RESTRICTIONS AS TO PURPOSES FOR WHICH GAME MAY BE KILLED. Not only are limits set to the time for killing game and the methods of hunting, but in many instances the killing or possession of game for certain purposes is prohibited. Restrictions of this kind may be con veniently considered under the four heads 'Market hunting,' 'Killing for hides,' 'Possession and storage,' and 'Sale.' MARKET HUNTING. Traffic in game, especially since the advent of railroads in the West and the introduction of modern methods of refrigeration, has grown to large proportions, and in several instances threatens with extermination some of the most valuable game in the United States. The amount killed for sport or for food, however large it may be, is small in comparison with that killed for market. With a view to preventing extermination of their game, some States have prohibited killing for sale, and others the sale of all game taken within the State or protected by its laws. Ohio prohibits killing for sale of squirrel, quail, ruffed grouse or pheasant, prairie chicken, wild turkey, Mongolian, English or ring-neck pheasant, and woodcock; Pennsylvania, deer, elk, quail, partridge, grouse, pheasant, wild turkey, and woodcock; Indiana, quail, ruffed grouse, and pinnated grouse; Iowa, these and woodcock; Tennessee, deer, quail or partridge; Wyoming, big game. The Province of Ontario prohibits the employment of any one to kill game for sale; and Nebraska and the Indian Territory the slaughter of game for any purpose except food. In many States that do not absolutely prohibit killing for sale, such killing is greatly restricted by laws requiring hunters to secure licenses, and limiting the number that may be killed (see pp. 44-50). Oregon requires nonresident market hunters to obtain a special license, the fee for which is $10. Georgia has a general law forbidding killing for sale, except under license, but it is not operative in any county until recommended by the grand jury of that county. KILLING FOR HIDES. Killing for hides may be regarded as a special phase of market hunting and one which has proved extremely destructive to big game in certain States of the West. Of late years legislation has been directed toward stopping this source of waste. Wyoming prohibits purchase of hides or horns of deer, elk, moose, antelope, mountain sheep, and goat; and in some other States dealers are required to obtain special licenses for handling hides of deer and moose or other big game. (For restrictions on shipment of deer hides see page 60). POSSESSION AND STORAGE. One of the most important features of game legislation has been the gradual increase of provisions making the possession of game out of season an offense. Prohibitions against killing can be enforced only against the hunter, who may be merely the agent of the dealer; but penalties for possession can be enforced alike against hunter and dealer, agent and employer. The enforcement of such provisions has given rise to cases which have been carried to the highest courts. Acknowledgment has been slow of the principle that States can impose restrictions on possession of game, or that birds lawfully purchased in open season can become contraband simply by being kept a few days in storage. It is unnecessary here to review the history of this litigation; but reference may be made to a case recently decided by the supreme court of Indiana, in which the appellant was convicted of having in his possession on February 5, 1900, a single quail, which he had obtained lawfully on December 30 previous and had kept in his refrigerator, notwithstanding that the law of Indiana prohibited possession of quail in that State after January 1. In deciding this case the court summarized the whole question briefly in the following words: The individual has no natural right to take game, or to acquire property in it, and all the right he possesses or can possess in this respect is granted him by the State. The power to grant embodies the power to impose conditions. The citizen when he accepts the State's grant, accepts it impressed with all the restrictions and limitations laid upon it, and when he acquires property under such license he does so with full notice of his qualified right; and so, if he loses that which he has taken, or held possession of, upon forbidden terms, he has lost nothing that belonged to him, and there has been no taking of property without due process of law, or without just compensation. (Smith v. State, 58 N. E. Reporter, 1045.) Similar decisions have been rendered in Minnesota (State v. Rodman, 58 Minn. 393) and other western States. The supreme court of Missouri has even gone so far as to hold that under a law prohibiting possession during the close season, a contract on the part of a coldstorage company to keep game during the close season is illegal. (Haggerty v. St. Louis Ice Co., 44 S. W. 1114.) In Ontario game 1 Michigan (Acts of 1893, p. 312) and Minnesota (Laws of 1897, p. 413) have declared that birds protected by law shall always remain the property of the State. When their killing is not prohibited, they may be used in the manner and for the purposes authorized, but not otherwise. dealers are licensed, and, in addition to the regular license, are required to obtain a special license at a cost of $25 to keep game in cold storage during the close season. The question of the status of