The questions certified for our decision are questions of law, which were raised below by the demurrer to the defenses interposed in the action. They are these: Are the facts that these fish were lawfully taken in the Dominion of Canada and that they were purchased there by the defendant and by it imported into the state of New York, upon payment of the duties fixed pursuant to the United States tariff laws, a good answer to the claim of the People that the Fisheries Law has been violated by having such fish in possession and is the state statute, for inhibiting the possession during the close season of this state, in conflict with the Federal Constitution, or with the Constitution of this state?
It is not, nor can it be, seriously contended, as I think, that the law is in conflict with any of the provisions of the Constitution of the State. The case of Phelps v. Racey, (60 N.Y. 10), should be conclusive upon that point; whatever may be said of it upon the Federal question raised. The Federal question is whether the statute, in the particular feature in question, violates, or infringes upon, the provisions of the Constitution of the United States, which authorize Congress to regulate commerce with foreign nations and between the states. The defendant's contention upon that ground has been sustained below. The theory of Mr. Justice LAMBERT'S opinion at the Trial Term, which was adopted by the justices of the Appellate Division, is, as I apprehend it, that in making unlawful the possession of property, which has been imported under the sanction of the Federal tariff laws, the enactment of those provisions of the Fisheries statute by the legislature conflicted with the power vested in Congress under the commerce clause of the Federal Constitution referred to.
It was, also, observed by the learned justice, in his opinion, that "the object of the statute is to protect the game fishes in the waters of the state, and that object is not promoted by depriving citizens of their property in fish, which have been caught and killed outside of the jurisdiction of the state, and which have become component parts of commerce, and the law cannot, therefore, be sustained as an exercise of the police power *Page 109 except as it deals with those fish which may have been taken within the jurisdiction of the state." Prior to this decision of the learned court below, Phelps v. Racey was regarded as settling the question of the legislative power to do just what has been done in the law now attacked. That was an action which was brought under the Game Law of 1871, to recover penalties against the defendant for having in possession, contrary to the statute, certain game birds during the close season. The defense was that the defendant became possessed of them during the open season, or they were received from the states of Minnesota, or Illinois, where the killing at the time was lawful. Thus the situation was the same as in the present case; so far as it presented the legal questions. It was there held that the fact alleged that the game "was either killed within the lawful period, or brought from another state where the killing was lawful" constituted no defense; inasmuch as the penalty was denounced against the selling or possession, irrespective of the time or place of killing. The objection of a want of power in the legislature to pass the act was held to be untenable and it was said that the measures best adapted for the protection and the preservation of game "are for the legislature to determine and the courts can not review its discretion. If the regulations operate, in any respect, unjustly or oppressively, the proper remedy must be applied by that body;" and the provisions of the act, though seemingly stringent and severe, were not "foreign to the objects sought to be attained, or outside of the wide discretion vested in the legislature." In speaking of the argument that the law violated the commerce clause of the Federal Constitution, Chief Judge CHURCH deemed it unnecessary to consider "how far the exercise of the power of Congress under the provision would interfere with the authority of the state to pass game laws, and regulate and prohibit the sale and possession of game either as a sanitary measure or for its protection as an article of food. It will suffice for this case that the statute does not conflict with any law which Congress has passed on the subject." The authority of this case upon the constitutional *Page 110 right to enact such laws has been widely recognized in the state courts, where similar statutory provisions were assailed, and, among other cases, might be cited those of Magner v. ThePeople, (97 Ill. 320); Commonwealth v. Savage, (155 Mass. 278); State v. Rodman, (58 Minn. 393), and Roth v. State, (7 Ohio C.C. 62). In England the case of Whitehead v.Smithers, (L.R. [2 Com. Pl. Div.] 553), may be referred to as in point; where Chief Justice COLERIDGE observed of the act for the protection of wild fowl, passed in 1876, that "the object is to prevent British wild fowl from being improperly killed and sold under pretence of their being imported from abroad." (And see Price v. Bradley, L.R. [16 Q.B. Div.] 148, upon the Fresh Water Fisheries Act.)
In the court below, Phelps v. Racey was deemed to be no longer controlling; for the reason that its principles have been "overruled by subsequent judicial authority." The reference is to that part of the opinion which suggests the proposition that, in the absence of the enactment of a law by Congress, the states may regulate commerce among themselves. This doctrine, though supported by authority at the time, (Pierce v. New Hampshire, 5 How. [U.S.] 504), would seem to have been overruled by later cases, (Leisy v. Hardin, 135 U.S. 100; and Schollenberger v. Pennsylvania, 171 ib. 1); which hold that laws inhibiting the receipt of an imported commodity, or its disposition, amount essentially to a regulation of commerce with foreign nations, or among the states. I consider, however, that the Fisheries Law presents no conflict with the commerce clause of the Federal Constitution and that it is purely a governmental regulation, within the legitimate exercise of the police power of the state, relating to a matter essentially of internal policy, as affected by a common public interest. It was quite unnecessary to the decision of Phelps v. Racey that Chief Judge CHURCH should have expressed himself as he did upon the question of the bearing of the statute upon the commerce clause of the Federal Constitution, and it did not prevent the decision from being controlling upon the main question. There is no question of *Page 111 interstate or foreign commerce, in my opinion, but, merely, one of whether, in the interest of the protection and preservation of game fishes, the legislature may not competently enact a statute so stringent in its provisions as to insure the accomplishment of the end in view; however it might result in an apparent restriction of the liberty of the citizen. Compared with the legislation which was sustained in the grain elevator cases, (People v. Budd, 117 N.Y. 1, affirmed in 143 U.S. 517), where the right of the legislature to fix the maximum charge which a person might make, in his own business, for elevating grain, and to limit the charge for shoveling to the actual cost, was upheld upon the theory that the business was one which, by reason of its magnitude and character, was affected by a public interest, this statute is mild, indeed. The exercise of the police power, which is necessarily vested in the state government for the proper regulation of matters which concern the well-being and prosperity of the community, within constitutional limits, rests in the wise discretion of the legislature. When its operation is in the direction of so regulating the use of private property, or of so restraining personal action, as to secure, or to tend to, the comfort and welfare of the community, no constitutional guaranty is violated. (People v. Ewer, 141 N.Y. 129.) It is implied in the social compact that, in matters of public concern, the interest of the individual shall always yield to that of the public. The legislature is not the final judge as to what is a proper exercise of the police power and its acts in that direction are subject to review in the courts; but, where a public and beneficial purpose is evident, the courts will not substitute their judgment for that of the legislative body. The remedy must be found in an appeal to the legislative wisdom.
