People v. Clair

• Decision Date: 05 June 1917
• Citation: 221 N.Y. 108,116 N.E. 868
• Parties: PEOPLE v. CLAIR.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 108

116 N.E. 868

PEOPLE

v.CLAIR.

Court of Appeals of New York.

June 5, 1917.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the People against Louis P. Clair to recover for penalties under the Conservation Law. The people appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (160 N. Y. Supp. 1140), unanimously affirming a judgment of the Herkimer Trial Term for respondent. Reversed.

The facts, so far as material, are stated in the opinion. Since the entry of judgment in the Appellate Division herein the defendant has died. His personal representative has been substituted as defendant and the action continued in his name. In the opinion, where the defendant is mentioned the defendant Louis P. Clair, now deceased, is intended.

Egburt E. Woodbury, Atty. Gen. (William T. Moore, of Mechanicsville, of counsel), for the People.

James P. O'Donnell, of Herkimer, for respondent.

CHASE, J.

On October 30, 1915, two men, one a confidential agent of the conservation commission of the state of New York and the other a game protector employed by said commission, but unknown to the defendant, went to a small hotel in the town of Wilmurt, in the county of Herkimer, of which the defendant was the proprietor, and remained there until the morning of November 7th. They departed that morning, paying $15.50 each for their board and room, being at the rate of $2 per day for the time that they had been guests for pay of the defendant. At the close of the noon meal on November 6th the defendant brought from the kitchen into the dining room two dead partridges, and said to one of his said guests that the partridges had been given to him, and that he was going to serve them at the evening meal that night. The meal was served in the dining room that evening, at a table occupied by the commission employés, the defendant's said guests, separate from the table occupied by the defendant and his wife and one of his employés. The only meat course served to the defendant's said guests were the two partridges which they ate.

Section 180 (added by Laws 1912, c. 318) of the Conservation Law (Consol. Laws, c. 65), provides:

‘The dead bodies of birds belonging to all species or subspecies, native to this state, protected by law or belonging to any family, any species or subspecies of which is native to this state and protected by law shall not be sold, offered for sale, or possessed for sale for food purposes within this state whether taken within or without this state, except as provided by sections three hundred and seventy-two and three hundred and seventy-three.’

Partridges are native to this state. They are game birds and were at the time mentioned protected by law. Conservation Law, §§ 210, 214 (added by Laws 1912, c. 318). Sections 372 and 373 of the Conservation Law are not material in the consideration of the question now before us. The question is a simple one, and it is whether serving the partridges by the defendant as a part of the meal furnished by him and paid for by his guests as stated constitutes a sale of said partridges for food purposes.

[1] It is not claimed that there was any illegality in the possession of the birds, nor that it would be illegal if in good faith they were given away. The Conservation Law is intended to preserve the natural resources of the state, including game birds enumerated therein, and to prevent what is commonly known as ‘pot hunting,’ or the killing of birds for profit to the hunter, and in generally dealing therein commercially. For that purpose, among other things, it prohibits the sale of the dead bodies of birds that are protected by law.

[2][3] The preservation of such animals, birds, and fish as are adapted to consumption as food, or to any other similar useful purpose, is a matter of public interest, and it is within the police power of the state as the representative of the people to make such laws as will best preserve such game and secure its beneficial use in the future to the citizens of the state, and to that end it may adopt any reasonable regulations not only as to time and manner in which such game may be taken and killed, but also may impose limitations upon the right of property in such game after it has been reduced to possession. Such limitations deprive no person of his property, because he who takes or kills game had no previous right to property in it, and when he acquires such right by reducing it to possession he does so subject to such conditions and limitations as the Legislature has seen fit to impose. State v. Rodman, 58 Minn. 393, 59 N. W. 1098;Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793;American Express Co. v. People, 133 Ill. 649, 24 N. E. 758,9 L. R. A. 138, 23 Am. St. Rep. 641;State v. Dow, 70 N. H. 286, 47 Atl. 734,53 L. R. A. 314;People v. Bootman, 180 N. Y. 1, 72 N. E. 505,2 Ann. Cas. 226.

[4] A construction of the Conservation Law should be adopted as appears most reasonable and best suited to accomplish its purpose. Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524;People v. Fox, 4 App. Div. 38,38 N. Y. Supp. 635;People v. Laning, 40 App. Div. 227,57 N. Y. Supp. 1057.

[5] Clearly, if in a hotel where meals are served a la carte a partridge is ordered prepared and served as food and paid for as such, it would constitute a sale within the meaning of the statute. Commonwealth v. Phoenix Hotel Co., 157 Ky. 180, 162 S. W. 823.

[6] The service of the partridges by the defendant enabled him to omit the service to his guests of other meat or food in their place and...