Commonwealth v. Patsone

• Decision Date: 20 March 1911
• Docket Number: 20
• Citation: 79 A. 928,231 Pa. 46
• Parties: Commonwealth v. Patsone, [*] Appellant
• Court: Pennsylvania Supreme Court

79 A. 928

231 Pa. 46

Commonwealth v. Patsone, ^[*] Appellant

No. 20

Supreme Court of Pennsylvania

March 20, 1911

Argued January 16, 1911 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal, No. 20, Oct. T., 1911, by defendant, from judgment of Superior Court, April T., 1910, No. 162, affirming judgment of Q.S. Allegheny Co., Oct. T., 1909, No. 27, affirming a summary conviction in case of Commonwealth v. Joseph Patsone. Affirmed.

Indictment of an unnaturalized foreign-born resident for having in his possession a double-barrel shotgun.

The facts of the case appear in the opinion of ORLADY, J., as follows:

The defendant, an unnaturalized foreign-born resident of this commonwealth, was adjudged guilty of violating the provisions of the Act of May 8, 1909, P.L. 466, -- in owning and having in his possession a double-barreled shotgun. The facts are not in dispute, and it is conceded tat the proceedings in the summary conviction before the justice of the peace, and on appeal in the court of quarter sessions, were regular. The principal contention is, that the provisions of this act are in violation of the stipulations of the fourteenth amendment of the federal constitution, viz.: "Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The act in question is entitled: "An act to give additional protection to wild birds and animals and game, within the commonwealth of Pennsylvania; prohibiting the hunting for, or capture or killing of such wild birds or animals or game by unnaturalized foreign-born residents; forbidding the ownership or possession of shotgun or rifle by any unnaturalized foreign-born resident, within the commonwealth, and prescribing penalties for violation of its provisions." The first section provides: "It shall be unlawful for any unnaturalized foreign-born resident to hunt for or capture or kill, in this commonwealth, any wild bird or animal, either game or otherwise of any description, excepting in defense of person or property; and to that end, it shall be unlawful for any unnaturalized foreign-born resident within this Commonwealth to either own or be possessed of a shotgun or rifle of any make. Each and every person violating any provision of this section shall upon conviction thereof, be sentenced to pay a penalty of twenty-five dollars for each offense, or undergo imprisonment in the common jail of the county for the period of one day for each dollar of penalty imposed: Provided, that in addition to the above-named penalty, all guns of the before-mentioned kinds found in the possession or under control of an unnaturalized foreign-born resident shall, upon conviction of such person, or upon his signing a declaration of guilt as prescribed by this act, be declared forfeited to the Commonwealth of Pennsylvania, and shall be sold by the Board of Game Commissioners as hereinafter directed." The third section provides: "That the possession of a shotgun or rifle at any place outside of buildings within this Commonwealth, by an unnaturalized foreign-born resident, shall be conclusive proof of a violation of the provisions of section one of this act, and shall render any person convicted thereof liable to the penalty as fixed by said section." And the fourth section: "That the presence of a shotgun or rifle in a room or house, or building or tent, or camp of any description, within this Commonwealth, occupied or controlled by an unnaturalized foreign-born resident, shall be prima facie evidence that such gun is owned or controlled by the person occupying or controlling the property in which such gun is found, and shall render such person liable to the penalty imposed by section one of this act."

As stated by the learned trial judge: "The right to hunt game is but a privilege given by the Legislature, and is not an inherent right in the residents of the State. Wild animals and game of all sorts have from time immemorial been the property of the sovereign, and in Pennsylvania the property of the State. Its power to regulate and prohibit the hunting and killing of game has always been conceded." This subject has been a fruitful source of legislation, and the frequent changes in our game and fish laws represent a zealous intention to define and supervise wild birds, animals, game and fish; to regulate how they are to be preserved and taken, declare the open and closed season when they may be taken; the manner and amount of the killing; and the device, implement and method permitted: Com. v. Immel, 33 Pa.Super. 388; Com. v. McComb, 39 Pa.Super. 411.

In Lawton v. Steele, 152 U.S. 133, the supreme court of the United States declared: "The preservation of game and fish, has always been treated as within the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed and exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts . . . it is within the authority of the Legislature to impose restrictions and limitations upon the time and manner of taking fish and game, considered valuable as articles of food or merchandise. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not now to be called into question." Even as between states, restrictions may be placed upon nonresidents, which differ from those imposed on residents, in regard to license charges and other regulations: Allen v. Wyckoff, 48 N.J.L. 90; Geer v. Connecticut, 161 U.S. 519; James v. Wood, 8 L.R.A. 448, and note.

The authority of the legislature being conceded, and the purpose being so meritorious, then every lawful provision deemed necessary to effect the purpose is within the legislative power. Due process of law is observed in the destruction of fish nets (Lawton v. Steele, 152 U.S. 133), in the forfeiture of vessels even though engaged for the coasting trade under the act of congress (Smith v. Maryland, 59 U.S. 71), and in the summary abatement of nuisances and destruction of property. Cards, dice and other articles used for gambling purposes are perfectly harmless in themselves, but may fall under the ban of the law and may be summarily destroyed. Many instances of the use of the police power are to be found (the segregation of bawds, and prohibiting the use of public sidewalks by public prostitutes, L'Hote v. New Orleans, 177 U.S. 587), the use of certain sections of a city for the manufacture of fertilizers (Fertilizing Co. v. Hyde Park, 97 U.S. 659), and other like instances have been held to be clearly within the police power: Pittsburg's Petition, 32 Pa.Super. 210; 4 Thomp. Corps. 5488.

As stated in Barbier v. Connolly, 113 U.S. 27, "Neither the amendment (XIV) broad and comprehensive as it is, -- nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people." We are within the provisions of the constitution when we regulate the manufacture and sale of food stuffs, Com. v. McCann, 14 Pa.Super. 221; the number of hours adult females should labor, Com. v. Beatty, 15 Pa.Super. 5; and in prohibiting women and children from working in coal mines, Act of May 15, 1893, P.L. 52; in prescribing the qualifications for physicians and undertakers, Com. v. Hanley, 15 Pa.Super. 271; when musical bands may play in the public streets, Wilkes-Barre v. Garabed, 11 Pa.Super. 355; when we authorize the killing of dogs following the track of protected game, Com. v. Frederick, 27 Pa.Super. 228; and in denying the right to aliens to obtain licenses to sell intoxicating liquors: Trageser v. Gray, 73 Md. 250, 9 L.R.A. 780.

The creation of the board of game commissioners of the state, whose duty it is to protect and preserve the game, song and insectivorous birds and mammals (Act of June 25, 1895, P.L. 273), and the department of fisheries having charge of the protection, propagation and distribution of fish (Act of April 2, 1903, P.L. 128), are but legislative conclusions that have been reached after more than a century's experience on this subject, and it was deemed necessary and important to add the provisions of the act of 1909 in order to carry out more effectually the provisions of the earlier enactments.

This legislation is not directed against any particular nationality or special class of aliens, but prohibits "any unnaturalized foreign-born resident" from hunting, capturing or killing any wild bird or animal, and "to that end it shall be unlawful" for such person "to have or be possessed of a shotgun or rifle of any make." The Act of May 5, 1864, P.L. 823, prohibiting the carrying of concealed weapons is not obnoxious to the bill of rights, saving the rights of citizens to bear arms in defense of themselves and the state: Wright v. Com., 77 Pa. 470. Nor does the provision in the fourteenth amendment which declares, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," affect this defendant in any way, as he is not a citizen.

An alien while domiciled with us is entitled to the protection of the laws and owes...