Geer v. Connecticut/Opinion of the Court

By the statutes of the state of Connecticut, referred to in the statement of facts, the open season for the game birds mentioned therein was from the 1st day of October to the 1st day of January. The birds which the defendant was charged with unlawfully having in his possession on the 19th of October, for the purpose of unlawful transportation beyond the state, were alleged to have been killed within the state after the 1st day of October. They were therefore killed during the open season. There was no charge that they had been unlawfully killed for the purpose of being transported outside of the state. The offense, therefore, charged, was the possession of game birds, for the purpose of transporting them beyond the state, which birds had been lawfully killed within the state. The court of last resort of the state held, in interpreting the statute already cited, by the light afforded by previous enactments, that one of its objects was to forbid the killing of birds within the state during the open season, for the purpose of transporting them beyond the state, and also additionally as a distinct offense to punish the having in possession, for the purpose of transportation beyond the state, birds lawfully killed within the state. The court found that the information did not charge the first of these offenses, and, therefore, that the sole offense which it covered was the latter. It then decided that the state had power to make it an offense to have in possession, for the purpose of transportation beyond the state, birds which had been lawfully killed within the state during the open season, and that the statute, in creating this offense, did not violate the interstate commerce clause of the constitution of the United States. The correctness of this latter ruling is the question for review. In other words, the sole issue which the case presents is, was it lawful, under the constitution of the United States (section 8, art. 1), for the state of Connecticut to allow the killing of birds within the state during a designated open season, to allow such birds, when so killed, to be used, to be sold, and to be bought for use, within the state, and yet to forbid their transportation beyond the state? Or, to state it otherwise, had the state of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the state, and forbid its transmission outside of the state?

In considering this inquiry, we, of course, accept the interpretation affixed to the state statute by the court of last resort of the state. The solution of the question involves a consideration of the nature of the property in game and the authority which the state had a right lawfully to exercise in relation thereto.

From the earliest traditions, the right to reduce animals ferae naturae to possession has been subject to the control of the law-giving power.

The writer of a learned article in the Repertoire of the Journal du Palais mentions the fact that the law of Athens forbade the killing of game (5 Rep. Gen. J. P. p. 307); and Merlin says (4 Repertoire deJurisprudence, p. 128) that 'Solon, seeing that the Athenians gave themselves up to the chase, to the neglect of the mechanical arts, forbade the killing of game.'

Among other subdivisions, things were classified by the Roman law into public and common. The latter embraced animals ferae naturae, which, having no owner, were considered as belonging in common to all the citizens of the state. After pointing out the foregoing subdivision, the Digest says: 'There are things which we acquire the dominion of, as by the law of nature, which the light of natural reason causes every man to see, and others we acquire by the civil law; that is to say, by methods which belong to the government. As the law of nature is more ancient, because it took birth with the human race it is proper to speak first of the latter. (1) Thus, all the animals which can be taken upon the earth, in the sea, or in the air,-that is to say, wild animals,-belong to those who take them, * *  * because that which belong to nobody is acquired by the natural law by the person who first possesses it. We do not distinguish the acquisition of these wild beasts and birds by whether one has captured them on his own property or on the property of another; but he who wishes to enter into the property of another to hunt can be readily prevented if the owner knows his purpose to do so.' Dig. bk. 41, tit. 1, De Adquir. Rer. Dom.

No restriction, it would hence seem, was placed by the Roman law upon the power of the individual to reduce game, of which he was the owner in common with other citizens, to possession, although the Institutes of Justinian recognized the right of an owner of land to forbid another from killing game on his property, as, indeed, this right was impliedly admitted by the Digest in the passage just cited. Inst. Bk. 2, tit. 1, § 12.

This inhibition was, however, rather a recognition of the right of ownership in land than an exercise by the state of its undoubted authority to control the taking and use of that which belonged to no one in particular, but was common to all. In the feudal as well as the ancient law of the continent of Europe, in all countries, the right to acquire animals ferae naturae by possession was recognized as being subject to the governmental authority and under its power, not only as a matter of regulation, but also of absolute control. Merlin, ubi supra, mentions the fact that although tradition indicates that, from the earliest day in France, every citizen had a right to reduce a part of the common property in game to ownership by possession, yet it was also true that, as early as the Salic law, that right was regulated in certain particulars. Pothier, in his treatise on Property, speaks as follows:

