Geer v. State of Connecticut

• Citation: 16 S.Ct. 600,161 U.S. 519,40 L.Ed. 793
• Decision Date: 02 March 1896
• Docket Number: No. 87,87
• Parties: GEER v. STATE OF CONNECTICUT
• Court: United States Supreme Court

161 U.S. 519

16 S.Ct. 600

40 L.Ed. 793

GEER

v STATE OF CONNECTICUT.

No. 87.

March 2, 1896.

Information by the state of Connecticut against Edward M. Geer for violation of the game law. A conviction was affirmed by the supreme court of errors of the state, and defendant brings error. Affirmed.

The statutes of the state of Connecticut provide (section 2530, Revision 1888):

'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.'

It is further by the statute of the same state provided (section 2546):

'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 possession, with intention to procure the transportation beyond said limits, of 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.'

An information was filed against the plaintiff in error in the police court of New London, Conn., charging him with, on the 19th day of October, 1889, unlawfully receiving and having in his possession, with the wrongful and unlawful intent to procure the transportation beyond the limits of the state, certain woodcock, ruffled grouse, and quail, killed within this state after the 1st day of October, 1889. The trial of the charge resulted in the conviction of the defendant, and the imposing of a fine upon him. Thereupon the case was taken by appeal to the criminal court of common pleas. In that court the defendant demurred to the information, on the ground, among others, that the statute upon which that prosecution was based violated the constitution of the United States.

The demurrer being overruled, and the defendant declining to answer over, he was adjudged guilty, and condemned to pay a fine and costs, and to stand committed until he had complied with the judgment. An appeal was prosecuted to the supreme court of errors of the state. The defendant on the appeal assigned the following errors:

'The court erred——

'First. In holding that the allegations contained in the complaint constitute an offense in law.

'Second. In holding that said complaint was insufficient in the law without an allegation that the birds therein mentioned were killed in this state for the purpose of conveying the same beyond the limits of this state.

'Third. In refusing to hold that so much of section 2546 of the General Statutes, under which this complaint is brought, as may be construed to forbid the transportation from this state of the birds therein described, lawfully killed, and permitted by the laws of the state to become the subject of traffic and commerce, is unconstitutional and void.

'Fourth. In refusing to hold that so much of said section as may be construed to forbid the receiving and having in possession, with intent to procure the transportation thereof to another state, birds therein described, lawfully killed, and permitted by the laws of this state to become the subject of traffic and commerce, is unconstitutional and void.

'Fifth. In holding that the defendant is guilty of an offense under said section if such birds were lawfully killed in this state, and were bought by the defendant in the markets of this state as articles of property, merchandise, and commerce, and had begun to move as an article of interstate commerce.

'Sixth. In not rendering judgment for defendant.'

In the supreme court the conviction was affirmed. The case is reported in 61 Conn. 144, 22 Atl. 1012, and to this judgment of affirmance, this writ of error is prosecuted.

Mr. Justice Field and Mr. Justice Harlan dissenting.

H. A. Hull, for plaintiff in error.

Solomon Lucas, for the State.

Mr. Justice WHITE, after stating the case, delivered the 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 lat- ter. 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...