People of the State of New York Ex Rel August Silz v. Henry Hesterberg

• Decision Date: 02 November 1908
• Docket Number: No. 206,206
• Citation: 29 S.Ct. 10,53 L.Ed. 75,211 U.S. 31
• Parties: PEOPLE OF THE STATE OF NEW YORK EX REL. AUGUST SILZ, Plff. in Err., v. HENRY HESTERBERG, Sheriff of the County of Kings
• Court: U.S. Supreme Court

211 U.S. 31

29 S.Ct. 10

53 L.Ed. 75

PEOPLE OF THE STATE OF NEW YORK EX REL. AUGUST SILZ, Plff. in Err.,

v HENRY HESTERBERG, Sheriff of the County of Kings.

No. 206.

Argued October 19, 1908.

Decided November 2, 1908.

Messrs. John B. Coleman and Edward R. Finch for plaintiff in error.

[Argument of Counsel from pages 32-33 intentionally omitted] Messrs. James A. Donnelly and William Schuyler Jackson for defendant in error.

[Argument of Counsel from pages 33-34 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

This case comes to this court because of the alleged invalidity, under the Constitution of the United States, of certain sections of the game laws of the state of New York. Section 106 of chapter 20 of the Laws of 1900 of the state of New York provides:

'Grouse and quail shall not be taken from January 1st to October 31st, both inclusive. Woodcock shall not be taken from January 1st to July 31st, both inclusive. Such birds shall not be possessed in their closed season except in the city of New York, where they may be possessed during the open season in the state at large.'

Section 25 of the law provides:

'The close season for grouse shall be from December 1st to September 15th, both inclusive.' As amended by § 2, chapter 317, Laws of 1902.

Section 140 of the law provides:

'1. 'Grouse' includes ruffed grouse, partridge, and every member of the grouse family.'

Section 108 of the law provides:

'Plover, curlew, jacksnipe, Wilsons, commonly known as English snipe, yellow legs, killdeer, willett snipe, dowitcher, shortnecks, rail, sandpiper, bay snipe, surf snipe, winter snipe, rinknecks, and oxeyes shall not be taken or possessed from January 1st to July 15th, both inclusive.' As amended by § 2, chapter 588, Laws 1904.

Section 141 of the law provides:

'Wherever in this act the possession of fish or game, or the flesh of any animal, bird, or fish is prohibited, reference is had equally to such fish, game, or flesh coming from without the state as to that taken within the state: Provided, nevertheless, That, if there by any open season therefor, any dealer therein, if he has given the bond herein provided for, may hold during the close season such part of his stock as he has on hand undisposed of at the opening of such close season. Said bond shall be to the people of the state, conditioned that such dealer will not, during the close season ensuing, sell, use, give away, or otherwise dispose of any fish, game, or the flesh of any animal, bird, or fish which he is permitted to possess during the close season by this section; that he will not, in any way, during the time said bond is in force, violate any provision of the forest, fish, and game law; the bond may also contain such other provisions as to the inspection of the fish and game possessed as the commission shall require, and shall be subject to the approval of the commission as to amount and form thereof, and the sufficiency of sureties. But no presumption that the possession of fish or game or the flesh of any animal, bird, or fish is lawfully possessed under the provisions of this section shall arise until it affirmatively appears that the provisions thereof have been complied with.' Added by chapter 194, Laws of 1902.

Section 119 of the law makes a violation of its provisions a misdemeanor, and subjects the offending parties to a fine.

The relator, a dealer in imported game, was arrested for unlawfully having in his possession, on the 30th of March, 1905, being within the closed season, in the borough of Brooklyn, city of New York, one dead body of a bird known as the golden plover, and one dead body of an imported grouse, known in England as blackcock, and taken in Russia. The relator filed a petition for a writ of habeas corpus to be relieved from arrest, and, upon hearing before a justice of the supreme court of the state of New York, the writ was dismissed, and the relator remanded to the custody of the sheriff. Upon appeal to the appellate division of the supreme court of the state of New York this order was reversed and the relator discharged from custody. The judgment of the appellate division was reversed in the court of appeals of the state of New York. 184 N. Y. 126, 3 L.R.A.(N.S.) 163, 76 N. E. 1032. Upon remittitur to the supreme court of the state of New York from the court of appeals the final order and judgment of the court of appeals was made the final order and judgment of the supreme court, and a writ of error brings the case here for review.

