Relator was arrested in Calhoun County by virtue of a warrant issued on complaint and information filed, charging him, in substance, with the unlawful sale, and offer to sell, of two wild ducks, and that he had same in his possession, and sold said ducks to one Fred Montier. Thereupon he made application to the Honorable J.C. Wilson, Judge of the District Court of *Page 190 Calhoun County, for writ of habeas corpus. On a hearing before said judge he was remanded to the custody of the sheriff to await trial in the County Court of Calhoun County on the information therein filed against him. Thereupon he prosecutes an appeal to this court, and rests the appeal, substantially, on the proposition that the act of the Legislature making the sale of wild game not in the closed season unlawful, is unconstitutional and void.
The agreed statement of facts shows that on the day charged the relator had in his possession for the purpose of sale and offer for sale, and did sell to one Fred Montier in Calhoun County, two wild ducks, which had been killed by him on said day, and that during this day he did not kill more than twenty-five wild ducks; that these ducks so killed and sold were game birds and came within the purview of the Act of the Thirtieth Legislature, Chapter 144, secs. 1 and 5, pages 278 and 279, and that having said wild ducks in his possession for the purpose of sale and offering same for sale, and selling same, was prohibited by said act of the Legislature and made by law a misdemeanor; that his arrest was by virtue of a capias based on a valid complaint and information, and he had been duly arrested by the sheriff of Calhoun County, was at the date of the trial and had been continuously since his arrest in the custody of the sheriff, and was still in custody.
While relator, in his brief, discusses a number of questions, some of which were more or less academic, the substantial proposition on which the case is rested is, "that the right to alienate property is a natural and necessary consequence to the ownership of property, and is a fundamental right and privilege guaranteed by the Constitution of the United States and of the State of Texas, and any law passed by the Legislature infringing or abridging this right is unconstitutional and void." And further, "The act of the Thirtieth Legislature, Chapter 144, and especially sec. 5 of said act, relating to the protection of game, is unreasonable and oppressive, and is an invasion of the fundamental rights and privileges of the citizens of this State and has no real or substantial relation to the object for which said act was passed, and is in effect a species of class legislation." We think that neither of these propositions can be sustained or that there is any valid objection to the law in question; that whatever may be thought as to its wisdom, its constitutionality is removed from the plane of serious attack or question. The general doctrine is well stated in 19 Cyclopedia of Law and Procedure, p. 1006. The rule is there thus laid down: "It is well established that by reason of the State's control over fish and game within its limits, it is within the police power of the State legislature, subject to constitutional restrictions, to enact such general or special laws as may be reasonably necessary for the protection and regulation of the public's right in such fish and game, even to the extent of restricting the use of or right of property in the game after it is taken or *Page 191 killed; and such statutes have been enacted in probably all jurisdictions. In England, Canada and the British provinces this power is in their respective parliaments or legislatures." Again, it is stated, "statutes have been enacted and held constitutional in most jurisdictions making it an offense and prescribing a penalty for any person to take or to kill or to have in his possession certain kinds of fish or game or any part thereof during a particular season of the year, commonly called the close-season, or as to certain game for a certain number of years, and as to some game, at any time, without a license. Statutes have also been enacted and held constitutional in some jurisdictions making it an offense to sell, offer for sale, or to have in possession for sale, certain fish and game during the close-season, or as to some game at any time; and these statutes have been held to apply, although such fish and game were acquired lawfully, or, under some statutes, without any wrongful knowledge or intent; and even though imported from another State or country." This precise question has never been before our court as here presented, but it has been before the courts of many of our States and before the Supreme Court of the United States quite frequently, and in every instance, so far as we have discovered, the law has been upheld.
