of a State(34), in regard to which the States can and do legislate. It has been held(35) that "the term 'due process of law,' as employed in the Constitution, applies only to the fundamental rights referred to in that instrument, and are inapplicable to mere privileges of legislative creation. As to these, the law of England furnished no precedent, but the law of their creation determines the terms and conditions of their enjoyment and by what process they shall terminate." If it be admitted that the decision of the court in Phelps v. Racey was erroneous in its holding, as to the power of the States to legislate upon subjects relating to commerce, it does not follow that on the principal question at issue the decision was incorrect. As a matter of fact, upon that point the decision has been repeatedly cited and followed by the highest State and federal courts, including the Court of Ap-provision of the Constitution. peals of the State of New York, and is sound in principle and is as good law to-day as when the decision was rendered. And, if as has been decided in cases hereafter noted, the taking of game or fish is a mere boon or privilege, it might well be that there is no property therein which is entitled to the protection of that The Buffalo Fish Company case was one involving a provision of the New York law, which made it unlawful, during the closed season, to "be possessed" of certain fish; and the answer in the case alleged that the fish in question were bought in Canada and imported into the United States for sale, the duty thereon having been paid, and that in so doing the defendant was lawfully engaged in commerce, the fish having been caught in Canada at a time when such taking was lawful, and that they were lawfully brought into the United States. This was held to be a good defense, the court basing its decision upon two propositions, the first being that the statute in question did not apply to fish caught at a time and place without the United States where such taking was lawful and lawfully transported into the United States; and the second being, even assuming that the statute applied to such a case, it was void as an attempt to regulate commerce. The case was heard before the nine judges of the Court of Appeals, and four of these dissented, holding the law valid on both grounds; on the first point five judges agreed, one judge not giving any opinion on the second point. So it would seem that the case can scarcely be taken as an authority on either point; certainly not on the second, because if a law is passed, which, in terms, applies to such a case, it may well be that the judge who did not unite in the decision on that point would uphold the law to its fullest extent. Considering the decision an authority on the first point, the objection can be overcome by amendment. This might not, however, be so obviated in regard to the second point, which is more serious. As the question is a federal one, involving the construction and application of certain provisions of the Constitution of the United States, already referred to, it is proper that the position of the courts should be stated, and, first, in regard to the fourteenth amendment. This provision does not prohibit the taking of property, but merely declares that it shall not be taken "without due process of law." (34) Manchester v. Massachusetts, 139 U. S. 240. But, admitting, for present purposes, that game reduced to possession in a lawful way, is property within the meaning of the term as so used, it may still be taken, provided it is done by due process of law; the meaning of that phrase is not always easily ascertained, but depends upon the circumstances of each case as it arises. It was defined and applied in a late case(36) involving the nature of property in dogs in the following language: "It is true that under the fourteenth amendment no State can deprive a person of life, liberty or property without due process of law; but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice and the extent to which it has been heretofore regarded as within the police power. So far as property is inoffensive or harmless it can only be destroyed by legal proceedings with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction. As was said in Jenkins v. Ballantyne (8 Utah, 245, 247): “The emergency may be such as not to admit of the delay essential to judicial inquiry and consideration or the subject of such action and process may be of such a nature or the conditions and circumstances in which the act must be performed to effect the protection and give effect to the law may be such as to render judicial inquiry and consideration impracticable." It is interesting to note in this connection that the Utah case above mentioned held that a dog was property within the meaning of the term as used in the Constitution, although the United States Supreme Court has not gone so far. In a case(37) involving the validity of a statute of the State of New York authorizing the summary destruction of nets used in illegal fishing, the same court held that the police power is universally conceded to include everything essential to the public safety, health and morals, and to justify the destruction or abatement by summary proceedings of whatever may be regarded as a public nuisance; and after enumerating a number of instances in which the power may be exercised, it was stated that beyond these the State may interfere whenever the public interests demand it, and in this