This action was brought to recover penalties for a violation of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd.), the defendants being charged with the possession of various birds at different times between May 23, 1901, and June 1, 1901. The defendants demurred to this complaint and the demurrer was sustained as to counts 14 to 19 of the complaint inclusive and ovérruled as to counts 1 to 13 inclusive (40 Misc. Rep. 27). Both parties seem to have appealed to this court where the judgment below was affirmed without an opinion (72 App. Div. 619), and on a subsequent appeal to the Court of Appeals the judgment was affirmed upon the opinion of the Special Term (173 N. Y. 622). The case then came on for trial before a jury and was submitted upon an agreed statement of facts. It was stipulated that the defendants, “ between the 22d day of May, 1901, and the 2d day of June of that year, possessed at the city and county of New York, 100 grouse, 100 quail, 96 woodcock ánd 100 ducks, and being of the same grouse, quail, woodcock and ducks mentioned and described in the first thirteen counts of the complaint in the above entitled action; ” that “ all of the said grouse, quail, woodcock and ducks *471were caught and killed outside of the State of New York, to wit, in other States of the Union, and were purchased and acquired by the defendants and exported from the States in which they were caught and killed to them in this State, at a time when it was lawful to possess them in the State of New York, to wit, during the month of November, 1900, and that the defendants received and kept the same on storage, at the county and city of New York, from that time to the commencement of this action, and that they were of the fair market value of five thousand ($5,000) dollars.” Upon the trial the complaint was dismissed, and the plaintiff appealed.
The first thirteen counts of the complaint were alike in form, except as to the specific birds and the time. The first count alleged that “ on the 23d day of May, 1901, at the said city and county of New York, the defendants, copartners as aforesaid, unlawfully, wilfully and knowingly possessed four hundred and ninety-six (496) grouse and two hundred and thirty-six (236) quail during the close ■season for said grouse and quail respectively, contrary to the form of the statute in such case made and provided. That by reason of the premises the defendants then and there became liable to a penalty of sixty dollars, and to an additional penalty of twenty-five dollars for each bird, grouse and quail so possessed, to wit, the sum of eighteen thousand three hundred dollars.” These counts were held to state facts sufficient to constitute a cause of action. Upon the trial it appeared that these birds had been taken out of the State of New York, purchased by the defendants outside of the State and imported into this State at a time when persons in this State were authorized to take such birds and have possession thereof, and the birds have remained in the possession of the defendants in the original packages from the time of such importation until the time the complaint alleged that the defendants possessed the same. The defendants having thus lawfully become the owners of these birds at the time when the possession and ownership of such property was authorized by the law of this State, the question is directly presented as to whether the Legislature could make the subsequent possession of these birds a crime. That these 'birds thus acquired by the defendants and imported into this State when such importation was allowed by the law of this State were property, cannot be seriously questioned. It is agreed that they were of the value of $5,000, and *472when purchased and imported into this State by the defendants neither the State nor any one acting under its authority could confiscate or appropriate this property without making compensation to the defendants therefor. They were protected by the provisions of séction 6 of article 1 of the State Constitution, subject, however, to the police power of the State, which would include the right of the State to prevent the sale of articles of food which would be. injurious to the public health. Subject to this power, however, the defendants had a right to possess the birds, to sell them or make such disposition of them as they pleased. It was held by the learned justice who determined the demurrer in this case, which opinion was adopted by the Court of Appeals, that the possession of birds at the forbidden season within the State is prima facie evidence that the possessor had violated the law, and that the burden was then cast upon him to show that the possession was legal. Thus, upon the trial of the case there was imposed upon the defendants to escape liability the obligation of showing that the possession of these birds in May and June, 1901, was not a violation of the statute, and the question is, therefore, presented whether the provisions of this law require us to hold that the Legislature intended to make the mere possession of property to which the possessor had the legal title, a crime, and whether, if the Legislature intended to accomplish that result, it was in violation of the provisions of the Constitution. Section 6 of article 1 of the Constitution provides that no person shall “ be deprived óf life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.” Since this provision has been a part of the fundamental law of the State it has been universally held that the possessor of property is entitled to its full beneficial use and free enjoyment, and that such use and enjoyment of property cannot be directly or indirectly affected except by due process of law. Thus, in Forster v. Scott (136 N. Y. 577), the court said what it seems to me is directly applicable to the questions presented in this case: “ This case is governed by a few principles so well settled and understood that they are elementary, and nothing can be added to their force or application by illustration or extended discussion. The validity of a law is to be determined by its purpose and its reasonable and practical effect and operation;' though enacted under the guise of some general power, *473which the Legislature may lawfully exercise, but which may be and frequently is used in such a manner as to encroach, by design or otherwise, upon the positive restraints of the Constitution. What the Legislature cannot do directly, it cannot do indirectly, as the Constitution guards as effectually against insidious approaches as an open and direct attack. Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the Constitution. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. It is not necessary in order to render a statute obnoxious to the restraints of the Constitution that it must in terms or in effect authorize an actual physicahtaking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.” If the free beneficial use and right of disposition of property are thus protected by the Constitution, an act which makes the mere possession of property a crime and imposes upon the possessor a penalty is certainly a direct legislative interference with the beneficial use and •liberty of disposition of the property. If an act of the Legislature attempted to make the mere possession of a barrel of flour or a bushel of wheat a crime, there could be, I suppose, no question but that it would be a violation of section 6 of article 1 of the Constitution. (Matter of Jacobs, 98 N. Y. 98, 105 et seq., and cases there cited.) Wherever these birds became the property of the defendants and lawfully possessed within this State, it seems to me that such ownership and possession were as much protected by the Constitution as was any other kind of property similarly situated, and that if the construction sought to be given to this statute by the learned counsel for the plaintiff is correct, it was beyond the power of the Legislature.