'In France, as well as in all other civilized countries of Europe, the civil law has restrained the liberty which the pure law of nature gave to every one to capture animals who, being in naturali laxitate, belong to no person in particular. The sovereigns have reserved to themselves, and to those to whom they judge proper to transmit it, the right to hunt all game, and have forbidden hunting to other persons. Some ancient doctors have doubted if sovereigns had the right to reserve hunting to themselves, and to forbid it to their subjects. They centend that, as God has given to man dominion over the beasts, the prince had no authority to deprive all his subjects of a right which God had given them. The natural law, say they, permitted hunting to each individual. The civil law which forbids it is contrary to the natural law, and exceeds, consequently, the power of the legislator, who, being himself submitted to the natural law, can ordain nothing contrary to that law. It is easy to reply to these objections. From the fact that God has given to human kind dominion over wild beasts it does not follow that each individual of the human race should be permitted to exercise this dominion. The civil law, it is said, cannot be contrary to the natural law. This is true as regards those things which the natural law commands or which it forbids; but the civil law can restrict that which the natural law only permits. The greater part of all civil laws are nothing but restrictions on those things which the natural law would otherwise permit. It is for this reason, although, by the pure law of nature, hunting was permitted to each individual, the prince had the right to reserve it in favor of certain persons, and forbid it to others. Poth. Trait e du Droit de Propriet e, Nos. 27-28.

'The right belongs to the king to hunt in his dominion. His quality of sovereign gives him the authority to take possession above all others of the things which belong to no one, such as wild animals. The lords and those who have a right to hunt hold such right but from his permission, and he can affix to this permission such restrictions and modifications as may seem to him good.' No. 32.

In tracing the origin of the classification of animals ferae naturae, as things common, Potheir moreover says:

'The first of mankind had in common all those things which God had given to the human race. This community was not a positive community of interest, like that which exists between several persons who have the ownership of a thing in which each have their particular portion. It was a community, which those who have written on this subject have called 'a negative community,' which resulted from the fact that those things which were common to all belonged no more to one than to the others, and hence no one could prevent another from taking of these common things that portion which he judged necessary in order to subserve his wants. Whilst he was using them, others could not disturb him; but when he had ceased to use them, if they were not things which were consumed by the fact of use, the things immediately re-entered into the negative community, and another could use them. The human race having multiplied, men partitioned among themselves the earth and the greater part of those things which were on its surface. That which fell to each one among them commenced to belong to him in private ownership, and this process is the origin of the right of property. Some things, however, did not enter into this division, and remain, therefore, to this day, in the condition of the ancient and negative community.' No. 21.

Referring to those things which remain common, or in what he qualified as the negative community, this great writer says:

'These things are those which the jurisconsults called 'res communes.' Marcien refers to several kinds,-the air, the water which runs in the rivers, the sea, and its shores. * *  * As regards wild animals, ferae naturae, they have remained in the ancient state of negative community.'

In both the works of Merlin and Pothier, ubi supra, will be found a full reference to the history of the varying control exercised by the law-giving power over the right of a citizen to acquire a qualified ownership in animals ferae naturae, evidenced by the regulation thereof by the Salic law, already referred to, exemplified by the legislation of Charlemagne, and continuing through all vicissitudes of governmental authority. This unbroken line of law and precedent is summed up by the provisions of the Napoleon Code, which declares (articles 714, 715): 'There are things which belong to no one, and the use of which is common to all. Police regulations direct the manner in which they may be enjoyed. The faculty of hunting and fishing is also regulated by special laws.' Like recognition of the fundamental principle upon which the property in game rests has led to similar history and identical results in the common law of Germany, in the law of Austria, Italy, and, indeed, it may be safely said in the law of all the countries of Europe. 1 Saint Joseph Concordance, p. 68.

The common law of England also based property in game upon the principle of common ownership, and therefore treated it as subject to governmental authority.

Blackstone, while pointing out the distinction between things private and those which are common, rests the right of an individual to reduce a part of this common property to possession, and thus acquire a qualified ownership in it, on no other or different principle from that upon which the civilians based such right. 2 Bl. Comm. 1, 12.

Referring especially to the common ownership of game, he says:

'But, after all, there are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences. Such, also, are the generality of those animals which are said to be ferae naturae or of a wild and untamable disposition, which any man may seize upon or keep for his own use or pleasure.' 2 Bl. Comm. 14.

'A man may lastly have a qualified property in animals ferae naturae-propter privilegium; that is, he may have the privilege of hunting, taking, and killing them in exclusion of other persons. Here he has a transient property in these animals usually called 'game' so long as they continue within his liberty, and he may restrain any stranger from taking them therein; but, the instant they depart into another liberty, this qualified property ceases. * *  * A man can have no absolute permanent property in these, as he may in the earth and land; since these are of a vague and fugitive nature, and therefore can only admit of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer.' 2 Bl. Comm. 394.

In stating the existence and scope of the royal prerogative, Blackstone further says:

'There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before,-the property of such animals, ferae naturae, as are known by the denomination of 'game,' with the right of pursuing, taking, and destroying them, which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. * *  * In the first place, then, we have already shown, and indeed it cannot be denied, that, by the law of nature, every man, from the prince to the peasant, has an equal of pursuing and taking to his own use all such creatures as are ferae naturae, and therefore the property of nobody, but liable to be seized by the first occupant, and so it was held by the imperial law as late as Justinian's time. * *  * But it follows from the very end and constitution of society that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.' 2 Bl. Comm. 410.