particular a large (35) Dauphin v. Key, MacArthur R. 263. discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests, subject, of course, to the restrictions that it must appear that the interests of the public generally, as distinguished from those of a particular class, require such interference; and that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals; and the determination of the lawmaking power, as to the objects and means, is not final, but is subject to supervision by the courts. The court also reaffirmed its prior declaration(38) that the States had power to legislate in regard to game and fish, such legislation being within the police power, a principle now universally conceded; and it was also held that the provision of the statute in question authorizing the summary destruction of the nets was valid, the property not being of great value, the court saying: The power of the legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question, and in such case the legislature may annex to the prohibited act all the incidents of a criminal offense, including the destruction of property denounced by it as a public nuisance." 1 ne same language almost was used in a New York case(39); and in another case this was declared to extend to a prohibition of the sale of an article of food not in itself deleterious(40); and in a late case (41), containing almost the last declaration of the United States Supreme Court on the subject, it was stated that "it has been often said that the police power was not, by the federal Constitution, transferred to the nation, but was reserved to the States, and that upon them rests the duty of so exercising it as to protect the public health and morals. While, of course, that power cannot be exercised by the States in any way to infringe upon the powers expressly granted to congress, yet until there is some invasion of congressional power or of private rights secured by the Constitution of the United States, the action of the State in this respect is beyond question in the courts of the nation. In Barber v. Connolly (112 U. S. 27, 31). it was said: 'But neither the amendment - broad and comprehensive as it is-nor any other amendment was designed to interfere with the police power to prescribe regulations to promote health, peace, morals, education and good order of the people.' * Whatever course of conduct the legislature may adopt is in a general way conclusive upon all courts, State or federal. It is no part of the judicial function to determine the wisdom or folly of a regulation by the legislative body in respect to matters of a police. nature. But clearly the inquiry as to the reasonableness or propriety of the limits is a matter * * * * * (38) Smith v. Maryland. 18 How. 71; Holyoke Water Power Co. v. Lyman, 15 Wall. 500; McReady v. Virginia, 4 Otto. 391. (39) People v. West, 106 N. Y. 293. (40) People v. O'Neil, 110 Mich. 324. (41) L'Hote v. New Orleans, 177 U. S. 587. * * for legislative consideration, and cannot be the basis of judicial action. *The truth is that the exercise of the police power often works pecuniary injury but the settled rule of this court is that the mere fact of pecuniary injury does not warrant the overthrow of legislation of a police character." And the court cites with approval the following language from 1 Dillon on Municipal Corporations (sec. 141): "Laws and ordinances relating to the comfort, health, convenience, good order and general welfare of the inhabitants are comprehensively styled 'police laws and regulations.' It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbance. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. The citizen owns his property absolutely, it is true; it cannot be taken from him for any private use whatever without his consent, nor can it be taken for any public use without compensation; still he owns it subject to this restriction, namely, that it must be so used as not unreasonably to injure others, and the sovereign authority may by police regulation so direct the use of it that it shall not prove pernicious to his neighbors or the citizens generally." And, in commenting on this, the court said: “The learned author in these and accompanying sentences is discussing the rule where legislative action operates directly upon the property of the complainant and where injuries alleged to result are the direct consequence of legislative action. If, under such circumstances, the individual has no cause of action, a fortiori must the same be true when the injuries are not direct, but consequential — when his property is not directly touched by the legislative action, but is affected in only an incidental and consequential way." The latter clause quoted applies to cases where the use of certain instrumentalities is prohibited; the effect of the prohibition being merely an incident to the main object to be accomplished by the statute. Many other cases might be referred to, but it is unnecessary, as those cited serve to illustrate where the court stands. What has been said related to property in which the ownership is absolute, and which is subject only to the general police power; there is reason for believing that the rule would be much stronger in regard to game, the property in which, as already noted, is at most only qualified. This property in game, and its position before the law was under consideration by the United States Supreme Court in a case(42) involving the validity of a law of Connecticut, which, among other