New York ex rel Silz v. Hesterberg/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 1st to July 31st, both inclusive. Such birds 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.'

'The close season for grouse shall be from December 1st to September 15th, both inclusive.' As amended by § 2, chapter 317, Laws of 1902.

'1. 'Grouse' includes ruffed grouse, partridge, and every member of the grouse family.'

'Plover, curlew, jacksnipe, Wilsons, commonly known as English snipe, yellow legs, 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 to July 15th, both inclusive.' As amended by § 2, chapter 588, Laws 1904.

'Wherever in this act the possession of fish or game, or the flesh of any animal, bird, or fish is prohibited, reference is had equally to such fish, game, or flesh coming from without the state as to that taken within the state: Provided, nevertheless, That, if there by any open season therefor, any dealer therein, if he has given the bond herein provided for, may hold during the close season such part of his stock as he has on hand undisposed of at the opening of such close season. Said bond shall be to the people of the state, conditioned that such dealer will not, during the close season ensuing, sell, use, give away, or otherwise dispose of any fish, game, or the flesh of any animal, bird, or fish which he is permitted to possess during the close season by this section; that he will not, in any way, during the time said bond is in force, violate any provision of the forest, fish, and game law; the bond may also contain such other provisions as to the inspection of the fish and game possessed as the commission shall 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 court of appeals the final order and judgment 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.

The alleged errors relied upon by the plaintiff in error for reversal of the judgment below are: First, that the provisions of the game law in question are contrary to the 14th Amendment of the Constitution of the United States, in that they deprive the relator, and others similarly situated, of their liberty and property without due process of law. Second, that the provisions of the law contravene the Constitution of the United States, in that they are an unjustifiable interference with and regulation of interstate and foreign commerce, placed under the exclusive control of Congress by § 8, article 1, of the Federal Constitution. Third, that the court below erred in construing the act of Congress, commonly known as the Lacey act, which relates to the transportation in interstate commerce of game killed in violation of local laws. 31 Stat. at L. chap. 553, p. 187, U.S.C.omp. Stat. 1901, p. 290.

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 the plover and grouse found in that state. And this is true when they are cooked and ready for the table. The birds were sound, wholesome, and valuable articles of food, and recognized as articles of commerce in 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 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 oftenexerted 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 local game during the closed season it has 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 taking 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 regulate commerce between the states. It was held that the game of the state was peculiarly 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 being embraced in the right of the state to confine the use of such game to the people of the state. After a discussion of the peculiar 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:

'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 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. 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 the case of Plumley v. Massachusetts, referred to in the opinion just cited, it was held that a law of the state of Massachusetts which prevented the sale of oleomargarine 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 another state; and this upon the principle that the Constitution did not intend, in conferring upon Congress an exclusive power to regulate interstate commerce, to take from the states the right to make reasonable 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 legitimate exercise of the police power. But, 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 dispose of it in the closed season, but the effect is only incidental. The purpose of the law is not to regulate interstate commerce, but, by laws alike applicable to foreign and domestic game, to protect the people of the state in the right to use and enjoy the game of the state.

The New York court of appeals further held that the so-called Lacey act (31 Stat. at L. 187, chap. 553, U.S.C.omp. Stat. 1901, p. 290) relieved the regulation of the objection in question because of the consent of Congress to he passage of such laws concerning such commerce, interstate and foreign, within the principles upon which the Wilson act was sustained by this court. Re Rahrer (Wilkerson v. Rahrer) 140 U.S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865.

In the aspect in which the game law of New York is now before this court we think it was a valid exertion of the police power, independent of any authorization thereof by the Lacey act, and we shall therefore not stop to examine the provisions of that act. For the reasons stated, we think the legislature, in the particulars in which the statute is here complained of, did not exceed the police power of the state, nor run counter to the protection afforded the citizens of the state by the Constitution of the United States.

Judgment affirmed. 

Notes