Peole ex rel. Silz v. Hesterberg

Woodward, J. : There is no dispute about the facts in this case. One August Silz, on the 30th day of March, 1905, had in his possession in the county — 296 — óf Kings one imported. golden plover which was lawfully taken, killed and captured in England during the. open se’aso.n for such game there, and thereafter sold and' consigned to Silz in New York city by a dealer in game in London, Eng., and at the same time' he had in his possession one imported blackcock, a bird lawfully taken and killed in Russia and consigned to the said Silz by the same London dealer. These birds it is conceded were duly imported by Silz in accordance with the provisions of the tariff laws and regulations in force, through the custom house in New York city, during the open season for plover and grouse in the State of New York. It is admitted that these particular birds are entirely different varieties of game birds from the game birds known as plover and grouse in the State of New York, and from any bird native to the State of New York, or to America-; that they are different .in .form, size, color and markings from the game birds known as plover and grouse in the State of New York and from any American bird, and Can be easily and readily distinguished from such plover and grouse found in New York State'and from any bird native to America, both with ftheir feathers on and after they are plucked. It is likewise com ceded that such birds were and are staple, sound, wholesome and valuable articles bf food, and are in constant use as such, and that they are recognized and staple articles of" commerce' between the different countries of Europe and the tlnited States of America, and were of the fair market value of one dollar and a half. The only question presented Upon this appeal is whether the possession of these birds, under these circumstances, constituted a crime under the provisions of sections 106, 108, 119 and 141 of the Forest, Fish and, Game Law (Laws, of 1900, chap. .20), as amended by chapter 194 of the Laws of 1902 and chapter 588 of the Laws of 1904. In principle, the exact question here presented was before the court in People v. Buffalo Fisk Co. (30 Misc. Rep. 130), and Mr. Justice Lambebt,. after reviewing the authorities, said: “ The principle laid down by the case referred to clearly establishes the right of the defendant to import the fish in question into the State of New York as a purchaser and importer, and in the exercise of such right, conferred by the Federal government, it was not within the power of the Legislature to make the possession of the property thus imported .unlawful. ..Possession is a necessary inpident to the — 297 — right of importation, and to the right of property imported. Possession and the right of sale is the intended consequence of the right of importation. It would as effectually destroy the privilege of importation to make the intended consequence thereof unlawful, as to prohibit importation itself. Applying the rules laid, down in the cases discussed to the admitted facts, that the fish in question were imported from the Dominion of Canada, and a duty had been paid for such privilege under the Dingley act, some of which were in the hands of the importer for shipment and the remainder in its possession for the purposes of sale,It is clear that the statute of this State* making such possession unlawful is in conflict with the general power of Congress to regulate commerce between foreign nations and the several States, and to the extent that it attempts to levy tribute upon the custodians of these fish, whether by means of taxation or a penalty for having them in possession, it is null and. void.” Continuing a review of authorities, the same learned jurist sums up as follows: - “ This being the law of the land, that the importer acquires a right, not only to bring the articles into the country, but to mix them with the common mass of property, the fish imported by this defendant, became, by reason of such importation, absolute property in the hands of the importer, as well as all who might take title under them, and it is an abuse of the police power which cannot be justified by any sound process of reasoning to say that the ^Legislature may make it a crime, and subject the owner of this lawfully acquired property to penalties for merely having the property in his possession. It is conceded, of course, that if these fish were diseased, or had remained exposed to the elements until they were unfit for food, and constituted a menace to the public health, the State would have the right to interpose its police powers, and prevent the sale.” This case was considered by the Appellate Division in the fourth department, where it was affirmed on the opinion of the court below (45 App. Div. 631), and was then taken to the Court of Appeals, where it was .affirmed by a divided court, O’Brien, J., writing. (164 N. Y. 93.) After a careful review'of the questions submitted, the learned court said: “ Admitting, for the purposes of — 298 — the argument, that the statute in question means just what the plaintiffs counsel claims for it, the important fact still remains th'at Congress has permitted the defendant to import' fresh fish upon payment of certain'duties. It has paid the duties and complied with the. Federal regulations, but when the article is brought here the State-steps in and forbids the defendant to-have-it in its possession, and, of Course, forbids the sale. This creates a direct Conflict between the regulations of Congress and those of the State, and, consequently, the latter must yield to the fqrmer. The -State had. no. power to extend its police legislation to such a transaction, and, of, course, had no power to forbid what Congress had. expressly permitted.” It appears -to be conceded upon this appeal that People v. Buffalo Pish Co, (supra) would be'controlling .Were it not for certain statutory provisions, which have been.enacted since the decision in that -case, and it is contended that the Court of Appeals in Peopled. Bootman (180 N. Y. 1) has finally determined the question here presented tin favor of the respondent.