things, prohibited the transportation beyond the State of (42) Geer v. Connectient, supra game killed therein, although such killing was law- | personal property, provided they were returned for ful, and the court, in upholding the law, considered assessment, and that the assessed valuation should the nature of the property in game, holding as to game in a state of nature, the property was in the State for the benefit of its people; that a State, by its law-making power, could regulate or absolutely prohibit the taking of game, as it saw fit; that no one had any natural right to take game, such right being a mere boon or privilege which the legislature could grant or withhold at pleasure; and, quoting from a California case (43): "It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic and commerce in it, if deemed necessary for its protection or preservation, or the public good." And it was distinctly held that the law was a proper exercise of the police power, saying: 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 (citing authorities). Indeed, the source of the police power 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 (citing authorities). The exercise by the State of such power, therefore, comes directly within the principle of Plumley v. Massachusetts (155 U. S. 461, 473). 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." The expression in regard to interstate commerce is significant and will be noticed hereafter. In another case(44), the effect of which has often been misapprehended, the same court, in considering a question in relation to dogs, made some interesting observations. The case was one brought by the owner of a dog to recover damages for its death. Under a law of Louisiana it was provided that dogs owned by citizens of that State should be personal property and placed under the same guaranties of law as other (43) Ex parte Maier, supra. (44) Sentell v. R. R., supra. | be the limit of recovery in an action for death or injury to the animal; if not on the assessment-roll, however, they were not to be entitled to protection; there was also an ordinance of the city of New Orleans imposing a license, as a condition for their running at large. The defense was that the dog was neither listed nor licensed. In the lower court the plaintiff had judgment, which was reversed on appeal, and this reversal was affirmed by the United States Supreme Court, to which the case was taken on a writ of error. The court held that by the common law, as well as by the law of most, if not all, of the States, dogs are so far regarded as property that an action would lie for their conversion or injury; that, in the absence of a statute, they were not the subject of larceny; that the property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae in which until killed or subdued there is no property, and domestic animals, in which the right of property is perfect and complete. 'They are not considered as being upon the same plane with horses, cattle, sheep and other domestic animals, but rather in the category of cats, monkeys, parrots, singing birds and similar animals kept for pleasure, curiosity or caprice. They have no intrinsic value, by which we understand a value common to all dogs as such and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden for draft (except to a limited extent), nor for food. Acting upon the principle that there is but a qualified property in them and that, while private interests require that the valuable one shall be protected, public interests demand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will of the legislature and properly falling within the police Laws for the protection power of the several States. of domestic animals are regarded as having but a limited application to dogs and cats, and, regardless of statute, a ferocious dog is looked upon as hostis humani generis, and as having no right to his life which man is bound to respect.” The court held also that even if they were to be regarded as property in the fullest sense of the word, they would still be subject to the police power and might be destroyed or otherwise dealt with as, in the judgment of the legislature, is necessary for the the discretion of the legislature to say how far dogs protection of its citizens; that it was purely within shall be recognized as property and under what restrictions they shall be permitted to roam the streets. The distinction between dogs and other domestic animals is also illustrated by the rule that the owner of the latter is liable for all trespasses committed thereby without proof of negligence(45); while as to dogs proof of scienter is generally necessary (46). (45) Muller v. McKesson, 72 N. Y. 195. (46) Shaw v. Craft, 37 Fed. R. 317; Smith v. Donohue, 49 N.J.L. 548. The test as to whether an animal is the subject of larceny seems to be whether it is useful or good for food(47); but this seems rather unusual, in view of the faithfulness, as well as the well-known usefulness of dogs in general. A dog alive may not be the subject of larceny; he may be so after death if his flesh or hide be of value (48). Ordinarily, wild animals, reduced to possession and upon which labor, representing value, has been bestowed, are the subject of larceny; so held in regard to a fur-bearing animal caught in a trap(49); but it was held otherwise by another court; erroneously, it would seem(50). Fish in private waters are still under the control of the legislature(51). And wild game caught