People v. Weinstock — 117 A.D. 168

Majority

p. 168

The People of the State of New York, Respondent, v . Leon C. Weinstock, Appellant.

First Department,

January 25, 1907.

Headnote

Game Law — section 27 of the Forest, Fish and Game Law construed — sale of foreign grouse without giving bond prohibited.

By the amendment to section 27 of the Forest, Fish and Game Law made by chapter 580 of the Laws of 1904, (he selling of foreign grouse and woodcock is prohibited unless the persons selling them or offering them for sale have given the bond required by said séctión. Said section, as amended, does not merely make the possession or sale of grouse without giving a bond presumptive evidence that they were taken within the State, but absolutely prohibits tile sale-of foreign birds without giving a bond.

Appeal by the defendant, Leon C. Weinstock, from a judgment-off the Supreme Court in favor off - the plaintiff, entered in the office -of the clerk of the county of New York on the 19th day of June, 1906, upon the decision of the court rendered after a trial before the co.urt without a jury at the New York Trial Term.

William Victor Goldberg■, for the appellant,

Robert O. Beatty and Selah B. Strong., for the respondent,

The judgment now appealed from was entered upon an agreed state of facts showing that on the 16.th, and 24th days of Novem- ■ her, 1905, defendant offered for sale and1 sold in the city of New York certain grouse which had not been taken in the State, of New York nor within' twenty-five miles of the State line, and that said defendant had not given the bond specified in and required by section 27 of the Forest, Fish, and Game Law of this State. (See. Laws of 1900, cliap. 20, added by Laws of 1903, chap. 291, and amd. by Laws of 1904,. chap. 580 and Laws of 1905, chap. 335.). The appeal raises a question as to. the proper constructión and effect tó be given to said section as amended by chapter 580 of the Laws of 1904 which, with the addition of the words “ or offered for sale ”. in the second , „ • ^ line of the italicized quotation below, was continued by chapter 335 of the Laws of 1905.

p. 169

Prior to that amendment the section prohibited the sale or offering for sale within this State of woodcock or grouse'taken in the State, and provided that the mere possession of such game birds by any person should be presumptive evidence that they were taken within the State, unless the person possessed of them had given the commissioner a bond conditioned that the person giving it should ■ not knowingly have in his possession or sell grouse or woodcock taken in the State, and containing,such other provisions as to inspection of grouse or woodcock possessed by him, evidence that the same were taken without the State, by way of bill of sale, way bill or otherwise, and generally such requirements as the commissioner might deem necessary for the enforcement of the section. As the statute then stood it provided a rule of presumption only; Grouse or woodcock'taken. within the State might not be sold at all, but ' similar game birds taken without the State might be sold within the State.

If a person was foimd in the possession of grouse or woodcock, the presumption whether or not they had been taken in this State depended upon whether or not a bond had been given. If no bond had been given the presumption was that they had been taken in the State, but if a bond had been given no such presumption attached. In 1904-the section was amended so that the first sentence thereof read as follows: “ Grouse and woodcock taken in this State shall not be sold or offered for sale within this State or carried without the State, nor shall grouse or woodeoelc talcen without the State be sold within the State except pursuant to the provisions of this section ”— the amendment consisting of the insertion of the italicized words. The contention of the appellant is that the section, as thus amended,- still furnishes only a rule of presumption, and, in effect, that the amendment has added nothing to the section as it formerly stood. With this view we are unable to agree.

Before amendment, thp section did not undertake in any case to forbid the sale of foreign grouse or woodcock. How it contains prohibitive words, and makes such sale or offering for sale unlawful except. under certain conditions. What is the exception ? The words of the statute are, “ except pursuant to the provisions of this section.” Beading further in the section we. find provision made for the giving of a bond by one who desires, to deal in foreign game, and

p. 170

this provision is, as we' think, the provision contemplated by the amendatory words. As we read the amended section, it was the purpose of the Legislature to forbid the sale of foreign grouse and woodcock unless the person selling them or offering them for sale had given the bond for which provision was made by the later words of the section. This reading is Certainly within the intention, and, as we think, within the words of the statute.

If construed as the appellant contends it should be, the amendment would be useless and meaningless. It might, of course, happen that the Legislature, in attempting to amend the statute, would by use of inapt words really effect no change in the meaning of the statute, but upon the plainest principles' we are not to give such a construction to an amendment, if the language used, is .open to a construction consonant with -the evident purpose of the amendment.

..The amendment under consideration is open . to a construction winch will effectuate its purpose, and we cannot, therefore, give it a construction which will defeat that purpose.

The judgment should be affirmed, with costs.

Patterson, P. J., McLaughlin, Laughlin and Hou&hton, JJ., concurred.

Judgment affirmed, with costs. Order filed.