(dissenting):
Section 8.of the Forest,.Fish and Game Law, the proper construction of which is to be determined on this appeal, provides as follows : “ Deer or venison killed in this State shall not be transported from or through any county or possessed for that purpose, except as follows: One carcass or a part thereof may be transported from the county where killed when accompanied by the owner. Ho person shall-transport or accompany more than two deer in any year under this section. Deer or venison killed in this State shall ■ not be accepted by a common carrier for transportation from Hovember nineteenth to September thirtieth, both inclusive, but'if possession is obtained for transportation after September thirtieth . and before midnight of Hovember eighteenth, it may» when accompanied by the owner, lawfully remain in the'possession of such-common carrier the additional time necessary to deliver the same to its destination. Possession of deer or venison by a common carrier, or by any "person in its employ, while engaged in the busy *320ness ■ of such common carrier, unaccompanied by the owner, shall constitute a violation of this section by such common carrier.” .
The plaintiff is the owner of a private park, and engaged in propagating deer, which he desires to sell in the market for profit. He seeks an injunction restraining the defendant from refusing to accept the deer or venison, urging that under a proper construction of the statute defendant is bound to afford him an opportunity of reaching the market with the product of- his industry. At common law the plaintiff has a complete.property right in the deer which he raises under the conditions set forth in the complaint so long as he keeps them confined and subject to his dominion. (2 Black. Comm. 392, 393.) It is not to be doubted that it is the common-law duty.of the defendant, as a common carrier, to afford means of transportation to the plaintiff for his property, unless relieved by the provisions of • the Forest, Fish and Game Law cited. It seems to be clear that if the language of section 8 is to be literally construed and full effect given to it, the demurrer was properly sustained, but when reliance is placed upon a statute to relieve one from the duties and obligations imposed by the common law, it is the duty o.f the court, so far as possible, to avoid a construction which will injuriously affect rights and property. (Suburban R. T. Co. v. Mayor, etc., of N. Y., 128 N. Y. 510.) The rule is supported by authority that statutes changing the common law are to be strictly construed and the letter will be held to be-no further abrogated than the .clear .import of the language used in the statutes absolutely requires. (People v. Palmer, 109 N. Y. 110 ; Fitzgerald v. Quann, Id. 441; Dean v. M. E. R. Co., 119 id. 540.)
A thing within the letter of the statute to avail must also be within the intention of the lawmakers. (Riggs v. Palmer, 115 N. Y. 506.) And this involves the duty of consulting all of the provisions of the statute, as distinguished from a single section, to ascertain the legislative intent. (People ex rel. Huntington v. Crennan, 141 N. Y. 239.) -The intent of the framers is to be sought (Matter of Board of Street Opening, etc., 133 N. Y. 329), and that while not of controlling authority, the title of the act may be resorted to for the purpose of showing what was in the minds of the Legislature. (Ayers v. Lawrence, 59 N. Y. 192, 196, 197; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 id. 574, *321. 585.) In the latter case It was added that “ A principle of construction of universal authority is that which requires the court to limit and restrict the operation of a statute when its language, if applied in its literal sense; would lead to an absurdity or manifest injustice.” •
Construing this statute in the light of these rules, we find that the title of the act is “ An act for the protection of the forests, fish and game of the State.” The statute makes no" effort to define game, which has been- defined as “ birds and beasts of a wild nature, obtained by fowling and hunting ” (14 Am. & Eng. Eney. of Law, [2d' ed.] 654), and this seems to be in harmony with the understanding of the .lawmakers, for we find them making special provisions in reference to closed seasonsfor “wild deer,” and for the possession of “ wild deer or venison” in sections 2,.3 and 4 of the act,* and in section 2 it is especially provided that the owner may “ retake alive, deer which have escaped .from his possession,” recognizing thereby the right of ownership in "domestic deer, as distinguished from wild or game dee.r, which it was the purpose of the statute to protect. It was to protect, not tame deer belonging to individuals, but the “ fish and game of the State,” which is at large in the-State, and.which may be reduced to lawful possession by any individual having proper appliances and skill during the open season. The plaintiff in this action has the same natural and legal right to fence his farm and devote it to the propagation of deer that he has to make' usó ol: it for the raising of sheep or cattle; he has a full property right in the deer which he keeps inclosed upon his premises, as well as in the meat product of his farm, and to deny him the right to transport his deer or venison,-under the same terms and conditions as would apply to the shipment of cattle or sheep,' upon the hypothesis that this Is necessary to aid in detecting those engaged in illegally killing game deér of the State, is an abuse of legislative power which ought not to be permitted, If it is possible to give any other construction'to the language used. “ Where,” to quote the language of Blackstone’s Commentaries (Yol. 1, p. 91), in discussing statutes, “ some' collateral matter arises out of the general words, and happens to-be unreasonable; there the judges are *322•in decency to conclude that this consequence- was not foreseen by the parliament, and, therefore, they are. at liberty to expound thé ! statute by equity and Only quoad hoe disregard -it.”