imported game has been greatly simplified by the passage by Congress of the Lacey Act; and in this connection attention may again be called to section 5 of that act, which provides that all game imported into any State becomes subject to the operation of the laws of that State (provided they are broad enough to cover it) to the same extent and in the same manner as if produced in that State. SALE. Thirty-two States and Territories and 6 Provinces of Canada now prohibit the sale of all or certain kinds of game at all seasons. There has been a steady increase in the prohibitions against sale, and during the past year such provisions have been enacted by Arizona, California, Indiana, Michigan, Minnesota, Missouri, Nevada, New Hampshire, North and South Dakota, and Quebec. In Arizona, Idaho, Kansas, Michigan, Montana, and Nevada the sale of all game protected by the State law is prohibited. In Massachusetts and New Hampshire the sale of ruffed grouse or partridge, and woodcock is forbidden; in South Dakota, big game; in Minnesota, quail, ruffed grouse, sharp-tailed grouse, prairie chicken, and all aquatic fowl; in California, Washington, and Manitoba, all big game and upland game; and in Ontario, quail, ruffed grouse or partridge, woodcock, and snipe. In some States, after the close of the open season, a few days are allowed in which to dispose of game. Such provisions prevail in Illinois, Iowa, Massachusetts, New Jersey, Ohio, and 5 Provinces of Canada. The right of the State to prohibit dealers from storing or selling game imported from other States has been hotly contested. While there has been diversity of opinion on this point, the majority of the decisions have sustained the State. Such decisions have been rendered in California (Er parte Maier, 103 Cal. 476), the District of Columbia (Javins v. U. S., 11 App. D. C. 347), Illinois (Magner. People, 97 Ill. 320), Maryland (Stevens v. State, 89 Md. 669), Michigan (People v. O'Neil, 68 N. W. Rep. 227), Missouri (State v. Judy, 7 Mo. App. 524), New York (Phelps v. Racey, 60 N. Y. 10), and in other States. A decision of the same kind has recently been handed down by the United States circuit court in the district of Oregon. A dealer in Portland had been convicted by the State of selling, contrary to the law of Oregon, certain trout purchased in Seattle, Wash. He was fined, and in default of payment was imprisoned. Application was thereupon made to the Federal court for a writ of habeas corpus, which was 1In re Deininger, circuit court, district of Oregon, April 17, 1901, denied. In rendering this decision the court cited the case of Geer v. Connecticut,' and disposed of the question as follows: The decision [Geer v. Connecticut] is based upon the fundamental distinction that exists between the qualified ownership in game and the perfect nature of ownership in other property. If game when reduced to possession became an article of property, in the ordinary sense of the word, it would belong to commerce; otherwise, it is a subject of control by the State, in the exercise of its police power. There is, in my opinion, no room to distinguish between the right to take game out of the State and the right to bring it within the State. Interstate traffic is affected as much in one case as in the other. It is not material that in one case the killing of game is discouraged by the limitation which the law puts upon its use, by prohibiting its exportation, while in the other the enforcement of the law against the taking of game is rendered practicable by making its possession for sale unlawful. The ultimate object sought in each case is the same, and the law in each case is a legitimate exercise of the police power of the State. Illinois specifically provides that the sale of certain game imported from other States shall be lawful at certain seasons, although the same kind of game killed within the State can not be sold at any time. Missouri, New Mexico, and Pennsylvania restrict prohibitions against sale of game to that taken within the State. Nebraska permits the storage but not the sale of imported game during the close season in the State for similar game. In a few instances prohibitions against the sale of certain game are so general as to afford protection over a considerable area. Thus ruffed grouse can not be sold in New Brunswick, Ontario, Manitoba, Maine, New Hampshire, Massachusetts, Connecticut, Michigan, or Minnesota. Antelope can not now be shipped from any State, although they may still be killed in Colorado, Idaho, Nebraska, Oregon, Washington, and Wyoming. Practically every State in which prairie chickens occur has now prohibited their sale or export. Hence the exposure for sale of these birds in any State where they do not occur, as in any city east of Indianapolis, is strong indication of violation of law. The following table is intended to show two very distinct things: (1) The species which each State and Province prohibits from sale at all seasons. (2) The extension of time beyond the limits of the regular open season allowed dealers in some States, to enable them to dispose of game on hand which can be lawfully sold within the State. The two lists have little in common except that they both come under the head of restrictions on sale of game. 'In which the Supreme Court of the United States upheld the constitutionality of the nonexport law of Connecticut. |