People v. Lassen

Moore, J. The following is an agreed statement of the facts: “On the 29th day of June, 1903, the respondent, purchased from one Hitchcock, a Canadian fisherman, 156 wall-eyed pike or pickerel, the whole number weighing 106 pounds. The- purchase was made in the Province of Ontario, in Canada, in the waters of which Province the fish were lawfully caught. Before the fish were purchased, respondent had made a contract to sell them to Prevor Brothers, Boston, Massachusetts. These fish, under the direction of respondent, were brought to his fishhouse on [598] the banks of the St. Clair river, in the city of Port Huron, where he conducts a wholesale fish business, at which place they were taken from a boat in which they had been conveyed over the river from Canada, and placed on the-floor of said fishhouse in the forenoon of June 29, 1903. These fish were kept entirely separate from fish taken from American waters while in respondent’s possession. During the afternoon of said day these fish were weighed by a United .States customs official while in respondent’s fishhouse, and he paid the duty prescribed by United States law upon them, immediately after which the fish were packed with ice in a box under his direction. The box was marked ‘ Prevor Brothers, Boston, Massachusetts,’ and on the same afternoon this box, containing the fish, was delivered to the American Express Company, at respondent’s fishhouse, and billed to Prevor Brothers, Boston, Massachusetts. The box containing the fish was then conveyed by the American Express Company to the station of the Grand Trunk Railway Company in the city of Port Huron, and just as the said express company was loading said box in an express car of said railway company it was seized by Fred E. Fisher, a deputy game and fish warden of. the State of Michigan, and confiscated. The next day said warden went before a justice of the peace of the city of Port Huron and made the complaint on which this prosecution is based.” The respondent was convicted in the circuit court and brings the case here by writ of error. His claim is: ‘ ‘ First. That there is no Michigan statute making it an offense to have in possession in Michigan fish of said kind and weight lawfully caught in the waters of a foreign country. ‘ ‘ Second. If the Michigan statutes do refer to such fish, they are void, as in violation of the Federal Constitution (article 1, § 8).” The statute under which defendant was convicted is Act No. 88, Pub. Acts 1899. Its title reads: “An act to amend sections one and two, and to add sections six and seven of Act number one hundred and fifty-one of the Public Acts of eighteen hundred ninety-seven, entitled ‘An act to regulate the catching of fish in. [599] the waters of this State, by the use of pound or trap nets, gill nets, seines, or other apparatus”” It provides: “ The People of the State of Michigan enact: * * * “ Sec. 2. It shall be unlawful to market or have in possession any sturgeon, * * * ■ any wall-eyed pike or pickerel weighing less than one pound, * * * each in the round.” The claim is that the title of the act limits the provisions of the statute to fish caught in the waters of this State. We cannot agree with counsel in this view. It is true the title is “An act to regulate the catching of fish in the waters of this State; ” but it is a matter of common knowledge that you cannot tell from its appearance where a fish is caught, and as a method of regulation, and to guard against catching fish of less than one pound weight in the waters of this State, it was competent under the title of this act to prohibit having in one’s possession fish of the prohibited size. As was said by Justice'Long, speaking for the court in People v. Dornbos, 127 Mich. 136, referring to the placing of section 2 in the act: “It is one of the means intended by the legislature to regulate the catching of fish in the waters of the State.” See, also, Com. v. Savage, 155 Mass. 278. We now come to the second question, which is more difficult. Is the statute void because in violation of section 8, art. 1, of the Federal Constitution ? It is said these fish were the subject of foreign commerce, that their seizure by a State official is a State restriction of foreign commerce, and is clearly in conflict with the interstate commerce clause of the Federal Constitution. The caséis ably briefed by counsel, who have collected a large array of authorities. We are also favored with an able article prepared by the learned judge who tried this case, in which the authorities are collected. 60 Cent. Law J. 324. A careful examination of the authorities shows a wide divergence of opinion. This is illustrated by the two [600] opinions found in People v. Buffalo Fish Co., 164 N. Y. 93 (52 L. R. A. 803), in which the identical questions involved here are discussed. In that case Justice O’Brien wrote an opinion in which he held the statute did not apply to fish taken outside the State, and that, if it did so apply, it would be in contravention of the interstate commerce provision of the Federal Constitution. Parker, C. J., and Landon, J., concurred in this opinion. Werner, J., concurred on the ground that the statute applied only to fish taken from waters within the State. Justice Gray wrote an opinion in which he held that because the fish were lawfully taken in Canada, and were purchased there and imported into the State of New York, upon payment of the duties fixed by the tariff, was not a defense, and that the provisions of the statute inhibiting the possession of the fish were not in conflict with the Federal Constitution. Justices Haight and Martin concurred in the opinion of Justice Gray. The authorities are so fully collated, and the arguments in support of the divergent views of the learned judges are so ably presented, in these two opinions, that we shall not attempt to restate them at length. We do, however, desire to quote briefly from the opinion of Justice Gray as follows: “ The object of this statute was to protect and preserve certain game fishes during the breeding season; an object, manifestly, in which the people of the State may be presumed to be more or less keenly interested, and which is recognized, as Judge Church observed, in all civilized countries. The purpose is to protect certain fishes within our jurisdiction, with no reference to those of other States or countries. If they may be brought into the State within the close season here, as articles of commerce protected by United States laws, and, therefore, placed beyond the reach of State laws declaring and regulating an internal policy, the result would be to facilitate evasions of the law and to make detection difficult, if not impossible. The general tendencies of human nature, it might not inappropriately be observed, are such as to make necessary so strict a law as to render obedience to the mandate certain. The statute aims at preventing game fishes [601] from being unlawfully taken and exterminated, and any regulation which tends to secure that aim should be regarded as a legitimate and fair exercise of the police power. “Not an arbitrary, but a wise and politic, purpose is evident in this statutory regulation, touching as it does the interests of the people in a form of food supply, as in a form of sport.” x As already stated, the authorities are not agreed. One line of authorities is represented by the opinion of Justice O’Brien; the other by the opinion of Justice Gray. The question, however, is not a new one in this State. It was presented in the case of People v. O'Neil, 110 Mich. 324 (33 L. R. A. 696), where it was held, Justice Montgomery speaking for the court, that the statute applied to fish and game taken outside the State, and is within the police power of the State. See, also, State v. Shattuck (Minn.), 104 N. W. 719, and the cases therein cited. Judgment is affirmed. McAlvay, Grant, Blair, Montgomery, and Hooker, JJ., concurred with Moore, J.