I am unable to concur in the prevailing opinion. The possession of the birds at the time alleged in the complaint and stated in the stipulation was, under the Forest, Fish and Game Law, unlawful (Laws of 1900, chap. 20, § 22, as amd. by Laws, of 1901, chap. 396; Id. *477§§ 23, 25, as amd. by Laws of 1900, chap. 601; Id., § 28), and by reason thereof the defendants were liable to the penalty specified in section 39 of that act (as amd. by Laws of 1900, chap. 741). The act is not unconstitutional. (Phelps v. Racey, 60 N. Y. 10; People v. Buffalo Fish Co., 164 id. 93.) Nor is it in conflict with subdivision 3 of section 8 of article 1 and section 1 of the 14th amendment of the Federal» Constitution or acts passed by Congress regulating commerce between the States. (Matter of Rahrer, 140 U. S. 545 ; Rhodes v. Iowa, 170 id. 412; Vance v. W. A. V. Co. No. 1, Id. 438.)
The prevailing opinion entirely overlooks or ignores section 5 of the act of Congress (31 U. S. Stat. at Large, 188) commonly called the “ Lacey Act,” approved May 25, 1900, and if it had not, then it seems to me clear a different conclusion would have been reached. This section provides: “ That all dead bodies or parts thereof of any foreign game animals, or game or song birds, the importation of which is prohibited, or the dead bodies or parts thereof of any wild game. animals or game or song birds transported into a,ny. State or Territory or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers to the same extent and in the same manner as though such animals or birds had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” It is true that the validity and ■ effect of the section quoted have not, so far as I have been able to discover, been judicially passed upon, but a similar act of Congress in respect' to intoxicating liquors has. The “ Wilson Act,” so called, approved August 8, 1890, provides : “ That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory and shall not be exempt therefrom by reason "of being introduced therein in original packages *478or otherwise.” (26 U. S. Stat. at Large, 313, chap. 728.) This act was first considered by the Supreme Court of the United States in Matter of Rahrer (supra) in relation to a ¡statute of the State of Kansas, which provided that any person who should manufacture, sell or barter any spirituous liquors should be guilty of a misdemeanor and upon conviction should be punished as therein provided. (1 Genl. Stat. Kansas [1889], chap. 31, § 380 et seq.) On the day following the approval of the Wilson Act, August 9, 1890, one Rahrer sold, in the State of Kansas, a keg of beer in the original, package in which it had been transported to him from another State. He was arrested for violating the statute of Kansas referred to, and thereupon, by writ habeas corpus, he obtained his discharge (43 Fed. Rep. 556), but on appeal the,action of the lower court was reversed and the relator remanded as subject to and to be proceeded against for a violation of the State statute. In disposing of the case the court held that the Wilson Act was constitutional and after it took effect liquors imported into the State of Kansas were subject, both as to posses^ sion and sale, to the existing laws of that State and it was unnecessary, after the passage of the Wilson Act, to re-enact the State law in order to make it operativé upon such liquors. Chief Justice, Fuller, speaking for the court, said : “ It appears from the agreed statement of facts that this liquor arrived in Kansas prior to the passage of the act of Congress, but no question is presented here as to the right of the importer in reference to the withdrawal of the property from the State, nor can we perceive that the congressional enactment is given a retrospective operation by holding it applicable to a transaction of sale occurring after it took effect. This is not the case of .a law enacted in the unauthorized exercise of a power exclusively confided to Congress but of a law which it was competent for the State to pass but which could not operate upon articles occupying a certain situation until the passage of the act of 'Con-. gress. That act, in terms, removed the obstacle and we perceive no adequate ground for adjudging that a re-enactment of the- State, law was required before it could have the- effect upon imported, which it had always had upon domestic property.” „
The same'act again came under consideration in Rhodes v. Iowa. (170 U. S. 412). There Rhodes was' convicted before a justice of the peace of the State of Iowa for transporting into that State, in *479violation of its law, intoxicating liquors from the State of Illinois. The conviction was affirmed by the Supreme Court of Iowa (State v. Rhodes, 90 Iowa, 496), but reversed by the Supreme Court of the United States on the sole ground, however, that the liquors, when seized, had not reached their destination. Referring to the contention that the statute of Iowa did not apply to liquors obtained outside the State, Hr. Justice White, citing with approval Matter of Rahrer (supra), said : “ It is not gainsaid that the effect of the act of Congress (with respect to imported liquors) was to deprive the receiver of goods shipped from another State of all power to sell the same in the State of Iowa in violation of its laws * * * It has been settled that the effect of the act of Congress is to allow the statutes of the several States to operate upon packages of imported liquor before sale.” It was also considered in Vance v. W. A. V. Co., No. 1 (supra). There an injunction had been obtained restraining the defendants from interfering with intoxicating liquors shipped from the State of California to the State of South Carolina in violation of the statutes of the latter State. The court held that the injunction should be dissolved ; that under the Wilson Act intoxicating liquors transported from one State to another became — as soon as the act of transportation was complete t- subject to the laws of the State into which they were brought.
