The legislature well knew when it passed the Forest, Fish and Game Law that the pothunter and the marketman are the greatest obstacles in the way of protecting the deer of the state from destruction. Without a market the pothunter has no inducement to violate the law, and without resort to the usual agencies of transportation the marketman cannot violate the law. The market for deer was the evil aimed at by the legislature when it forbade the transportation of venison by any common carrier. A single carcass, when accompanied by the owner, was excepted from the prohibition in the interest of those who hunt for sport and not for the market. The statute should be construed in the light of the evil it sought to remedy, and when it says that deer shall not be transported, making no exception of tame deer, I think it means all deer. The presumption is that if the legislature had intended to except tame deer it would have said so and would have surrounded the exception with proper safeguards to prevent evasion, as it did when permitting the shipment of a single carcass. The courts have no right to read an exception into the statute when the legislature left it out. If one man in the entire state wishes to establish a peculiar industry that needs special legislation, he should not call upon the courts for it.
While tame ducks and geese can be distinguished from the wild, nature has placed no distinguishing marks upon deer so that one kind can be told from the other. The furtive ingenuity of pothunters and marketmen would laugh at the suggestion that tame deer should be plainly marked when presented for transportation, for what is there to prevent them from marking wild deer in the same way? Hereafter, when the carcass of a deer labelled, "This is a tame deer from a private park," is presented to the defendant to be transported to market its agent will be obliged to accept it, and thus the barrier erected by the legislature against evasion of the law will be broken down.
The power of the legislature to prohibit the transportation or sale within the state of fish or game captured without is *Page 368 not open to question since the decision of the Supreme Court of the United States, affirming our own, in People ex rel. Sile v.Hesterberg (184 N.Y. 126; 211 U.S. 31). If the legislature by the use of general terms intended to prohibit the sale here of birds of a kind that never grew here, as held in that case, how can we say in this case that it did not intend to include all deer in its prohibition against the transportation of deer when it made no exception of tame deer, and the evil aimed at was the exposure of deer for sale in the market? If, as it is conceded, the legislature in forbidding the killing of deer during the close season without limiting the prohibition to wild deer meant to include all deer, why did it not have the same intention when it used similar language in dealing with the transportation of deer? The wishes of a few should not prevail against the interests of the many, which the legislature intended to protect, and I vote to affirm the judgment appealed from upon the prevailing opinion below. (119 App. Div. 315.)
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, WERNER and HISCOCK, JJ., concur with WILLARD BARTLETT, J.; VANN, J., reads dissenting opinion.
Judgment reversed, etc.