The game law as passed by the Act of the Thirtieth Legislature, in section 1, in substance, declares that wild game in Texas is the property of the State. Such a legislative declaration has been approved and upheld in the cases of Geer v. Conn.,161 U.S. 519; Muel v. Peo., 198 Ills., 258; State v. Shattuck,104 N.W. 719, and McConnell v. McKillip, 99 N.W. 505. Such legislation has also been upheld in the Supreme Court of the United States, rendered only two weeks ago (Silz v. Hesterberg, vol. 29, p. 1, Supreme Court Reporter), wherein the Supreme Court held that it was not legal to have in one's possession game which was lawfully killed in another State, the possession of which was declared unlawful at the place where the game was stored. Thus holding, in effect, that the State can impose conditions upon which its game may be taken; and one of these conditions may be that the game so taken may not be sold. See also Ex parte Prince, 30 S.W. Rep., 722; People v. Boothe, 86 N.Y. 272. In those cases it is held, among other things, that the nontransportation of game may be a lawful condition to its capture and the State may ordain that its game shall not be transported outside of the State where killed. The same question, in effect, was also ruled to this same substance in the case of People v. Hagan, 72 Pacific, 826; and State v. Heger, 93 S.W. Rep., 252. The last named case is a well considered opinion by the Supreme Court of Missouri, where the matter is exhaustively considered and the history of such legislation is discussed at great length.
In that case, Presiding Judge Burgess of that great court, says: "The authorities are uniform in holding that the absolute ownership *Page 192 of wild game is vested in the people of the State, and that such is not the subject of private ownership. As no person has in such game any property rights to be affected, it follows that the Legislature, as the representative of the people of the State, and clothed by them with authority to make laws, may grant to individuals the right to hunt and kill game at such times, and upon such terms, and under such restrictions as it may see proper, or prohibit it altogether, as the Legislature may deem best. Haggerty v. Ice Manufacturing Storage Co., 143 Mo., 238,44 S.W. 1114, 40 L.R.A., 151, 65 Am. St. Rep., 647; Geer v. St. of Conn., 161 U.S. 519, 16 Sup. Ct., 600, 40 L.Ed., 793; American Express Co. v. People, 133 Ill. 649, 24 N.E. 759, 9 L.R.A., 138; 23 Am. St. Rep., 641; Ex parte Maler, 103 Cal. 476,37 P. 402, 42 Am. St. Rep., 129; State v. Rodman, 58 Minn. 393,59 N.W. 1098; Magner v. People, 97 Ills., 320; Phelps v. Racey, 60 N.Y. 10, 19 Am. Rep., 140. As it is shown by the agreed statement of facts that defendant had in his possession in the city of St. Louis, and sold to E.W. Kuchans on the 27th day of June, 1905, all of the game birds mentioned in the information, he was guilty of the violation of the law, it matters not that the birds, except the quail, were killed in and shipped to defendant from other States, unless it be shown that his constitutional rights are violated by the act in question.
"In the leading case upon this subject (Geer v. Connecticut,161 U.S. 519, 16 Sup. Ct., 600, 40 L.Ed., 793) Mr. Justice White, says: `From the earliest traditions the right to reduce animals ferae naturae to possession has been subject to the control of the lawgiving power.' In speaking of this power, in Haggerty v. Ice Mfg. Storage Co., supra, Sherwood, J., said, `The exercise of this power has been definitely traced back even as far as the time of Solon, who forbade the Athenians to kill game. And in France as early as the Sallic law, the right to reduce a part of the common property in game to possession, and consequent ownership, was regulated by law. Such regulations prevailed in every country in continental Europe and in England. Treating of this subject, Blackstone says: `There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before — the property of such animals ferae naturae as are known by the denomination of `game,' with the right of pursuing, taking and destroying them, which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. . . . In the first place, then, we have already shown, and, indeed, it can not be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use all such creatures as are ferae naturae, and therefore the property of nobody, but liable to be seized by the first occupant, and so held by the imperial law even so late as Justinian's time. . . . But it follows, *Page 193 from the very end and constitution of society, that this natural right, as well as many others belonging to a man as an individual, may be restrained by positive laws enacted for reasons of State or for the supposed benefit of the community.' 2 Bl. Com., 410. This prerogative of the king as an attribute of government, recognized and enforced by the common law of England by appropriate and oftentimes by severe penalties and forfeitures, was vested in the colonial governments of this country, and when those governments threw off the yoke of the mother country, that right of sovereignty passed to and was vested in the respective States. This sovereign attribute and power as existent in the States of this Union has often been exercised by them by passage of laws in the most of these States for the protection and preservation of game, and it seems never to have been called in question. Numerous adjudications attest this fact. In such cases the common ownership of game, which otherwise would remain in the body of the people is lodged in the State, to be exercised like all other governmental powers in the State in its sovereign capacity, to be exercised in trust for the benefit of the people, and subject, of course, to such regulations and restrictions as the sovereign power may see fit to impose. Such regulations appropriately fall within the domain of the police power of the State."