The practice of the government of England from the earliest time to the present has put into execution the authority to control and regulate the taking of game.

Undoubtedly, this attribute of government to control the taking of animals ferae naturae, which was thus recognized and enforced by the common law of England, was vested in the colonial governments, where not denied by their charters, or in conflict with grants of the royal prerogative. It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the constitution. Kent, in his Commentaries, states the ownership of animals ferae naturae to be only that of a qualified property. 2 Kent, Comm. 347. In most of the states, laws have been passed for the protection and preservation of game. We have been referred to no case where the power to so legislate has been questioned, although the books contain cases involving controversies as to the meaning of some of the statutes. Com. v. Hall, 128 Mass. 410; Com. v. Wilkinson, 139 Pa. St. 298, 21 Atl. 14; People v. O'Neil, 71 Mich. 325, 39 N. W. 1. There are also cases where the validity of some particular method of enforcement provided in some of the statutes has been drawn in question. State v. Saunders, 19 Kan. 127; Territory v. Evans, 2 Idaho, 634, 23 Pac. 115.

The adjudicated cases recognizing the right of the states to control and regulate the common property in game are numerous. In McCrady v. Virginia, 94 U.S. 395, the power of the state of Virginia to prohibit citizens of other states from planting oysters within the tide waters of that state was upheld by this court. In Manchester v. Massachusetts, 139 U.S. 240, 11 Sup. Ct. 559, the authority of the state of Massachusetts to control and regulate the catching of fish within the bays of that state was also maintained. See, also, Phelps v. Racey, 60 N. Y. 10; Magner v. People, 97 Ill. 320; American Exp. Co. v. People, 133 Ill. 649, 24 N. E. 758; State v. Northern Pac. Exp. Co., 58 Minn. 403, 59 N. W. 1100; State v. Rodman, 58 Minn. 393, 59 N. W. 1098; Ex parte Maier, 103 Cal. 476, 37 Pac. 402; Organ v. State, 56 Ark. 270, 19 S. W. 840; Allen v. Wyckoff, 48 N. J. Law, 93, 2 Atl. 659; Roth v. State, 51 Ohio St. 209, 37 N. E. 259; Gentile v. State, 29 Ind. 415; State v. Farrell, 23 Mo. App. 176, and cases there cited; State v. Saunders, ubi supra; Territory v. Evans, ubi supra.

While the fundamental principles upon which the common property in game rest have undergone no change, the development of free institutions had led to the recognition of the fact that the power or control lodged in the state, resulting from this common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good. Therefore, for the purpose of exercising this power, the state, as held by this court in Martin v. Waddell, 16 Pet. 410, represents its people, and the ownership is that of the people in their united sovereignty. The common ownership, and its resulting responsibility in the state, is thus stated in a well-considered opinion of the supreme court of California:

'The wild game within a state belongs to the people in their collective sovereign capacity. 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 traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good.' Ex parte Maier, ubi supra.

The same view has been expressed by the supreme court of Minnesota, as follows:

'We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the state, not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common.' State v. Rodman, supra.

The foregoing analysis of the principles upon which alone rests the right of an individual to acquire a qualified ownership in game, and the power of the state, deduced therefrom, to control such ownership for the common benefit, clearly demonstrates the validity of the statute of the state of Connecticut here in controversy. The sole consequence of the provision forbidding the transportation of game killed within the state, beyond the state, is to confine the use of such game to those who own it,-the people of that state. The proposition that the state may not forbid carrying it beyond her limits involves, therefore, the contention that a state cannot allow its own people the enjoyment of the benefits of the property belonging to them in common, without at the same time permitting the citizens of other states to participate in that which they do not own. It was said in the discussion at bar, although it be conceded that the state has an absolute right to control and regulate the killing of game as its judgment deems best in the interest of its people, inasmuch as the state has here chosen to allow the people within her borders to take game, to dispose of it, and thus cause it to become an object of state commerce, as a resulting necessity such property has become the subject of interstate commerce; hence controlled by the provisions of article 1, § 8, of the constitution of the United States. But the errors which this argument involves are manifest. It 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 imports 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. Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the state, under the provision in question, created internal state commerce, it does not follow that such internal commerce became necessarily the subject-matter of interstate commerce, and therefore under the control of the constitution of the United States. The distinction between internal and external commerce and interstate commerce is marked, and has always been recognized by this court. In Gibbons v. Ogden, 9 Wheat. 194, Mr. Chief Justice Marshall said:

'It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient, and is certainly unnecessary.

'Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of the state. The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally, but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself.'

