The State v. Heger

• Decision Date: 29 March 1906
• Citation: 93 S.W. 252,194 Mo. 707
• Parties: THE STATE v. HEGER, Appellant
• Court: Missouri Supreme Court

93 S.W. 252

194 Mo. 707

THE STATE v. HEGER, Appellant

Supreme Court of Missouri, Division Two

March 29, 1906

Appeal from St. Louis Court of Criminal Correction. -- Hon. C Orrick Bishop, Judge.

Affirmed.

Morton Jourdan and Frank H. Farris for appellant.

Under the agreed statement of facts, it is shown that one bird was killed in the State of Missouri, in open season, and purchased and came into the possession of defendant in the open season; that the other bird was killed in the Territory of Oklahoma, and the duck in the State of Texas, and the second duck in the State of Arkansas, during the open seasons in said States and Territory, as provided by the law of said States and Territory, and that they were purchased by the defendant during said open seasons. This being true, they were lawfully in his possession, and the Legislature could not authorize their confiscation and destruction, and could not make this defendant liable, because said birds were in his possession when the act went into effect, nor could it impose criminal liability upon defendant because when the act went into effect he did not destroy or had not prior thereto sold and disposed of said property.

Herbert S. Hadley, Attorney-General, John Kennish, Assistant Attorney-General, and Charles E. Yeater for the State.

(1) There is primarily no private right of ownership in wild game, and the absolute ownership of the same is vested in all the people in their collective sovereign capacity as constituted into the State, and the wild game is not the subject of private ownership, except in so far as the people through the lawmaking power of the State, elect to so make it, and the State may absolutely prohibit the taking of it or any traffic or commerce in it, or may permit its taking it under a qualified ownership subject to any conditions it sees fit to impose if deemed necessary, for its protection or preservation, or the public good. Geer v. State of Connecticut, 161 U.S. 519; Haggerty v. Ice Mfg. & Storage Co., 143 Mo. 238; American Express Co. v. People, 133 Ill. 649. (2) The Game Law of March 10, 1905, is not in violation of section 8 of article 1 of the Constitution of the United States, providing that the Congress shall have power to regulate commerce among the several States, as interpreted by the appellate courts of this State. State v. Randolph, 1 Mo.App. 15; State v. Judy, 7 Mo.App. 524; State v. Farrell, 23 Mo.App. 176; Haggerty v. Ice Mfg. & Storage Co., 143 Mo. 246. And it is so held in other jurisdictions. In re Deininger, 108 F. 623; Ex parte Maier, 103 Cal. 476; Magner v. People, 97 Ill. 320; Merritt v. People, 169 Ill. 218; Stevens v. State, 89 Md. 669; Commonwealth v. Savage (Mass.), 29 N.E. 468; People v. O'Neil, 110 Mich. 324; Roth v. State, 51 Ohio 209. (3) The game birds described in the agreed statement became subject to the game law of the State at the time they passed the State line on their shipment therein. United States Compiled Statutes 1901, p. 3181; In re Rahrer, 140 U.S. 545.

OPINION

BURGESS, P. J.

This is a prosecution upon an information filed against the defendant for a violation of section 18 of the Act of March 10, 1905, for the preservation of game and fish. The information was filed in the court of criminal correction of the city of St. Louis, on June 30, 1905, and charges that the defendant, Fred Heger, on June 27, 1905, did willfully and unlawfully sell to one H. W. Kuehans, in the city of St. Louis, Missouri, certain game birds, to-wit, one quail, one grouse, one teal duck and one mallard duck, which said birds had been killed without the State of Missouri, and shipped into said State, and were then and there in possession of the said defendant, contrary, etc.

