People v. Buffalo Fish Co.

The statute of this state for the protection of fish and game forbids any person, under pain of indictment and civil penalties, to either “ catch, kill or be possessed ” of certain fish named during what is called ■ the close season therein prescribed. The defendant-had in its possession during that season three different kinds of fish described in the statute, and this action was brought to recover the penalties denounced against offenders for violation of the law. The defendant in its answer alleged that its business is dealing in fresh fish on an extensive scale, and for that purpose maintains stores in various cities of the state; that it purchased the fish in question from dealers in Ontario and Manitoba, in Ganada, imported it into this state for sale at Buffalo under

The appeal presents two questions : First, with respect to the true meaning and scope of the statute, and, secondly, if it means what the plaintiff insists it does, with respect to its validity. I think that the statute is valid when reasonably and fairly construed with reference to its purpose and object. It is a penal statute and, therefore, not to be enlarged by construction or applied to cases not within the intention. We all agree that the purpose was to protect fish within the waters of this state. There is absolutely no room for disagreement • on that point. The legislature had no interest or purpose to protect fish in a foreign country or in some other state, and had no power in that regard. Statutes should be construed, if possible, so as to avoid absurdity and manifest injustice. (People v. Jaehne, 103 N. Y. 182 .) They should receive such construction as to render them practicable, just and reasonably convenient. (Rosenplaenter v. Roessle, 54 N. Y. 262 .) They should he construed to avoid, if possible, constitutional restrictions and understood in a sense within such limitations, rather than in conflict with them. (Sage v. City of Brooklyn, 89 N. Y. 189 .) Their validity must be determined solely with . reference to constitutional restrictions, and not by natural equity or justice. (Bertholf v. O’Reilly, 74 N.Y. 509 .) The. statute in question does not in terms, or by any reasonable implication, forbid a person to “ catch, kill or be possessed ” of fish in a foreign country. We all agree that our statute does not forbid a person to “ catch or kill ” fish of any kind in Manitoba, but it is said that when one brings the fish so caught or killed into this state the penalties of our statute attach to him at once. With all respect I am constrained to say that this is not a reasonable or tolerable interpretation of a penal statute. What it means and all it means is to forbid

It has long been the practice with keepers of summer hotels in this state to purchase at the proper season of the year in Canada, and in other states, game in large quantities and preserve it in cold storage for use in the close season, but if this statute is to receive the narrow and literal reading contended for they are all subject to indictment and civil penalties, since they are certainly possessed of this game during the forbidden period. There is scarcely a county of this state in which private fish ponds are not to be found, constructed and maintained by private persons on their own land, in which fish of the species described in the statute are kept and propagated. The fish in such ponds are private property. They have been reduced to possession and are within the dominion of the owner. Is it a violation of the statute for a person to catch or kill fish from his own private pond ? If it is, and the owner refrains from it during the close season, he will still violate the law, since he is possessed of the fish all the time, and the only way he can escape from the pains and penalties of the statute is to open the pond and let the fish out.

In the case at bar the statute is pushed by a literal reading to a point quite as unreasonable. In my opinion the law has no reference or application to a case where the fish have been imported from a foreign country. The conceded facts of this case take it out of the reason and policy of the law.

But it is argued that unless the statute is construed to inhibit the possession, during the close season, of fish

But if this is what the statute means and it is to be held that the conceded facts of this case are within its penal provisions, then I think it is clearly invalid, as in conflict with the commerce clause of the Federal Constitution. In this view of the case, the question and the only question is whether a state statute can be lawfully enacted to prohibit a citizen of this state from buying fish in Canada, importing it into this state under the revenue regulations of the United States, and exposing it for sale here. There is no question at all about the competency of the states, in the exercise of the police power, to enact game laws. The question is whether such laws can be so framed as to prohibit or restrict by penal provisions the importation of an article of food in universal use. That fish is such an article of food and the subject of foreign and interstate commerce, I assume no one will deny. That the purchase of fish for food in a foreign country and its importation here for sale, as such, is a branch of foreign commerce, is too clear for discussion. That the statute in question forbids the possession, and consequently the sale here, of an important article of food, is equally clear. Upon the construction contended for, the penal provisions of the statute absolutely inhibit the possession of the property at a season of the year when it is most in demand as an article of food. That the statute operates as a restriction upon the defendant’s business as an importer and dealer in fish, no one can doubt. That a statute so operating is in conflict with the exclusive power of Congress to regulate foreign commerce is n'ot questioned, and yet the contention is made with great earnestness that this statute is perfectly valid. The reasoning upon which this conclusion is based, if I understand it, is that the state has power to pass game laws, which no one denies; that the object of this statute was to protect game in this state and

