Page:Bird-lore Vol 08.djvu/98

 74 Bird - Lore think it wise to confer on the state of New York, as well as on other states, a power (which is practically that of prohibition during the close season, at least for the purpose of sale) over the importation of par- tridges from New Jersey, Pennsylvania or Connecticut, is equally applicable to the importation of such birds from Canada. The obstacle to the successful enforcement of the game-law of the state would be as great in the one case as in the other; and, as Canada borders on the United States for a distance of three thousand miles, the prac- tical danger would be as great in the one case as in the other, whatever it might be in the case of an importation from Europe. But it is said that Congress permits the im- portation of foreign game and collects duty thereon, and it cannot have intended to al- low property thus imported to be confiscated. The proposition that Congress allows the importation of foreign game is true only in a restricted sense. By the ' Lacey Act' Congress determined to aid the states in the enforcement of their game-laws, but did not deem it wise to enact a game-law of its own, and this for the very obvious reason that the game-laws of the different states vary greatly, a variation justified in no small degree by varying climatic conditions. It would be unwise to prohibit entirely the importation of game into the country dur- ing a part of the year, when in some of the states the taking and consumption of such game is lawful. So it is said practically to the citizen : We do not prohibit the im- portation of foreign game, but subject it to the local laws, and you must see to it, at your risk, that you do not violate those laws. The term ' transported ' is used in the Wilson Act of Congress relative to in- toxicating liquors (enacted August 8, 1890) as in the present act. Vet, it seems incredi- ble that Congress intended to suffer the state of Maine to seize liquor in original packages when brought from Massachusetts but not when brought from Canada or Europe. The words of the section before us are sufficiently comprehensive to include all game brought into the state from what- ever place, and we do not think it profita- ble to enter into a verbal analysis, save in one respect. It is urged that the conclud- ing sentence of the section, ' This act shall not prevent the importation, transportation or sale of birds or bird plumage manufac- tured from the feathers of barn-yard fowl ' excludes all birds from its operation. We think not. The qualification ' manufac- tured from feathers of the barn-yard fowl ' applies as well to birds as to bird plumage. Birds mentioned in this sentence are plainly artificial birds, and so the Treasury Depart- ment of the United States has ruled. The case of Silz is somewhat different. Sub- stantially all the questions raised by the affi- davit, save one, are disposed of by the view we have already expressed. The exception is the statement in the affidavit ' that said imported Golden Plover and imported Grouse are different varieties of game-birds from the game-birds known as Plover and Grouse in the state of New York and from any birds native to America." They are different in form, shape, size, color and marking from the game-birds known as-the Plover and Grouse in the state of New York." "Of course, if the birds, the possession of which is charged against the relator, are not Grouse or birds of the Grouse family, then no crime is stated in the affidavit, and the relator should be discharged. But in view of the express allegation at the com- mencement of the affidavit that the defen- dant was possessed of one imported Grouse, we are inclined to the view that the state- ment quoted should be construed as mean- ing not that the bird so possessed was not a Grouse, but that it was a different variety of Grouse from that which is native to the state of New York. So construed this fact constitutes no defense, nor does the allega- tion that they are different in form, shape and color from .native birds. It was for the legislature to determine, in the protection of native game, how far it was necessary or wise to include within the penal provisions of the statutes birds of the same family and of a similar character, though differing in some respects. Of course, this statement is made within limits. To protect Pigeons, Turkeys could not be excluded. In the present case, however, we are clear that the legislature has acted within its power."