• It will be seen from an examination-of the statute that section .8 - (quoted) of the act is designed to aid in the enforcement of the other provisions. Section 2, for instance, provides that the closed season for wild deer shall be' from JSTovember sixteenth to September thirtieth, both inclusive, and that no person shall take more than two deer in an open season. And to prevent-persons from gaining anything by killing more than the two deer permitted by statute, it is provided in. section 8 that “ one carcass or a payt thereof may be transported from the county where killed when accompanied by the , owner,” and that “no person shall transport or accompany more • than two deer in any year under this section.” Obviously the purpose of section 8 is to supplement the provisions of section 2, and ■ the “ deer” referred to in section 8 are the “ wild deer” sought to be protected by the provisions of section 2. The scheme of the statute is plain. It limits the right of an individual to kill wild deer to a definite season, to a. definite number of deer, and to aid in the enforcement of these limitations it provides that common - carriers shall not afford' transportation for those deer, sought to be protected, except when accompanied by the owner; and it further provides that lie must not accompany more than two deér during the season. Thus read and construed, the Legislature is within its legitimate sphere of protection to wild game. It has provided for. the protection.of the “game of the State,” and it is justified in. limiting the. duties and obligations of common carriers to this extent! But to say that it is proper for the Legislature to take away all the duties of the common carrier, and to impose a penalty, as is done under the provisions of section 16, as amended by chapter 319 of the Laws of 1905, for performing á perfectly legitimate, duty to the owner of deer who has raised them as a commercial venture, is going a step beyond .what has heretofore been sanctioned by the courts, and it ought not to be done unless this is made so clear that there is no mistaking the legislative intent. “ In order, to form a right judgment whether a case be within the equity of a - statute,” says Bacon’s Abridgment (Statute, 1,6),* cited with approval *323in Riggs v. Palmer (supra), “ it is a good way to suppose the lawmaker present, and that you'have asked'him this question, Did'you intend to comprehend this, case % Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” Tried by this test, can any one suppose the answer of the Legislature to be that it was intended to ruin the legitimate businéss of propagating deer for food ?. That the general words of the statute were intended to practically ruin the business of raising deer for the market ? The legitimate foundation for the exercise of the police power in the protection of game is that it conserves the food supply. We protect game birds, beasts and fish, upon the theory that these belong as a common- right to the State, and it would be strange if the Legislature should, for- the sake of fostering a common food supply, enact legislation to prevent private protection of a, like supply, or what is -equivalent, to carrying on this industry at a profit upon the investment. This construction leads to an absurd: ity, and in such a case it is within the legitimate province of the court to interpret the language to “ conform to the presumed intention of its framer.” (People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574, 585.) The presumed intent of this legislation is to protect the “ game of the State,” and a reasonable regulation of the business of common carriers, to make it difficult to evade the law, by limiting transportation facilities to wild deer or venison when accompanied by the owner, and restricting the number of deer which any individual is permitted to take, fully meets this requirement. The plaintiff is engaged in raising deer as a commercial venture, and as I view it, is not within the spirit of the statute. He can have no legitimate object in shipping deer for other people, which they have killed in violation of the law, and the law will not, I take it, presume anything against liis honesty of purpose. The fact-that he has a right to ship deer of his own raising