I pass over the suggestion that the statute may be considered as a health law and applied as such, since the sport of fishing and hunting promotes health. The number of people that can indulge .in the sport are so few, comparatively, and the number who are obliged to buy fish in the market for food so large, relatively, that a defense of the law as an agent or handmaid of the public health cannot be taken quite seriously. Reasoning of that kind enables us to deceive ourselves with names and words, but fails to prove that a law which prohibits the sale of a healthy article of food, imported from a foreign country, is a valid exercise of power. It might as well be argued that a- statute prohibiting the sale or possession of-intoxicating liquors imported from abroad or from another

The law on the question has so often been stated by the highest court of the land, in accordance with the rules already stated, that much further discussion would be out of place. I will recall only a few of the more recent cases. In Bowman v. Chicago, etc., Railway Co. ( 125 U. S. 465 ) it was held that a state has no power to enact laws for the purpose of protecting its people against the evils of intemperance, which, in fact, operate to regulate commerce and forbid the importation into the state of intoxicating liquors without a certificate first obtained from the state authorities that the person to whom the goods are consigned is authorized to sell liquor under the state law, although the act was passed without any purpose of affecting interstate commerce, but as a police regulation to protect tbe health and morals of the people. The same doctrine was repeated in a more recent case. (Scott v. Donald, 165 U. S. 58 .) It was again held in Leisy v. Hardin ( 135 U. S. 100 ) that liquors are lawful subjects of commerce and a sta-te is without power to restrict or prohibit their importation from a sister state, nor, when imported, prohibit their sale. In Minnesota v. Barber ( 136 U. S. 313 ) it was held that a state statute, conceded to have been passed in good faith for the protection of the public health, which forbids the sale within the state of certain meat products, unless the animals were first inspected therein before they were killed, is unconstitutional and void. The same doctrine was subsequently reaffirmed. (Brimmer v. Rebman, 138 U. S. 78 .)

In Schollenberger v. Pennsylvania ( 171 U. S. 1 ) it was held that a statute of the state which forbids any person from

If there is any difference in principle, or any sound or reasonable distinction pertinent to the question now before us, between a statute intended to protect fish, and to foster and promote sport, or the pastime of hunting and fishing, and those to protect health by providing for an inspection of animals to be used as meat; to promote temperance and morality by forbidding the sale of liquors, or to suppress fraud by restricting the sale of imitation butter as food, I have not been able to perceive it, and I may add that no one has yet attempted to state it. If there is any distinction at all it would be against and not in support of a statute intended only to promote sport and pleasure. That is all laudable enough, but not so important to the body politic as laws to protect health, or suppress crime and promote morality ; all of which have been held to be void when so framed as to regulate or restrict interstate or foreign commerce. If the statute in question has the meaning and effect claimed for it, then its operation cannot be better illustrated than by the admitted facts of this case.

It seems that had the defendant at the time it imported fish also imported meat, liquors or oleomargarine, all the latter articles would be protected from state laws restricting their sale or possession by the commerce clause of the Constitution, while the fish would be subject to the penal restrictions of the game laws. I cannot believe that this is a reasonable or tenable view of the law applicable to this case.

It will not be profitable to review or discuss the game laws of other states or countries, or the decisions of local courts interpreting the same. It may be admitted that these states

Passing from the collection of state statutes for the protection of fish and game and the decisions of state courts as to their scope and effect, which occupy such a prominent place in the brief of the learned counsel for the People, it would perhaps be unjust to his argument to ignore two cases in the Federal court which he claims support his contention in some way. If they do, they are entitled to great weight and consideration, since the decisions of that court upon this question are the supreme law of the land. If they do not, it may be safely asserted that the learned counsel has found no controlling authority to support the proposition that a state may enact a statute which makes it a penal offense for the defendant to buy fish in the markets of Manitoba or Ontario in

Lawton v. Steele ( 152 U. S. 133 ). That case decided three propositions, none of which have any relation to this ease. (1) That the state had the power to regulate the manner of taking fish from waters within its jurisdiction. (2) That it had power to forbid fishing in such waters with nets. (3) That the nets destroyed in that casej being of comparatively small value, the state had power to declare them a nuisance and summarily abate them.