Applying the rule laid down in these decisions, as to the effect of the Wilson Act upon State statutes existing at the time of its passage with reference to intoxicating liquors, to the Lacey Act and its effect upon the statute of this State as to the possession of game, but one conclusion, as it seems to me, can be reached, viz., that the defendants were liable to the penalty provided by the statute of this State for having the birds mentioned in the stipulation at the time therein stated, and this notwithstanding the fact that they were in the original packages in which they were received from other States.
The Wilson and Lacey Acts are similar, except one relates to intoxicating liquors and the other to game. The Kansas statute, which was involved in the decision in the Rahrer case, provides that intoxicating liquors shall not be manufactured, bartered or sold in that State, and the New York statute, under which the penalties here are sought to be recovered, provides that birds of the kind men*480tioned in the stipulation shall not be sold or possessed at stated times. Both of these statutes were passed in the exercise of the police powers of the respective States, and after they became laws one applied to liquors produced and the other to game taken in the State, but neither of them to that which was transported into the State until after Congress had given its consent thereto. (Leisy v. Hardin, 135 U. S. 100.) That consent, however, was given by acts which might well be termed enabling acts — the Wilson Act in the one case and the Lacey Act in the other — and thereafter the State statutes applied equally to that which came from without as to that produced or taken within it. There is, therefore, no force in the suggestion that the Lacey Act has no application since the statute of the State of Mew York under which the penalties are sought to. be recovered was passed prior thereto. The statute is' general in terms. It applies, so far as the possession of the birds mentioned during the closed season is concerned, to those taken or procured outside of the State as well as to those taken within it, and Congress has' given its consent by the Lacey Act to the enforcement of that "statute against birds imported into the State. This same contention was made in the Rahrer case, and the court, as already indicated, held that a re-enactment of the State statute was unnecessary, and the same view was reiterated in the Rhodes and Vance eases. This also is the view of the court of last resort in every State, so far as I have been able to discover, where the question has been presented. (State v. Intoxicating Liquors, 95 Maine, 140; Starace v. Rossi, 69 Vt. 303; State v. Bixman, 162 Mo. 1. See, also, Commonwealth v. Savage, 155 Mass. 278; Magner v. People, 97 Ill. 320; Roth v. State, 51 Ohio St. 209 ; People v. O'Neil, 110 Mich. 324; State v. Rodman, 58 Minn. 393; Ex parte Maier, 103 Cal. 476; Price v. Bradley, 16 Q. B. Div. 148.)
Mor do these views conflict in any way with People v. Buffalo Fish Co. (supra) as I read that case. There the court held that the former statute similar to the one here under consideration was constitutional, but so far as fish was concerned it only applied to that taken within the State. This was but applying the rule laid down. in Leisy v. Hardin (supra), and it must necessarily be so, inasmuch as there was rió act of Congress making imported fish subject to the laws of the State into which it was imported. The *481case would be in point except for the Lacey Act. That act, as already said, makes the State statute applicable to game imported into the State.
I am of the opinion, in view of the authorities cited, that the defendants are liable for the penalty provided in the statute for having the birds unlawfully in their possession, and if I am correct in this, then it necessarily follows that the judgment should be reversed. If, however, the conclusion is incorrect, then it seems to me the judgment should be modified by reducing the extra allowance from $2,000 to $498. The court, under section 3253 of the Code of Civil Procedure, made an extra allowance of $2,000 as costs. There is no basis for such an award. That section provides that a sum not exceeding five per centum on the sum. recovered or claimed, or the value of the subject-matter involved, may be awarded. Under the stipulation the total amount claimed was $9,960, a penalty of $60 and an additional penalty of $25 for each of the 396 birds mentioned. Five per cent of this sum is $498, and that is all that could be awarded.
Judgment affirmed, with costs.