State v. Carey

• Decision Date: 13 December 1917
• Docket Number: 4110
• Citation: 39 S.D. 524,165 N.W. 539
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. W. E. CAREY, Defendant and Appellant.
• Court: South Dakota Supreme Court

39 S.D. 524

165 N.W. 539

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

W. E. CAREY, Defendant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Douglas County, SD Hon. Robert B. Tripp, Judge #4110--Affirmed Walker & Gurley, Kirby, Kirby & Kirby Attorneys for Appellant. C. C. Caldwell, Attorney General Byron S. Payne, Assistant Attorney General John W. Addie, State's Attorney Attorneys for Respondent. Opinion filed December 13, 1917

POLLEY, J.

Appellant in this case was tried and convicted upon an information charging him with the shipment of 15 wild ducks to a point without the state, in violation of the provisions of section 29, chapter 240, of the Laws of 1909. Several reasons why the conviction is illegal are urged by appellant, but the principal ground relied upon is that the act of Congress approved March 4, 1913 (chapter 145, 37 Stat. at Large, 847 [Comp. Stat. 1916, § 8847]), commonly known as the Federal Migratory Game Bird Law, placed all migratory game birds under federal protection, and thereby suspended all state laws in regard to the same subject; while, om the other hand, it is contended by the Attorney General that the said federal act is unconstitutional and did not have the effect claimed for it by the appellant. Said act provides that:

"All ... migratory game and insectivorous birds ... shall hereafter be deemed to be within the custody and protection of the Government of the United States, and shall not be destroyed or taken contrary to regulations hereinafter provided therefor."

But it nowhere in the record appears that the ducks in question were killed in violation of this law or of any regulation made thereunder. So far as appears from the record, said ducks were lawfully killed and lawfully in the possession of the defendant at the time of the alleged shipment. Therefore it is immaterial to the issues in this case whether the said federal act is constitutional or not.

By the provisions of section 29, c. 240, Laws of 1909, it is made unlawful 'to ship wild ducks or to cause them to be shipped by any private or common carrier to any person either within or without the state, and it is immaterial, under the provisions of this act, whether the killing of such ducks was lawful or unlawful.

Appellant does not question the power of the Legislature to enact chapter 240, Laws of 1909, except so far as it conflicts with the said federal act. And that the enactment of said chapter 240 is within the police power of the Legislature is well established by the...