(dissenting). The record in the case of People v. O'Neil shows that on certain days named respondent, who lived in Detroit, sold in Detroit to a hotel in the same city certain brook trout and quail. Upon the trial, counsel for respondent offered to show that these articles were purchased by respondent in Chicago, and were shipped from that point to Detroit as articles of food. The testimony was excluded, as being immaterial. On the cross-examination, of the respondent witness, he was asked if he knew where the trout were caught or the quail killed, and replied that he did not. In this court, it was contended that if the statute in question there was applicable to the case made by the facts, it operated as a regulation of interstate commerce. It was held that—
“ It is competent for the legislature,'for the purpose of protecting game or fish, to absolutely prohibit the sale of *602game or fish caught within the limits of the State during a closed season or during the entire year. The question of the right to prohibit the importation and sale of game or fish, with the same purpose, is discussed and the right affirmed in Ex parte Maier, 103 Cal. 476, and the right is also assumed in numerous of the other cases referred to.
“We think the statute is valid, and that the convictions should be sustained, and the court below directed to 'proceed to judgment.”
In Ex parte Maier, referred to (103 Cal. 476), the application of the statute to a case of selling imported game was upheld, upon the express ground that—
“ Petitioner imported the meat into the State, broke the original package, and put the commodity upon the market. It thereupon became property strictly subject to State regulation and control, 'and falls within the denunciation of the "statute. Whether petitioner could have sold the meat as an entire carcass is a question which does not confront us, and which it is not, therefore, necessary to determine.”
In most of the cases involving the application of State statutes passed to protect fish and .game, the legislation has been sustained upon the ground that the State was. the common owner of game and fish, and that such common ownership imparted the right to keep the property, if the State chose so to do, within the jurisdiction for every purpose, to prohibit killing, transportation, possession, and,, generally, to fix the conditions under which any use of or traffic in game might be carried on. It is doubtful if a broader-ground can be asserted. In Geer v. Connecticut, 161 U. S. 519, a case in the decision of which two justices dissented and two did not sit, in which a statute of Connecticut was under consideration, it was said that all ownership of game killed within the State came under the condition imposed that it should not be exported, and confined commerce in such game to internal commerce, and the cases of State v. Saunders, 19 Kan. 127, and Territory v. Evans, 2 Idaho, 658, in each of which it was held that a State law prohibiting the shipment outside the State of game killed in the *603State violated the interstate commerce clause of the Constitution of the United States, are criticised as not recognizing the fundamental distinction between qualified ownership of game and the perfect ownership in other property, and overlooking' the authority of the State over game killed within the confines of the State, and the power of the State to follow such property into whatever hands it might pass, with conditions and restrictions deemed necessary for the public interest. . In the case of Bowman v. Railway Co., 125 U. S. 465, in which certain legislation of the State of Iowa was considered, it was said:
“ It is not a restriction which only operates upon property after it has become mingled with, and forms a part of, the mass of the property within the State. * * * But the right to prohibit sales, so far as conceded to the States, arises only after the act of transportation has terminated, because the sales which the State may forbid are of things within its jurisdiction.”
It is manifest that State ownership of game and fish is limited to the confines of the State, as is also the operation of all statutes, police or other.' Any regulation which operates upon the right of a citizen of the State to possess or to dispose of game killed in another State must rest for its enforcement upon the proposition that unless enforced other regulations will be rendered nugatory.
If we hold that the statute in question applies to cases of possession of prohibited fish by. a citizen, such fish being intended for sale or for use, or having been caught, killed, sold, or used, within the State, so that the operation of the statute bears some relation to the theory upon which such legislation is alone sustained as valid, and the statute remains in effect as it is in, form a police regulation, we have gone as far as the decision in People v. O'Neil, or in any similar case will warrant us in going. Such a ruling sustains the theory of the qualified property of the citizen in game and fish, and, also, the power of the State to subject its citizens to'regulations calculated to *604make effectual the conditions of private ownership imposed by the legislature. In the case before us, the admitted facts negative the killing of the fish within the State, and negative their introduction into the State, or their possession within it, for sale or use therein. This is otherwise to say that the facts negative any infraction of the law, even when it is construed in harmony with grounds thus broadly asserted.' It is admitted that the fish were lawfully caught, and were by the respondent lawfully purchased in a foreign country, with the purpose to ship them, according to the terms of a contract for their sale already made, to citizens of Massachusetts, and that the identical fish, and no others, when seized at Port Huron, had been, so far as Federal regulations are concerned, lawfully imported into the United States, and were actually in transit to the point of their original destination in Massachusetts and to the persons to whom they had been sold, in the possession of a common carrier. The construction which must be given the statute, in order to sustain the conviction of respondent, is that it prohibits a citizen of Michigan from contracting to sell citizens of Massachusetts fish to be purchased in Canada and from completing such a contract, when made, by transporting the fish through Michigan on their way from Canada to Massachusetts. It does not seem to me that the decision in People v. O’Neil is authority for such a construction. If it is not, we should hold, I think, that the statute was intended to have no application to facts like those in the cáse at bar, and that the conviction should be set aside and respondent discharged.
Carpenter, C. J., took no part in the decision.