or killed contrary to law remains the property of the State and may be reclaimed by it as the true owner(52). And game killed on an Indian reservation by an Indian and by him sold to another Indian, by whom it is taken off the reservation, with the intention of selling it outside the State, becomes, when off the reservation, subject to the State laws, though the killing was lawful(53). It is apparent, from what has been said, that a law which expressly prohibits the possession during the closed season of game, no matter where or when captured, is a reasonable and valid exercise of the police power; that the necessity for or the wisdom or expediency of such a law is for the legislature to determine, and that while the United States Supreme Court has not expressly passed upon the question, it has done so, in effect, and has stamped with its approval such a law by which it has said in a general way in regard to laws of a similar nature. That such laws are necessary for the protection of the game of a State is a matter of common knowledge. The error into which courts which have held the contrary have been drawn arose from a misunderstanding of the nature of the property in game, dead or alive; and in an attempt, as it seems, of the judicial branch of the government to usurp the prerogative of the legislative branch in deciding questions of policy and expediency. Fortunately that cannot be said of the federal Supreme Court in regard to its treatment of this subject. No game or fish law which has been passed upon by it but has been upheld to its fullest extent. A brief statement only is necessary to show that the provisions of the Constitution preserving to citizens the equal protection of the law and prohibiting the States from making or enforcing any law abridging the privileges or immunities of citizens of the United States are not infringed by the class of laws under consideration. (47) Bl. Com. 292-3; Harvey v. Com., 23 Grattan (Va.) 941. (48) Rex v. Halloway, 11 E. C. L. 341; Vantreese v. McGee (Ind.), 60 N. E. 318. (49) State v. House, 65 N. Car. 315. (50) Norton v. Ladd, 5 N. H. 203. (51) People v. Doxtater, 75 Hun, 472. (52) Thomas v. N. P. Express Co., 73 Minn. 185. (53) Selkirk v. Stevens, 72 Minn. 335. It has been decided that a State can prohibit the use of oyster beds in the waters of the State by citizens of other States; that as fish are the common property of the people of the State, a citizen of another State is not invested by the Constitution with any right therein(54). The clause of the Constitution in question only applies to such rights as are in their nature fundamental, which belong of right to the citizens of all free governments(55). And a State may distinguish, select and classify objects of legislation, and necessarily this power must have a wide range of discretion(56). On a more general subject, and one in regard to which no question of qualified property arose, it was held that regulations respecting the pursuit of a lawful trade or business being an exercise of the police power are within the authority of the State and form no subject for federal interference, unless they are SO utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily and in a manner wholly arbitrary, interfered with or destroyed without due process of law(57). And a State may lawfully impose a license for the privilege of hunting upon citizens of other States, which is not imposed on its own citizens(58). It remains to be seen whether such legislation contravenes the constitutional provision in regard to commerce. As has been already noted, the court held in the case referred to(59), when the question was raised and carefully considered, that a statute which allowed the taking of game and its use and disposal by citizens of Connecticut, within its borders, but prohibited its transportation beyond the State, was a valid law; that the State had a right to say that a thing which belonged to all the people in common, while it might be an article of merely State or internal commerce as among the people of a State, yet could never become an article of interstate commerce. The distinction between internal or purely State commerce and interstate commerce was clearly defined. The court, it is true, did not, in express terms, decide that game under some circumstances might not be an article of interstate commerce; but it is worth while to examine carefully the language of the court, for it seems apparent that enough was said in that case to sustain, and, perhaps, give practical application to the declaration of Chief Justice Marshall (60), that "that which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the State;" and, as it appears from the language already (54) McCready v. Virginia, 94 U. S. 391. (55) Carfield v. Coryell, 4 Wash. C. C. 380; Scott v. Sandford, 60 U. S. 773. (56) Magown v. Bark, 170 U. S. 293, and cases cited. (57) Gundling v. Chicago, 177 U. S. 183. (58) In re Eberle, 98 Fed. R. 295. (59) Geer v. Connecticut, supra. (60) Gibbon v. Ogden, 9 Wheat. 189; see also Presser v. Illinois, 111 U. S. 252. quoted, that game laws are within the police power, the solution of the problem does not seem difficult. Before quoting further from the case referred to, some observations, of a general nature, will be proper. The application of the doctrine of the "original package cases" to this class of legislation seems not to have been claimed, nor is its bearing on the question apparent; but it is worth while to look at the cases on the subject. 