So, again, in The Daniel Ball, 10 Wall. 564, this court, speaking through Mr. Justice Field, said:

'There is undoubtedly an internal commerce which is subject to the control of the states. The power delegated to congress is limited to commerce among the several states, with foreign nations and with the Indian tribes. This limitation necessarily excludes from the federal control commerce not thus designated, and, of course, that commerce which is carried on entirely within the limits of a state, and does not extend to or affect other states.'

The fact that internal commerce may be distinct from interestate commerce destroys the whole theory upon which the argument of the plaintiff in error proceeds. The power of the state to control the killing of and ownership in game being admitted, the commerce in game which the state law permitted was necessarily only internal commerce, since the restriction that it should not become the subject of external commerce went along with the grant, and was a part of it. All ownership in game killed within the state came under this condition, which the state had the lawful authority to impose; and no contracts made in relation to such property were exempt from the law of the state consenting that such contracts be made, provided only they were confined to internal, and did not extend to external, commerce.

The case in this respect is identical with Kidd v. Pearson, 128 U.S. 1, 9 Sup. Ct. 6. The facts there considered were, briefly, as follows: The state of Iowa permitted the distillation of intoxicating liquors for 'mechanical, medicinal, culinary, and sacramental purposes.' The right was asserted to send out of the state intoxicating liquors made therein, on the ground that, when manufactured in the state, such liquors became the subject of interstate commerce, and were thus protected by the constitution of the United States; but this court, through Mr. Justice Lamar, pointed out the vice in the reasoning, which consisted in presupposing that the state had authorized the manufacture of intoxicants, thereby overlooking the exceptional purpose for which alone such manufacture was permitted. So here the argument of the plaintiff in error substantially asserts that the state statute gives an unqualified right to kill game, when in fact it is only given upon the condition that the game killed be not transported beyond the state limits. It was upon this power of the state to qualify and restrict the ownership in game killed within its limits that the court below rested its conclusion, and similar views have been expressed by the courts of last resort of several of the states. In State v. Rodman, ubi supra, the supreme court of Minnesota said:

'The preservation of such animals as are adapted to consumption as food or to any other useful purpose is a matter of public interest, and it is within the police power of the state, as the representative of the people in their united sovereignty, to make such laws as will best preserve such game, and secure its beneficial use in the future to the citizens; and to that end it may adopt any reasonable regulations, not only as to time and manner in which such game may be taken and killed, but also imposing limitations upon the right of property in such game after it has been reduced to possession, which limitations deprive no person of his property, because he who takes or kills game had no previous right to property in it, and, when he acquires such right by reducing it to possession, he does so subject to such conditions and limitations as the legislature has seen fit to impose.' See, also, State v. Northern Pac. Exp. Co., supra.

So, also, in Magner v. People, ubi supra, the supreme court of Illinois said:

'So far as we are aware, it has never been judicially denied that the government, under its police powers, may make regulations for the preservation of game and fish, restricting their taking and molestation to certain seasons of the year, although laws to this effect, it is believed, have been in force in many of the older states since the organization of the federal government. * *  * The ownership being in the people of the state, the repository of the sovereign authority, and no individual having any property rights to be affected, it necessarily results that the legislature, as the representative of the people of the state, may withhold or grant to individuals the right to hunt and kill game, or qualify or restrict, as in the opinions of its members will best subserve the public welfare. Stated in other language, to hunt and kill game is a boon or privilege, granted either expressly or impliedly by the sovereign authority, not a right inherent in each individual; and consequently nothing is taken away from the individual when he is denied the privilege, at stated seasons, of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the state; and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state. But, in any view, the question of individual enjoyment is one of public policy, and not of private right.'

See, also, Ex parte Maier, 103 Cal. 476, 37 Pac. 402; Organ v. State, 56 Ark. 270, 19 S. W. 840. It is, indeed, true that in State v. Saunders, 19 Kan. 127, and Territory v. Evans, 2 Idaho, 634, 23 Pac. 115, it was held that a state law prohibiting the shipment outside of the state of game killed therein violated the interstate commerce clause of the constitution of the United States; but the reasoning which controlled the decision of these cases is, we think, inconclusive, from the fact that it did not consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus overlooked the authority of the state over property in game killed within its confines, and the consequent power of the state to follow such property into whatever hands it might pass, with the conditions and restrictions deemed necessary for the public interest.

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, ubi supra; Hall v. De Cuir, 95 U.S. 485; Sherlock v. Allings, 93 U.S. 99, 103; Gibbons v. Ogden, ubi supra. 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; Ex parte Maier, ubi supra; Magner v. People, ubi supra, and cases there cited. The exercise by the state of such power, therefore, comes directly within the principle of Plumley v. Com., 155 U.S. 461, 473, 15 Sup. Ct. 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.

Judgment affirmed.

Mr. Justice BREWER and Mr. Justice PECKHAM, not having heard the argument, took no part in the decision of this cause.