The alleged errors relied upon by the plaintiff in error for reversal of the judgment below are: First, that the provisions of the game law in question are contrary to the 14th Amendment of the Constitution of the United States, in that they deprive the relator, and others similarly situated, of their liberty and property without due process of law. Second, that the provisions of the law contravene the Constitution of the United States, in that they are an unjustifiable interference with and regulation of interstate and foreign commerce, placed under the exclusive control of Congress by § 8, article 1, of the Federal Constitution. Third, that the court below erred in construing the act of Congress, commonly known as the Lacey act, which relates to the transportation in interstate commerce of game killed in violation of local laws. 31 Stat. at L. chap. 553, p. 187, U. S. Comp. Stat. 1901, p. 290.

The complaint discloses that the relator, August Silz, a dealer in imported game, had in his possession in the city of New York one imported golden plover, lawfully taken, killed, and captured in England during the open season for such game birds there, and thereafter sold and consigned to Silz in the city of New York by a dealer in game in the city of London. He likewise had in his possession the body of one imported blackcock, a member of the grouse family, which was lawfully taken, killed, and captured in Russia during the open season for such game there, and thereafter sold and consigned to Silz in New York city by the same dealer in London. Such birds were imported by Silz, in accordance with the provisions of the tariff laws and regulations in force, during the open season for grouse and plover in New York. Such imported golden plover and imported blackcock are different varieties of game birds from birds known as plover and grouse in the state of New York; they are different in form, size, color, and markings from the game bird known as plover and grouse in the state of New York, and can be readily distinguished from the plover and grouse found in that state. And this is true when they are cooked and ready for the table. The birds were sound, wholesome, and valuable articles of food, and recognized as articles of commerce in different countries of Europe and in the United States. These statements of the complaint are the most favorable possible to the relator, and gave rise to the comment in the opinion of the court of appeals that the case was possibly collusive. That court, nevertheless, proceeded to consider the case on the facts submitted, and a similar course will be pursued here. While the birds mentioned, imported from abroad, may be distinguished from native birds, they are nevertheless of the families within the terms of the statute, and possession of which, during the closed season, is prohibited.

As to the first contention, that the laws in question are void within the meaning of the 14th Amendment because they do not constitute due process of law. The acts in question were passed in the exercise of the police power of the state, with a view to protect the game supply for the use of the inhabitants of the state. It is not disputed that this is a well-recognized and oftenexerted power of the state, and necessary to the protection of the supply of game which would otherwise be rapidly depleted, and which, in spite of laws passed for its protection, is rapidly disappearing from many portions of the country.

But it is contended that while the protection of the game supply is within the well-settled boundaries of the police power of a state, that the law in question is an unreasonable and arbitrary exercise of that power. That the legislature of the state is not the final judge of the limitations of the police power, and that such enactments are subject to the scrutiny of the courts, and will be set aside when found to be unwarranted and arbitrary interferences with rights protected by the Constitution in carrying on a lawful business or making contracts for the use and enjoyment of property, is well settled by former decisions of this court. Lawton v. Steele, 152 U. S. 137, 38 L. ed. 388, 14 Sup. Ct. Rep. 499; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Dobbins v. Los Angeles, 195 U. S. 236, 49 L. ed. 175, 25 Sup. Ct. Rep. 18.

It is contended, in this connection, that the protection of the game of the state does not require that a penalty be im- posed for the possession out of season of imported game of the kind held by the relator. It is insisted that a method of inspection can be established which will distinguish the imported game from that of the domestic variety, and prevent confusion in its handling and selling. That such game...