- As we read'that ■case, however, -it does not appear to question the law of the Buffalo [Fish Co. case, in SO far as it decided that fish brought into this Country from foreign lands under, the provisions' of -the custom laws could -be- possessed and sold without regard to State statutes. In fact -the decision follows the Buffalo Fish Co. case, and holds that game birds, grouse, quail, etc., which were not killed in. the State of Few York, but which Were killed in sister States and transported into'this State in November, 1900, and which were in the possession of the defendants in J une, 1901, were -not unlawfully possessed, and-that the owners were not, therefore,-subject to the penalties attempted to be imposed. After determining the only question then before the court, the learned jurist writing went into a discussion of what the law might be under certain statutory provisions since enacted, and it was- pointed out that “ It was held by a majority of the learned justice's of the Appellate Division- that the Legislature has no power to make the possession of imported game unlawful,'as it would-violate the provisions of our State Constitution relating to the protection-of property,” and it was this determination of the Appellate Division in the first department (People v. Bootman, 95 App. Div. 469)' which the court disapproved, and — 299 — not the decision of Mr. Justice Lambert and the Appellate Division in the fourth department in People v. Buffalo Fish Go., that the act there construed, which contained provisions similar to the statute in question, was unconstitutional and void as interfering with the commerce clause of the Federal Constitution (art. 1, § 8), in so far as. it attempted to deal with articles imported under the provisions of the customs laws of the nation. “ While it is our duty,” say the court in the Bootman Oase (supra), “ to affirm the judgment of the Appellate Division, we have felt constrained to consider the constitutional question discussed by that learned court, lest the conclusion announced should be regarded as a precedent and result in evil.” The legislation under which it is claimed the police powers of the State have been enlarged so as to make it a crime for a man who has lawfully possessed himself of property, having all of the attributes of property outside of this State, and in nowise a menace to the morals or health of the community, to bring it into his possession witlfin this jurisdiction, is found in chapter 553 of the statutes of the first session of the fifty-sixth Congress (31 U. S. Stat. at Large, 187 et seq.), and in section 141 of the Forest, Fish and Game Law, added by chapter 194 of the Laws of 1902. The Federal'statute provides in section 5 (31. U. S. Stat. at Large, 188) that “all dead bodies or parts thereof, of any foreign game animals, or game or song birds, the importation of which is prohibited, or the dead bodies or parts thereof, of any wild game animals, or game or song birds transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory he subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such animals or birds had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” The State statute appears to have been designed to be in harmony with this provision of the Federal statute, for it is provided that “ wherever in this act the possession of fish or game, or the flesh or* any animal, bird or fish, is pro — 300 — hibited, reference is had equally to such fish, game or flesh coming from without the State as to that taken within the State.” But what has either of these provisions.to do with the conceded facts in the case now before us ? Without 'going into - an analysis, ■of the statutes, it is plain .that, in so far as the Federal statute has any bearing whatever, it must relate to interstate and not to foreign commerce,- and we are dealing with a conceded article of foreign commerce •—• with an article- the importation of which is not prohibited. Articles which may be imported under the customs laws and regulations of the United States are within the exclusive jurisdiction of Congress (U. S. Const, art. 1, § 8), and it has' not -attbmpjied, in the so-called Lacy Act, to place them under -the -police regulations of the States. All'game animals or birds “ the importation of which is prohibited” by the customs laws or regulat-ions of ,the United States are placed upon the game footing as “ the dead bodies or parts thereof of any wild game animals, or game or song birds, transported into any State or Territory,” the word “ transported ” being used. in the sense of shipped from one State to another, but this by necessary implication excludes from State control those game birds, etc., the importation of .which is not prohibited. As to these, Congress has provided for their importation, and, as O’Brien, J., so well said in People v. Buffalo Fish Co. (supra) : “The State had no power to extend its' police legislation to such a transaction, and, of course, had no power to forbid what Congress had expressly permitted.” Whatever may be our opinion as to the question discussed outside of the scope of the decision made in the Bootman Case (supra) it certainly does not overrule , the Buffalo Fish Co. Case (supra) in so far as that - case held that 'fish- imported under the tariff laws and regulations of the United-States were not subject to State control, except as they might become so by reason of some inherent vice in the fish themselves; and as the case now before us cannot be distinguished in principle from the latter, it follows 'that there, should be a reversal of' the. order appealed from. ‘ Order appealed from reversed and petitioner discharged. Hirschberg, P. J., and Rich, J., concurred; Hiller, J., read for affirmance, with whom Jenks, J., concurred. Footnotes [*] See Fisheries, Game and Forest Law, §§ 110,113, as amended (post, p. 801).— [Rep. I [*] Sic. Evidently intended for of.— [Rep.