McDonald & Johnson v. Southern Exp. Co.

Decision Date30 December 1904
Citation134 F. 282
PartiesMcDONALD & JOHNSON et al. v. SOUTHERN EXPRESS CO.
CourtU.S. Court of Appeals — Fourth Circuit

J. P K. Bryan, for complainants.

Mordecai & Gadsden and U. X. Gunter, Jr., Atty. Gen. S.C., for defendant.

BRAWLEY District Judge.

An act of the General Assembly of South Carolina approved February 16, 1904 (24 St.at Large, p. 385) declares, in section 1, 'that on and after the 20th day of February, 1904, it shall be unlawful to ship or transport any shad fish beyond the limits of this state'; and in section 2, that 'any person * * * who violates the provisions of section 1 of this act shall upon conviction be deemed guilty of a misdemeanor and subject to a fine not exceeding $100.00 or to imprisonment not exceeding 30 days'; and in section 3, that 'any common carrier receiving any shad fish for transportation or shipment to any points beyond the limits of this state, shall, upon conviction be deemed guilty of a misdemeanor, and shall for each offence be fined not exceeding $100.00."' Immediately after the passage of this act the defendant company, a corporation engaged in the business of transportation as an interstate common carrier, and theretofore carrying shad fish to places outside the limits of the state, gave notice that it would not, after February 20, 1904, receive for shipment or transport to points beyond the limits of the state any shad fish, whereupon complainants, six or seven in number, filed their bill of complaint, alleging, among other things, that they were dealers and shippers of shad fish caught within and without the the limits of the state of South Carolina to places situated outside the limits of said state; that said shad fish was a recognized article of interstate commerce; that they had expended large sums of money in the equipment of their business, and had entered into contracts for daily shipments during the shad season; that the Congress of the United States had, by several statutes, provided for the propagation of shad fishes, and had expended large sums of money, and deposited many millions of shad fishes or shad fry in the coast waters of the United States for the benefit of the citizens of the United States, and that the act above mentioned was in contravention of article 1, Sec. 8, of the Constitution of the United States. An interlocutory injunction was granted, and it was referred to the master to take testimony, and the case is now before me upon his report, and upon a motion for a permanent injunction; counsel for complainants appearing in behalf of said motion, and the Attorney General of the state in opposition.

The master reports that he held a reference October 7, 1904, at which were present the solicitor for the complainants, the solicitor for the defendant, Southern Express Company associated with whom as counsel was the Attorney General of the state of South Carolina, and that the complainants and their witnesses being present and ready to give their testimony in the cause, it was agreed by the counsel for the complainants and the counsel for the defendant that the facts as alleged in the bill of complaint were admitted as true counsel for the defendant stating that the issue was one of law, arising upon the face of the pleading. The facts as alleged being admitted, it was further agreed that during the pendency of the act set forth in the bill of complaint in the Legislature of the state of South Carolina an amendment was offered striking out the words 'any shad fish,' in section 1 of the act, and inserting in lieu thereof the words 'any shad fish caught in the waters of the state of South Carolina,' but the said amendment was rejected. It was stated by the counsel for the complainants in the argument before me, and not controverted, that he was prepared to prove by his witnesses that the greater part of the shad fish shipped by complainants was caught beyond the limits of the state of South Carolina.

In Geer v. Connecticut, 161 U.S. 519, 16 Sup.Ct. 600, 40 L.Ed. 793, the Supreme Court of the United States considers the nature of the property in game, and the authority which the state had a right to lawfully exercise in relation thereto, and, after reviewing the authorities from the time of Solon, holds that, from the earliest traditions, the right to reduce animals ferae naturae to possession has been subject to the control of the lawgiving power. The principle upon which this decision rests is that such animals belong to the collective body of people of the state, and are held by the state in trust for the people, and the person who takes the game not being the subject of private ownership, except in so far as the people may elect to make it so, the state may, if it sees 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; that such common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose. The dissenting opinions of Justices Field and Harlan, while not questioning the right of the state, by its legislation, to provide for the protection of wild game, hold that such game, when beyond the reach or control of man, is not the property of the state, or of any one, in a proper sense, and that when man, by his labor or skill, brings any such animals under his control and subject to his use, he acquires, to that extent, his right of property in them; that, having thus, by labor or skill, added to the uses of man an article promoting his comfort, which without that labor would have been lost to him, he has an absolute right to it, and the state cannot interfere with his disposition of it; that such game thus reduced to his possession becomes an article of commerce; and that it does not lie within the province of any state to confine the excellencies of any articles of food within its borders to its own fortunate inhabitants, to the exclusion of others. Two other Justices took no part in the decision, but the opinion of the court settles the law that a state has the power to prohibit the exportation of game killed within the limits of the state. The statute of Connecticut which was under the review of the court forbade the transportation of 'any such birds killed within this state,' and the opinion of the Supreme Court uses the same words of limitation. The case under review related to woodcock and other birds, but there is no doubt that fish come within the general classification of game. Blackstone and Kent class them with animals ferae naturae, and in this state it was so decided in State v. Higgins, 51 S.C. 53, 28 S.E. 15, 38 L.R.A. 561.

Whether the shad fish, owing to its peculiar nature, and to the circumstance that its presence within the waters of the state is due largely to the methods of propagation, and to the expenditure of moneys by the general government for the benefit of all the people of the United States, should be differentiated from this classification, is an interesting question raised by the pleadings, and may be considered hereafter. Assuming that it is to be classed with other game as animals ferae naturae, the property in which rests in the state, and that, under the principle settled by Geer v. Connecticut, the state has the right to prohibit the exportation beyond its limits of any such fish caught within its borders, does such right exist as to any fish caught without its borders and brought within it? The source of title in such fish is not the state. There is no ownership by the state, or by the people in their collective capacity, in game or fish taken or killed outside the borders of the state, for it is not a food supply which belongs in common to all the people of the state, and which can only become the subject of ownership in a qualified way, as declared in that case. Therefore it seems to me clear that shad fish caught without the borders of the state are not subject to the limitations and restrictions that the state may impose on the ownership of fish caught within its borders.

In the Case of Davenport (C.C.) 102 F. 540, the petitioner, who kept a restaurant in the city of Spokane, in the state of Washington, was arrested and imprisoned for having in his possession and offering for sale quail which he had purchased in the state of Missouri. The statute upon which the prosecution was founded declared it to be a misdemeanor to offer for sale quail or other game therein described. The petitioner was discharged in habeas corpus proceedings, the court saying:

'I fully assent to the doctrine of these decisions holding that it is competent for state Legislatures to enact laws for the protection of game; and I do not question the decision of the Supreme Court of the United States in Geer v. Connecticut, holding that the Legislature of the state has the constitutional power to entirely prohibit the killing of game within the state for the purpose of conveying the same beyond the limits of the state, for it is true, and it is an elementary principle, that the wild game within the state belongs to the people in their collective, sovereign capacity. Game 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 for traffic or commerce in it; but the power of the Legislature in this regard only applies to game within the state, which is the property of the people of the state, and no such power to interfere with the private affairs of individuals can affect the right of a citizen to sell or dispose of, as he pleases, game which has become a subject of private ownership by a lawful purchase in another state. This decision of the
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