I have not considered the act of Congress of May 25, 1900 (31 U. S. Stat. at Large, 187, chap. 553), as that act could only have the effect of preventing the provision of subdivision 3 of section 8 of article 1 of the Federal Constitution as to interstate com-, merce from applying to property of this character imported into this State. It did not and could not affect the application of *474section 6 of' articlé 1 of the Constitution of this State which prohibits the Legislature from, depriving a person of property without due process of law. It may be conceded that since the passage of this act of Congress these birds, when imported into this State from any other State or Territory, became subject to the operation and effect of the laws of this State, enacted in the exercise of its police power, to the same extent and in the same manner as though such birds had been produced in this State, but that act certainly could not abrogate the provisions of section 6 of article 1 of the State Constitution which prohibit the Legislature from depriving the defendants of their property without due process of law. Entertaining these views, we have to examine the statute to. see Whether it must necessarily be construed so ás to accomplish what would be a violation of this constitutional provision.
Section 22 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1901, chap. 396) provides that the close season for quail shall be from December sixteenth to October thirty-first, both inclusive. Section 23, as amended by chapter 601 of the Laws of 1900, provides that woodcock shall not be taken from December sixteenth to September fifteenth, both inclusive. Section 25, as amended by chapter 601 of the Laws of 1900, provides that the close season for grouse shall he from December sixteenth to- September fifteenth, ■ both inclusive. Section 28 provides that woodcock, grouse and quail shall not be sold' or possessed during the close season, except in the month of December, and the possession or sale thereof during the last fifteen days of December. shall be presumptive evidence that they were unlawfully taken by the possessor. Section 39, as amended by chapter 741 of the Laws of 1900, provides that a person who violates any provision of article 2 is guilty of a misdemeanor and is liable to a penalty of sixty dollars, and to an additional penalty of twenty-five dollars for each bird or part of bird taken or possessed in violation thereof. Substantially the same provisions are contained in article 3 of the act in relation to certain fish. The provisions of sections 110 and 112 of the Fisheries, Game and Forest Law (Laws of 1892, chap. 488, as amd. by Laws of 1898, chap. 109, and Laws of 1896, chap. 531, respectively, as the title of the act of 1892 was amd. by Laws of 1895, chap. 395), which have been substantially re-enacted in article 3 of the Forest, Fish and Game Law, *475were-before the Court of Appeals in the case of People v. Buffalo Fish Co. (164 N. Y. 93). The appeal in that case presented, as this case presents, two questions: “ First, with respect to the true meaning and scope of the statute, and, secondly, if it means what the plaintiff insists it does, with respect to its validity; ” and it was held that “ The statute in question does not in terms, or by any reasonable implication, forbid a person to ‘ catch, kill or be possessed ’ of fish in a foreign country. We all agree that our statute does not forbid a person to catch or kill ’ fish of any kind in Manitoba, but it is said that when one brings the fish so caught or killed into this State the penalties of our statute attach to him at once. With all respect I am constrained to say that this is not a reasonable or tolerable interpretation of a penal statute. What it means and all it means is to forbid any person to catch, kill or be possessed of the fish described from the waters of this State. The word ‘ possessed ’ obviously refers to those fish the catching or killing of which is forbidden ; that is to say, fish in the waters of this State, and not those procured in a foreign country. It is simply a perversion of the statute to hold that the mere possession by any person within this State of the fish described in the statute during the close season is a violation of it, without regard to the place where it was procured, or to the manner obtained. * * * In the case at bar the statute is pushed by a literal reading to a point quite as unreasonable. In' my opinion the law has no reference or application to a case where the fish have been imported from a foreign country. The conceded facts of this case take it out of the reason and policy of the law.”
We have thus stated for our guidance by the Oourt of Appeals a rule of construction which can be applied to this statute and which saves it from being a violation of the constitutional provision to which attention has been called. The Legislature had implied authority to protect the wild game of the State. To accomplish that purpose it prohibited the taking of certain birds during a certain portion of each year and then provided that those birds should not be sold or possessed during the close season, and provided a penalty for a violation of this prohibition. Beading these sections 'together they can be construed in accordance with the intent of the •statute to apply to certain specified birds taken within the State *476and that the sale or possession of such birds during the close season is' a violation of the provision of the law and imposes upon the possessor the penalty therein prescribed; but the statute was not intended to, nor does it, affect the possession or sale of birds taken in another State or country, the ownership of which had been acquired and which had been followed by importation into this State while such importation, and possession Were lawful and vested in the possessor the title to the property.
Our attention has been called to a case at the Trial Term of the Supreme Court (People v. A. Booth & Co., 42 Misc. Rep. 321) in which this question is quite fully discussed and where a conclusion is arrived at which substantially agrees with that before indicated.
I also think that the court had power to grant the allowance. The complaint demanded judgment for an amount exceeding $1,000,000. The elimination of the causes of action by the judgment sustaining in part the demurrer left a, demand against the defendants of several hundred thousand dollars. They were compelled to meet, that demand on the trial. The stipulation that the defendant agreed to showed that the action -could not have been brought for that amount. Subdivision 2 of section 3253 of the Code of Civil Procedure provides that the court may in its discretion award to either party “a sum not exceeding five per centum upon the sum recovered or claimed.” There Was no recovery, so the amount must be based upon the sum claimed; and the sum “ claimed ” was the amount of the judgment demanded by the pleadings, and that amount, eliminating the causes of action as to which the demurrer was sustained, would justify the allowance granted.
It follows that upon the agreed statements of facts we agree with the learned justice below and that the judgment should be affirmed, with costs.
Patterson and O’Brien, Jj., concurred; Van Brunt, P: J., concurred in result; McLaughlin, J., dissented.