In Geer v. Connecticut, (161 U.S. 519), a case arising under the Connecticut statute in relation to game birds, it was said that "the right to preserve game flows from the undoubted existence in the state of a police power to that end, which may be none the less efficiently called into play, because by doing so interstate commerce may be remotely *Page 112 and indirectly affected (citing cases). Indeed, the source of the police power as to game birds * * * flows from the duty of the state to preserve for its people a valuable food supply." (CitingPhelps v. Racey and other cases.) In Lawton v. Steele, (152 U.S. 133, affirming our decision in 119 N.Y. 226), the police power of the state was discussed and it was said that "the preservation of game and fish has always been treated as within the proper domain of the police power," and that "the state may interfere whenever the public interests demand it and in this particular a larger discretion is necessarily vested in the legislature, to determine, not only what the public interests require, but what measures are necessary for the protection of such interests." (Citing cases.) "It must appear," the opinion holds "first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second that the measures are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals."
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 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. *Page 113
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. I cannot understand its being likened to such legislation as was condemned in People v. Hawkins (157 N.Y. 1). There the act required all goods made by contract labor to be labelled "convict made," when possessed and offered for sale, and it was held to be repugnant to the commerce clause of the Federal Constitution; because "a regulation of commerce by means of which the value of merchandise made in another state was to be depressed, or its sale prohibited." It was a restriction upon the freedom of commerce to permit the same articles to be put upon the market freely, if made in factories; when, if made in a prison in another state, a citizen, having lawfully purchased them, could not expose them for sale without branding or labelling them as "convict made."
Nor can I perceive that the doctrine of the oleomargarine cases is applicable. (Schollenberger v. Pennsylvania, 171 U.S. 1.) There is a clear distinction between legislation, which discriminates with reference to a manufactured food product, not impure nor unhealthful, and legislation, which seeks to preserve the game fishes within the waters of the state, either as a natural article of food supply, or as a form of public sport. In the one case, there is an interference with commerce, as commerce; in the other case, commerce is not aimed at, but the preservation from extermination of the People's property in game fishes. In the one case, there is interference with commercial dealing in a manufactured product, which, not unreasonably, may be said to lack justification in those ordinarily recognized principles upon which the police power of the state is properly exercised; while, in the other case, the preservation from extermination of the game fishes within the jurisdiction of the state, reasonably, commends itself as legislation in the interest of preserving to the People a valuable natural and common food supply, which is deemed in danger of being destroyed and which it is, therefore, the duty of the state to prevent by the exercise of its *Page 114 undoubted police power. The Schollenberger case dealt with the prohibition by legislation of oleomargarine as a law "which prevents the introduction of a perfectly healthful commodity, merely for the purpose of in that way more easily preventing an adulterated and possibly injurious article from being introduced. We do not think this is a fair exercise of legislative discretion, when applied to the article in question." (Per PECKHAM, J., at p. 15.)
I think if importations may be excluded, which might affect the public health, that they may be excluded, if tending to endanger the enforcement of a law intended to protect and to preserve the People's property rights in game and fishes. There is no danger that legislative encroachments upon individual rights will be encouraged by such a decision. The presumption, which obtains in favor of the constitutionality of legislative acts, is not met here by any reasonable objection. The only, and the evident, object of the statute is to protect the game fishes mentioned during a season allowed for breeding and development and must surely be within the admitted range of the duties of state government.
It should be observed, in connection with the views expressed, that by section 190 of the Code of Civil Procedure our jurisdiction to review is confined to the questions certified. In this case, they demand of the court whether the statute they refer to is in conflict with any provision of the State, or the Federal, Constitution. Other questions are not here; which might be suggested as affecting the construction of the statute in its effect upon some exercise of private rights, in one way or another.
I think that the judgment should be reversed and that the questions certified should be answered in the negative.
PARKER, Ch. J., and LANDON, J., concur with O'BRIEN, J., and WERNER, J., concurs on first ground stated in opinion; HAIGHT and MARTIN, JJ., concur with GRAY, J., for reversal.
Judgment affirmed, and questions certified answered in the affirmative. *Page 115