Geer v. Connecticut/Dissent Harlan

Mr. Justice HARLAN, dissenting.

The statutes of Connecticut declare that: 'Every person who shall buy, sell, expose for sale, or have in his possession for the purpose, or who shall hunt, pursue, kill, destroy or attempt to kill any woodcock, quail, ruffled grouse, called partridge, or gray squirrel between the first day of January and the first day of October, the killing or having in possession of each bird or squirrel to be deemed a separate offense, * *  * shall be fined not more than $30.' Gen. St. Conn. § 2530. They also provide that: 'No person shall, at any time kill any woodcock, ruffled grouse or quail for the purpose of conveying the same beyond the limits of the state; or shall transport or have in his possession, with intention to procure the transportation beyond said limits, any such birds killed within this state. The reception by any person within this state of any such bird or birds for shipment to a point without the state shall be prima facie evidence that said bird or birds were killed within the state for the purpose of carrying the same beyond its limits.' Id. § 2546.

The plaintiff in error was not charged with having in his possession game that had been killed 'for the purpose of conveying the same beyond the limits of the state.' It is admitted that the game in question was lawfully killed; that is, was killed during what is called the 'open season.' But the charge was that the defendant unlawfully received and had in his possession, with the wrongful and unlawful intent to procure the transportation of the same beyond the limits of the state, certain woodcock, ruffled grouse, and quail killed within the state after the 1st day of October.

I do not question the power of the state to prescribe a period during which wild game within its limits may not be lawfully killed. The state, as we have seen, does not prohibit the killing of game altogether, but permits hunting and killing of woodcock, quail, ruffled grouse, and gray squirrels between the 1st day of October and the 1st day of January. The game in question having been lawfully killed, the person who killed it and took it into his possession became the rightful owner thereof. This, I take it, will not be questioned. As such owner he could dispose of it by gift or sale, at his discretion. So long as it was fit for use as food, the state could not interfere with his disposition of it, any more than it could interfere with the disposition by the owner of other personal property that was not noxious in its character. To hold that the person receiving personal property from the owner may not receive it with the intent to send it out of the state is to recognize an arbitrary power in the government which is inconsistent with the liberty belonging to every man, as well as with the rights which inhere in the ownership of property. Such a holding would also be inconsistent with the freedom of interstate commerce which has been established by the constitution of the United States. If the majority had not held differently in the present case, I should have said that discussion was unnecessary to show the soundness of the propositions just stated. But it seems that if the citizen, whether residing in Connecticut or elsewhere, finds in the markets of one of the cities or towns of that state game, fit for food, that has been lawfully killed, and is lawfully in the possession of the keeper of such market, he may, without becoming a criminal, buy such game, and take it into his possession, provided his intention be to eat it, or to have it eaten, in Connecticut. But he will subject himself to a fine, as well as to imprisonment upon his failing to pay such fine, if he buy and take possession of such lawfully killed game, with intent to send it to a friend in an adjoining state.

The court cites McCready v. Virginia, 94 U.S. 395, in which it was held that Virginia could restrict to its own citizens the privilege of planting oysters in the streams of that state, the soil under which was owned by it. But I cannot believe that it would hold that oysters which had been lawfully taken out of such streams, and which had been lawfully planted, could not be purchased in Virginia, with the intent to ship them to another state. This court, in Plumley v. Massachusetts, 155 U.S. 461, 15 Sup. Ct. 154,-another of the cases cited by the majority, sustained as valid a statute of Massachusetts enacted to prevent deception in the manufacture and sale in that state of imitation butter, and which prohibited the sale of oleomargarine artificially colored so as to cause it to look like genuine yellow butter. But I cannot suppose that this court will ever hold that a state could make it a crime to purchase, with the intent to send it to another state, oleomargarine or genuine yellow butter that had been lawfully manufactured within its limits.

Believing that the statute of Connecticut, in its application to the present case, is not consistent with the liberty of the citizen or with the freedom of interstate commerce, I dissent from the opinion and judgment of the court.