On August 12, 1905, the cause was duly tried by the court, a jury having been waived, upon an agreed written statement of facts, there being no dispute as to the facts relative to the sale of the game in question. Such agreed statement of facts showed that the defendant, at and in the city of St. Louis, in the State of Missouri, on the 27th day of June, 1905, willfully had in his possession the game birds described in the information, to-wit, one quail, commonly called a part-ridge, one grouse, commonly known as prairie chicken, one teal duck, one mallard duck, and that on said day he sold to one H. W. Kuehans, in said city, all of said game birds. That the quail was killed in the State of Missouri, during the open season, as provided by law, and purchased during said open season by defendant; that the grouse was killed in the Territory of Oklahoma; that the teal duck was killed in the State of Texas, and that the mallard duck was killed in the State of Arkansas; that the said game birds were killed during the open seasons in said States and Territory, respectively, as provided by the laws of said States and Territory, and purchased by defendant and shipped to him during said open seasons, and that after the said purchases, and during all the time up to the date of sale, all of said birds had been placed and held in cold storage by defendant in the city of St. Louis in the State of Missouri. Under the finding and judgment of the court the defendant was found guilty, the court having refused defendant's instruction in the nature of a demurrer to the evidence; and thereafter, upon the same day, the defendant duly filed his motion for new trial and in arrest of judgment, which were by the court overruled. Defendant appeals to this court.

While it is said for defendant that the act in question is unconstitutional and void for several reasons, the only constitutional questions presented by this appeal are raised in the motion in arrest, and are as follows:

"Because the law under which defendant was arrested, tried and convicted, is in violation of section 1, article 5, of amendments to the Constitution of the United States, and sections 2, 15, 20 and 30, article 2, of the Constitution of the State of Missouri.

"Because the law under which the defendant was arrested, tried and convicted, is in violation of section 8, article 1, of the Constitution of the United States, in which impost or restriction upon interstate commerce and dealings between citizens of the different States or foreign countries, is prohibited."

The authorities are uniform in holding that the absolute ownership of wild game is vested in the people of the State, and that such is not the subject of private ownership. As no person has in such game any property rights to be affected, it follows that the Legislature, as the representative of the people of the State, and clothed by them with authority to make laws, may grant to individuals the right to hunt and kill game at such times, and upon such terms, and under such restrictions as it may see proper, or prohibit it altogether, as the Legislature may deem best. [Haggerty v. Ice Mfg. & Storage Co., 143 Mo. 238, 44 S.W. 1114; Geer v. State of Connecticut, 161 U.S. 519, 40 L.Ed. 793, 16 S.Ct. 600; American Express Co. v. People, 133 Ill. 649, 24 N.E. 758; Ex parte Maier, 103 Cal. 476, 37 P. 402; State v. Rodman, 58 Minn. 393, 59 N.W. 1098; Magner v. People, 97 Ill. 320; Phelps v. Racey, 60 N.Y. 10.]

As it is shown by the agreed statement of facts that defendant had in his possession, in the city of St. Louis, and sold to H. W. Kuehans on the 27th day of June, 1905, all of the game birds mentioned in the information, he was guilty of the violation of the law; it matters not that the birds, except the quail, were killed in, and shipped to defendant from, other States, unless it be shown that his constitutional rights are violated by the act in question. In the leading case upon this subject (Geer v. Connecticut, 161 U.S. 519, 40 L.Ed. 793, 16 S.Ct. 600), Mr. Justice White, says:

"From the earliest traditions the right to reduce animals ferae naturae to possession has been subject to the control of the lawgiving power." In speaking of this power in Haggerty v. Ice Mfg. & Storage Co., supra, Sherwood, J said: "The exercise of this power has been definitely traced back even as far as the time of Solon, who forbade the Athenians to kill game. And in France, as early as the Salic law, the right to reduce a part of the common property in game to possession and consequent ownership was regulated by law. Such regulations prevailed in every country in continental Europe and in England. Treating of this subject, Blackstone says: 'There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals ferae naturae, as are known by the denomination of game, with the right of pursuing, taking and destroying them, which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren or free fishery. . . . In the first place, then, we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use all such creatures as are ferae naturae, and, therefore, the property of nobody, but liable to be seized by the first occupant, and so held by the imperial law even so late as Justinian's time. . . . But it follows from the very end and constitution of society that this natural right, as well as many others belonging to a man as an individual, may be restrained by positive laws enacted for reasons of State or for the supposed benefit of the community.' [2 Bl. Com., 410.] This prerogative of the king as an attribute of government recognized and enforced by the common law of England by appropriate and oftentimes severe penalties and forfeitures, was vested in the colonial...