does not give any right to one who has merely reduced to possession a species of property in which the State at large has a property right, and we are of the opinion that where a legitimate shipment of domestic *324deer or venison is offered it is not a violation of the provisions of the- ■ Forest* Fish and Game ¡Law for a. common carrier to accépt the same,, upon the same terms and conditions that it would receive, an any other offered shipment of meat products raised for commercial purposes, “ Reason,” says a maxim of the common law, “is the soul of the-law,, and when the reason of any particular law . ceases, so does the-law itself.” (Go. Litt. 70b; Broom Leg. Max; [6th Am. ed.] 123.)' The reason of this law is the protection of the •“ game of the State,”' and as this is adequately, provided for by limiting fhe shipping privileges of wild deer and'the number which may be lawfully taken when accompanied by the owner, the law must end When this pur pose has been accomplished, and the general, words of the statute- . should not be construed-to'work-a wrong to this-plaintiff arid others, similarly situated, or to prevent the breeding of a valuable food, animal as a commercial undertaking.
The argument that this restriction is necessary to-make it more-difficult to evade the law, upon the same principle that possession of certain game is penalized within this State, regardless of .where-it was killed or taken, as in People ex rel. Hill v. Hesterberg (184 N. Y. 126) is completely overcome by the fact that the provisions of section 8 do -not pretend to relate to deer generally,, but only to- “ deer or venison killed in this State.” It deals only-with animals-killed within this-State. Deer killed in any State bordering upon ¡New York, or in Canada, may be taken and transported the same- ' as calves or sheep might be carried. They are clearly not within the restrictions of the law aiid if wild deer killbd'in Vermont Or in. Canada may be transported within, this State-without detriment to-, our own wild deer, why should it be necessary to restrict shipments from one who is legitimately engaged in the raising of deer as afood product, " The reasoning of the court in support of the provisions of the Forest, Fish and Game Law under consideration in the case last-. ' above cited, has no application to the provisions of section 8, for it . would be just as easy to make a false or fraudulent statement as to the ' .place of killing in reference to our wild deer as it would be in the case of domestic deer. The plaintiff could take his deer alive to Vermont and kill theiri, and then bring them into this State and ship them to any point, and there would be no question of- his right. under the statute* and i't would hardly seem to be necessary to-con*325¡strue the 'statute with the result contended for by the respondent simply because the plaintiff’s domestic deer are killed within this State. The fair intent of the statute, is that deer killed within this State by means of fowling and hunting—killed in the Chase — are to be thus limited in transportation privileges. The State has cno control over the. killing of .the deer owned by the plaintiff and .kept within his own preserves, and it has no legitimate right, in my ■opinion, to deny him the right to transportation, unless that is necessary to the preservation of some ■ higher right of the public. None has been suggested. As we have seen, none of the reasons which make it proper to penalize the possession of game in this state, regardless of the place of killing, can have application in this ■case, for the reason that deer killed outside of the State may be transported without limitation, and this. would interfere with the ■enforcement of the law quite as much as the transportation from the farm of one whose surroundings were known and who could have no legitimate object in covering up the misdeeds of others.
The interlocutory judgment appealed from should be reversed •and the demurrer overruled, and the defendant permitted to answer .within twenty days upon payment of costs.
SeeLaws of 1900, chap. 20, § 2, as amd. by Laws of 1906, chap. 191; Id. § 3, as amd. by Laws of 1905, chap. 315; Id. § 4, as amd. by Laws of 1906, chap. 478.— [Rep.
See 9 Bac. Abr. (Bouvier ed.) 248.— [Rep.