Dieterich v. Fargo

Houghton, J.: ■ Plaintiff’s complaint alleges that he maintains á private deér preserve'in this State,, at Mill Brook in Dutchess county* consisting of about 2*400 .acres, securely fenced, within which lie placed some years ago-several “ domesticated ” deer purchased by him without this State, and that they have rapidly increased- in number, and .to such an extent that in order to preserve his herd it is necessary for him to kill, annually, a considerable number of bucks, and that lie' desires to sell their carcasses to produce a revenue for maintaining. ..such preserve, and that there is no proper means of transportation to the New York market* which, is' the principal one, except through the defendant express company;: and that during the open season for the killing of wild deer he tendered to the defendant for such transportation several carcasses of such deer, which the defendant refused to receive and transport, on the ground that by so doing it might violate the provisions of the Forest, Fish and Game Law of. the State; and the. relief asked is that the defendant may be enjoined from refusing to transport such carcasses upon tender of charges, provided the same.shall be plainly marked as;.deer raised in confinement and killed in the plaintiff’s .private preserve. The defendant demurred to the complaint on the ground that it [317] stated no cause of action, and such demurrer was sustained. No contention is made, that such an action would not lie in any event, and the sole, question presented is whether or not the receiving and transporting by defendant of more than one deer carcass, killed by plaintiff from- his herd, unaccompanied by the owner, would be a violation of section 8 of the Forest, Fish and- Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1906, chap. 478). We think it would, and that the demurrer was properly sustained. That section provides that, deer or venison si ¡all not be transported by a common carrier or possessed for that purpose, except during a prescribed open season, when one carcass or a part thereof * may be transported from the county where killed if accompanied by the owner. ' The term “ wild ’’ is not used in the section, and ■ the plaintiff’s contention is that such word should be implied, and that when so read into the law it does not apply to deer killed in his preserve, because they are “ domesticated ” and reared in captivity, and belong to himself to do with as he in ay choose. The contention of the defendant is that the Legislature had the right to prohibit or regulate the public transportation of the car- '■ casses of all deer as a means of protection to- wild deer, and for the purpose of restraining their wholesale slaughter for the public ' markets. . - However honest and law-abiding the plaintiff may be, it is manifest that a construction as contended for by him would open the door to an easy evasion of the law which the Legislature has properly enacted to-prevent the promiscuous killing of wild game. While the plaintiff’s preserve is not situated in that portion of the State in which wild deer abound, in order to evade the law it would be only necessary to establish a private. preserve in the heart of the Adirondacks and kill wild deer promiscuously and represent to the . express company, that they were killed in the preserve and thus secure-their transportation in quantity to the. various markets. It is true that this could not be done without practicing a fraud upon the express companies, but- it is fair to- assume that the Legislature restricted the transportation of the carcasses of all deer, whether killed in captivity or killed in a wild state, for the express purpose of preventing such fraudulent imposition, to the.end that no one might be exposed to the temptation of thus killing wild deer for market; [318] That tlie Legislature for the purpose óf protecting wild game,. birds and fish within the State has the right to establish the open seasons in which certain kinds may be taken, and to' prescribe the manner and limit of such taking, as well as to prohibit other-kinds from being taken at. all, is unquestioned. The method which shall be employed to afford protection to.wild game is necessarily within the discretion of the Legislature, and to that end it may prohibit tlie possession and sale in this State, duzingtlie close season, of game killed and ptmehased in another State (People v. Boolman, 180 N. Y. 1; People ex rel. Hill v. Hesterberg, 184 id. 126), or the sale at any time of ganie killed in this State, as well as game killed-in'another State, except under Certain prescribed conditions. (Forest, Fish & Game Law [Laws of 1900, chap. 20], § 27, as am'd. by Laws of 1905, chap. 335," § 43a, as amd. by Laws of 1906, chap. 584, § 1; ■People v.Weinstock, 117 App. Div. 168; People v. Stillman, 117 id. 170.) "For the better protection of the game of 'this State the Legislature has prescribed that it shall not be taken with intent to transport or be transported without the borders of the Scate (Forest, Fish & Game Law, § 88, as amd. by. Laws of 1904, chap. 580, § 8), and that trout shall not be transported izi this State except when accompanied by the actual ownei*. (Id. § 60.) These provisions, which cannot be deemed unreasonable, have as their object the better protectiozi of the fish and gazne of the .State. Confessedly, one of the best means of preventing the illegal taking of fish and game is to deprive the pot-hunter and the pot-fisher of a ready market. If he has no market the temptation to take illegally is lai'gely reznoved. The most effective way of depriving him of. a market is to deprive him of means of transportation. This the Legislature has attempted to dó hf prescribing that common carriers shall not accept for transportation carcasses of deer, except one, and that accoznpanied by the owner. In -so doing we are of opinion that the Legislature intended to prohibit the transportation of the carcasses of all deer, whether wild or “ doznesticated,” even if such a term can be applied to such an animal, which is veiy doubtful. In our view it is no answer to say that the deer belong to the plaintiff and aré his absolute property. Grouse and woodcock killed in another State and purchased there by- a resident. of this [319] State belong' to the purchaser, and by the same reasoning, he could possess them and sell them in this State, either during the open or the close season. This court has recently held that it was a viola- . tion of the Game Law to offer for sale in this*State English pheasants hatched, reared and killed in captivity in the State of New Jersey. (People v. Waldorf-Astoria Hotel Co., 118 App. Div. 723.) The sale of such birds could not harm our own wild pheasants, except indirectly, in that it opened the door to fraudulent claims that birds actually killed in this State had been bred and killed in another. In the same way the permitting of the shipping of carcasses of deer, -,except in the prescribed manner, offers temptation to claim that deer killed in- a wild state had been bred ■in captivity. • The complaint, in our opinion, asks that the defendant be compelled to do an illegal act, and hence it states no cause of action'. The interlocutory judgment' should be affirmed, with costs, with leave to the plaintiff to amend if he desires on payment of' costs in this court and in the court below. ' ■ • Patterson, P. J.,and Scott,"J.,, concurred; HoLattghlin and Lambert, JJ., dissented.