Geer v. Connecticut ( 161 U. S. 519 ). That case decides the following points: (1) That a staté statute which forbids the killing of game for the purpose of conveying the same beyond the limits of the state, or having it in possession with that intent, is valid. (2) That wild game within the state belongs to the whole people in common, and that legislation to prevent its extinction by conveying it out of the state was not in conflict with the Constitution. (3) That the individual who caught or killed it within the state acquired not an absolute, but a qualified property in it, since the use or enjoyment was limited to the boundaries of the state. (4) That since the use or enjoyment was limited to the people of the state it was not the subject of foreign or interstate commerce, though it was the subject of internal commerce. (5) Hot being the subject of foreign or interstate commerce, but merely of internal commerce, the statute was not in conflict with, the commerce clause of the Federal Constitution.

Every proposition embraced in these two cases may be and is freely admitted, but not one of them has any bearing on this case. In the first case it was held that the state had power to forbid fishing with nets, and in order to make the prohibition effectual, to declare the nets a nuisance and destroy them summarily without liability for compensation. In the second case it was held that, inasmuch as the state owned all

The main proposition, after all, in support of the plaintiff’s contention is based more upon policy and expediency than upon law. When fairly stated it is this : A statute to protect fish and game within the state does not protect unless it inhibits the .importation of fish and game from a foreign country or another state. When this proposition is carefully examined it will be found to be not only without any foundation in fact, or in experience, but when applied to cases like the one in hand the manifest, tendency is to defeat the very object of the law, which, of course, must be assumed to be protection. The individual who is permitted to hunt and fish in Canada or in another state, and bring with him here the fruits of his labor, will do very much less of hunting and fishing at home. If his warfare upon game or fish is carried on in a foreign country, or in another state, it would seem to be unwise to prevent him for the purpose of protecting fish and game at home. The game law that cuts off the supply from abroad diminishes rather than increases and protects the supply at home. Legislation that would prohibit the defendant from drawing a supply of fresh'fish from Canada during the close season simply furnishes a strong temptation to procure it from the waters of this state, even in violation of law. It is said that there is a passion inherent in man to kill or capture game in spite of penal laws forbidding it. If that be so it would seem to be wisdom to allow the passion to expend itself by permit

But all these considerations are subordinate and collateral to the main question, and when they are all weighed and examined we are brought back again to the real situation which the case presents. ■ Admitting, for the purposes of the argument, that the statute in question means just what the plaintiff’s counsel claims for it, the important fact still remains that Congress has permitted the defendant to import fresh fish upon payment of certain duties. It has paid the duties and complied with the Federal regulations, but when the article is brought here the state steps in and forbids the defendant to have it in its possession, and, of course, forbids the sale. This creates a direct conflict between the regulations of Congress and those of the state, and, consequently, the latter must yield to the former. The state had no power to extend its police legislation to such a transaction, and, of course, had no power to forbid what Congress had expressly permitted.

The case, in my opinion, was correctly decided by the courts below, and the judgment should be affirmed, with costs.

(dissenting). The questions certified for our decision are questions of law, which were raised below by the demurrer to the defenses interposed in the action. They are these: Are the facts that these fish were lawfully taken in the Dominion of Canada and that they were purchased there by the defendant and by it imported into the state of Mew York, upon payment of the duties fixed pursuant to the United States tariff laws, a good answer to the claim of the People that the Fisheries Law has been violated by having such fish in possession and is the state statute, for inhibiting the possession during the close season of this state, in conflict with the Federal Constitution, or with the Constitution of this state ?

It is not, nor can it be, seriously contended, as I think, that the law is in conflict with any of the provisions of the Constitution of the State. The case of Phelps v. Racey, ( 60 N. Y. 10 ), should be conclusive upon that point; whatever may be said of it upon the Federal question raised. The Federal question is whether the statute, in the . particular feature in question, violates, or infringes upon, the provisions of the Constitution of the United States, which authorize Congress to regulate commerce with foreign nations and between the states. The defendant’s contention upon that ground has been sustained below. The theory of Mr. Justice Lambert’s opinion at the Trial Term, which was adopted by the justices of the Appellate Division, is, as I apprehend it, that in making unlawful the possession of property, which has been imported under the sanction of the Federal tariff laws, the enactment of those provisions of the Fisheries statute by the legislature conflicted with the power vested in Congress under the commerce clause of the Federal Constitution referred to.