1 tection of law, can be acquired through the violation of a statute; so that if each State will pass a statute prohibiting the export of game, the field will be pretty well covered, except as to game imported from abroad. Returning, now, to the leading case(73), the court said, on this subject of game being an article of commerce: "It was said in the discussion at the bar, although it be conceded that the State has an absolute right to control and regulate the killing It was early held that the right to import included of game as its judgment deems best in the interest To overcome the effect of the "original package" decisions, congress passed an act(64), the "Wilson Bill," so-called, whereby the State regulations in regard to liquors were made applicable as soon as the article came within the State, whether in the original package or not; and this act was assailed as being unconstitutional, but was held valid(65). of its people, inasmuch as the State has chosen to the right to sell(61). It was also held that a State allow the people within her borders to take game, might absolutely prohibit the manufacture within its limits of liquor, and could prohibit the sale to dispose of it and thus cause it to become an object of State commerce, as a resulting necessity therein of liquors so manufactured(62); but that such property has become the subject of interstate liquor, being a well-recognized article of commerce | and property, in the ordinary sense, its importation United States Constitution (art. 1, sec. 8). But the commerce, hence controlled by the provisions of from another State and its sale in the original packerrors which this argument involves are manifest. It ages could not be prohibited(63). presupposes that where the killing of game and its sale within the State are allowed, it thereby becomes commerce in the legal meaning of that word. In view of the authority of the State to affix conditions to the killing and sale of game, predicated as is this power on the peculiar nature of such property and its common ownership by all the citizens of the State, it may well be doubted whether commerce is created by an authority given by a State to reduce game within its borders to possession, provided such game be not taken, when killed, without the jurisdiction of the State. The common ownership imparts the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose. The qualification which forbids its removal from the State necessarily entered into and formed part of every transaction on the subject and deprived the mere sale or exchange of these articles of that element of freedom of contract and of full ownership which is an essential attribute of commerce." While a State cannot exclude an article which has been generally recognized by congress and by the usages of trade as an article of commerce, if, in itself healthful, or an article of food (66), yet it can prohibit the manufacture and sale within its limits of an article, healthful in itself, which might become an article of commerce(67); and the manufacture may be prohibited, even though its purpose is for export(68); the intent of the manufacturer cannot make it an article of interestate or foreign commerce(69). It was said that when a commodity has begun to move as an article of trade from one State to another, commerce in that commodity has And in another passage, already quoted, in speakcommenced(70), and that any carriage of goods ing of the police power of the State, the court held which crosses a State line is commerce(71). As that such power could be exercised in a case of this the State can forbid any commerce or traffic in nature, "even though commerce might be remotely game(72), it would seem that if its export is for- affected.' bidden, the person who receives it from a State forbidding such export, necessarily violates the law, and can get no valid title to such game as property. even in another State, particularly if the possession of such game is prohibited by the laws of the State in which he resides. No right, entitled to the pro (61) Brown v. Maryland, 12 Wheat. 447. (62) Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1. In view of what was said in that case there is little doubt that the court would sustain a law against "having in possession," even though it apply to game lawfully taken in another State or outside the limits of the United States. If a State can lawfully permit the killing of game within its borders and allow traffic therein, and yet say to the purchaser, as well as the first-taker, that he shall not dispose of the (63) Bowman v. R. R., 125 U. S. 465; Leisey v. Hardin, 135 U. s. property by transporting it beyond the State, it 100. (64) Stat. at L. 313. (65) In re Rohrer, 140 U. S. 545. (66) Schollenberger v. Pennsylvania. 171 U. S. 1. (67) Powell v. Penna., 127 U. S. 678; Plumley v. Massachusetts, | 155 U. S. 462. (68) Kidd v. Pearson, supra. (69) U. S. v. E. C. Knight Co., 156 U. S. 1. (79) The Daniel Ball, 10 Wall. 557. (71) Ex parte Koehler, 30 Fed. R. 869. (72) Geer v. Conn. supra.; Ex parte Maier, supra. would seem that a law applied to the possession during the closed season of foreign-killed game would also be valid. This would certainly be true if the laws of every country forbid the export of game; for the court in the Geer case cited says, in one place, in speaking of game: "And which can never be the object of commerce, except with the consent of the State and (73) Geer v. Connecticut, supra. |