Again, substantially the same question was before the Supreme Court of the United States in the case of New York ex rel. August Silz v. Hesterberg, in error to the Supreme Court of New York, vol. 29, No. 1, Supreme Court Reporter. In that case relator had imported from abroad one golden plover and also one imported black cock. In the opinion the Supreme Court refers with approval to the case of Geer v. Connecticut, supra, and as a result of a full discussion and analysis of the case, lays down the rule in this language: "The power of a State to protect, by adequate police regulations, its people against the adulteration of articles of food (which was, in that case maintained), although in doing so commerce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the State, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the State, and subject to the conditions which it may deem best to impose for the public good." This opinion is not altogether in harmony with the views indicated in the case of Hall v. State, 52 Tex.Crim. Rep., 106 S.W. Rep., 149, in which Judge Davidson uses this language: "We deem it hardly necessary, in the attitude of the case, to decide the question of the authority of the Legislature to authorize a party to catch fish and reduce them to his possession, and acquire ownership and property in them, and then punish the party for the sale of such fish. In the opinion of the writer, the Legislature would hardly *Page 194 have such authority. After it became his property, and it was acquired as authorized by the Legislature, it would occur to the writer that the party would have a right to dispose of his property. That the Legislature is clothed with authority to protect game and fish in order to prevent their destruction is a sound proposition. That they may limit the manner of taking the fish to the ordinary hook and line, or by means of the trot line, is in line with the same thought, but how it could be a protection to fish or game to prohibit their sale after they are taken from the water and reduced to possession and ownership, the writer does not understand. There may be a proper exercise of police power in limiting the manner of catching, and the Legislature might even go further, and limit the amount to be caught, and this would be a protection equally with the manner and means as to how they should be caught; but a different question is involved, as the writer understands it, in regard to the prohibiting of a sale where the party has legitimately taken the fish. These, however, are but the views of the writer." We think the vice of this view rests in the fact that fish and game, being by legislative enactment and declaration the common property of the whole people and part of the food supply of the State, the Legislature has not only the authority to regulate the slaughter of such game, but to make such laws as may be necessary to accomplish this purpose and as may and will defeat evasions and prevent violations of this law. "Lead us not into temptation, but deliver us from evil" is not only a suggestion of the Holy Writ as a form of supplication, but not infrequently forms a part of legislation. The limit to which game may be killed is already very large. If no profit results to the sportsman he may well be trusted to limit the spoil of his gun to the number allowed by law. If he may make merchandise of game, there is a constant temptation to kill indiscriminately, and in view of the difficulty of ascertaining what is being killed, it would doubtlessly lead in practice to frequent, continuous and shameless violations of the law. The same power that has the right to send out the decree that the citizen shall not slaughter game at all, or that he shall kill so many and no more, has the right, to make these enactments effective, to enact the further provision that no sale of such game shall be made at all. If the Legislature can, for nine months in the year, prevent either the sale or slaughter of game, can it not, for the better protection of game, limit the sale for the entire year? We think there can be no escape in logic or reason from this view.
We have thus discussed the question at some length, not that we believe there is any difficulty in its proper solution, but, as there has been some difference and doubt in the decisions of the inferior courts, it has been thought best in authoritative decision to give some reference to the sources where a correct rule may be found. Believing the action of the District Court was wholly in accordance *Page 195 with law, the judgment of the court below is in all things affirmed and relator remanded into custody.
Relator remanded to custody.