It was, also, observed by the learned justice, in his opinion, that “ the object of the statute is to protect the game fishes in the waters of the state, and that object is not promoted by depriving citizens of their property in fish, which have been caught and killed outside of the jurisdiction of the state, and which have become component parts of commerce, and the law cannot, therefore, be sustained as an exercise of the police power

In the court below, Phelps v. Racey was, deemed to be no longer controlling; for the reason that its principles have been “ overruled by subsequent judicial authority.” The reference is to that part of the opinion which suggests the proposition that, ■ in the absence of the enactment of a law by Congress, the states may regulate commerce among themselves. This doctrine, though supported by authority at the time, (Pierce v. New Hampshire, 5 How. [U. S.] 504), would seem to have been overruled by later cases, (Leisy v. Hardin, 135 U. S. 100 ; and Schollenberger v. Pennsylvania, 171 ib. 1); which .hold that laws inhibiting the receipt of an imported- commodity, or its disposition, amount essentially to a regulation of commerce with foreign nations, or among the states. I consider, however, that the Fisheries Law presents no conflict with the commerce clause of the Federal Constitution and that it is purely a governmental regulation, within the legitimate exercise of the police power of the state, relating to a matter essentially of internal policy-, as affected by a common public interest. It was quite unnecessary to the decision of Phelps v. Racey that Chief Judge Church should have expressed himself as he did upon the question of the bearing of the statute upon the commerce clause of the Federal Constitution, and it did not prevent the decision from being controlling upon the main question. There is no question of

In Geer v. Connecticut, ( 161 U. S. 519 ), a case arising under the Connecticut statute in relation to game birds, it was said that “ 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

The object of this statute was to protect and preserve certain game fishes during the breeding season; an object, manifestly, in which the people of the state may be presumed to be more or less keenly interested and which is recognized, as Judge Church observed, in all civilized countries. The purpose is to protect certain fishes within our jurisdiction, with no reference to those of other states, or countries. If they may be brought into the state within the close season here, as articles of commerce protected by United States laws and, therefore, placed beyond the reach of state laws declaring and regulating an internal policy, the result would be to facilitate evasions of the law and to make detection difficult, if not impossible. The general tendencies of human nature, it might, not inappropriately, be observed, are such as. to make necessary so strict a law as to render obedience to the mandate certain. The statute aims at preventing game fishes from being unlawfully taken and exterminated, and any regulation, which tends to secure that aim, should be regarded as a legitimate and fair exercise of the police power.'

Nor can I perceive that the doctrine of the oleomargarine cases is applicable. (Schollenberger v. Pennsylvania, 171 U. S. 1 .) There is a clear distinction between legislation, which discriminates with reference to a manufactured food product, not impure nor unhealthful, and legislation, which seeks to preserve the game fishes within the waters of the state, either as a natural article of food supply, or as a form of public sport. In the one case, there is an interference with commerce, as commerce; in the other case, commerce is not aimed at, but the preservation from extermination of the People’s property in game fishes. In the one case, there is interference with commercial dealing in a manufactured product, which, not unreasonably, may be said to lack justification in those ordinarily recognized principles upon which the police power of the state is properly exercised; while, in the other case, the preservation from extermination of the game fishes within, the jurisdiction of the state, reasonably, commends itself as legislation in the interest of preserving to the People a valuable natural and common food supply, which is deemed in danger of being destroyed and which it is, therefore, the duty of the state to prevent by the exercise of its

I think if importations may be excluded, which might affect the public health, that they may be excluded, if tending to endanger the enforcement of a law intended to protect and to preserve the People’s property rights in game and fishes.. There is no danger that legislative encroachments upon individual rights will be encouraged by such a decision. The presumption, which obtains in favor of the constitutionality of legislative acts, is not met here by any reasonable objection. The only, and the evident, object of the statute is to protect the game fishes mentioned during a season allowed for breeding and development and must surely be within the admitted range of the duties of state government.

It should be observed, in connection with the views expressed, that by section 190 of the Code of Civil Procedure our jurisdiction to review is confined to the questions certified. In this case, they demand of the court whether the • statute they refer to is in conflict with any provision of the State, or the Federal, Constitution. Other questions are not here; which might be suggested as affecting the construction of the statute in its effect upon some exercise of private rights, in one way or another.

I think that the judgment should be reversed and that the questions certified should be answered in the negative.

Parker, Oh. J., and Landon, J., concur with O’Brien, J., and Werner, J., concurs on first ground stated in opinion; Haight and Martin, JJ., concur with Gray, J., for reversal.

Judgment affirmed, and questions certified answered in the affirmative.