The General Statutes, § 2530, provide that "every person who shall buy, sell, expose for sale, or have in his possession for any purpose, or who shall hunt, pursue, kill, destroy, or attempt to kill, any woodcock, quail, ruffled grouse called partridge, or gray squirrel, between the first day of January and the first day of October, the killing or having possession of each bird or squirrel to be deemed a separate offense, * * * shall be fined not more than twenty-five dollars," etc.
Section 2546 provides that "no person shall at any time kill any woodcock, ruffled grouse or quail for the purpose of conveying the same beyond the limits of the state; or shall transport, or have in possession with intent to procure their transportation, beyond said limits, any of such birds killed within this state. The reception by any person within this state of any such bird or birds for shipment to a point without the state, shall he primâ facie evidence that said bird or birds were killed within the state for the purpose of conveying the same beyond its limits."
The defendant is prosecuted for "unlawfully receiving and having in his possession, on the 19th day of October, 1889, with force and arms and with the unlawful intent to procure the transportation beyond the limits of this state, certain woodcock, ruffled, grouse and quail, killed within *Page 149 this state after the first day of October, 1889, against the peace and contrary to the form of the statute."
He demurred to the complaint because: "(1) The allegations contained therein do not constitute any offense in law. (2) Because in the complaint it is not alleged that the birds were killed for the purpose of conveying the same beyond the limits of the state."
It will be seen from the sections of the statute above quoted that it is unlawful to kill or have in possession for any purpose, woodcock, quail or ruffled grouse between the first day of January and October, and that it is unlawful to kill them at any time for the purpose of conveying them out of the state. Is it also unlawful to have them in possession with intent to procure their transportation beyond the limits of the state, if killed between the first day of October and the first day of January, regardless of the question whether they were killed for the purpose of conveying them out of the state? In other words, if they were lawfully killed, that is, between October first and January first, and without any intention of conveying them out of the state, can they be lawfully held, with the intent to procure their transportation beyond the limits of the state?
In 1882 an act was passed as follows: —
"Section 1. No person shall at any time kill any woodcock, ruffled grouse, or quail, for the purpose of conveying the same beyond the limits of this state.
"Sect. 2. No person, corporation or company shall transport or convey beyond the limits of this state any woodcock, ruffled grouse or quail killed within this state, or sell or have in his or their possession any of such birds with the intention to procure the same to be conveyed or transported beyond the limits of this state.
"Sect. 3. The reception by any person, company or corporation within the limits of this state, of any quail, woodcock or ruffled grouse, for shipment to a point without the state, shall be primâ facie evidence that said bird or birds were killed within the state for the purpose of carrying the same beyond the limits of this state. *Page 150 "Sect. 4. Any person violating any of the provisions of the preceding sections shall be lined not less than seven nor more than fifty dollars and costs of prosecution." Public Acts of 1882, ch. 102.
It is evident that under the act as originally passed the complaint would have been good and sufficient. But it is claimed by the defendant that, under the act as revised, no offense is committed unless the birds, by him held for transportation, were killed for the purpose of being conveyed beyond the limits of the state.
He says that the word "such," in the provision of section 2546 against transporting, or having in possession with intent to procure their transportation beyond said limits, any of such birds killed within the state, means woodcock, ruffled grouse or quail killed for the purpose of conveying the same beyond the limits of the state.
As already suggested, that construction involves a change in the law from the original act, which expressly forbade any person to have in his possession with the intention to procure the same to be transported beyond the limits of the state, any woodcock, ruffled grouse or quail killed within the state.
It seems to us evident also upon the face of the statute as revised, that the word "such" was used only to obviate the necessity of repeating the words "woodcock, ruffled grouse or quail," and that to carry its force and operation further, so as to include the purpose for which they were killed, would not only be unnatural, but dangerous as a precedent for construction in view of the terms of the old statute. We cannot believe that careful revisers would have undertaken to change the law without some more definite indication of such purpose.
Then again, when the words "such birds" are used in the very next line of the section, it is evident that they are used to take the place only of the words "woodcock, ruffled grouse or quail;" as if it read "the reception by any person within the state of any woodcock, ruffled grouse or quail, for shipment to a point without this state, shall beprimâ facie evidence *Page 151 that said bird or birds were killed within this state for the purpose of conveying the same beyond its limits." Otherwise we should have the absurd, provision that "the reception by any person within the, state, for shipment to a point without the state, of any woodcock, ruffled grouse or quail, killed for the purpose of conveying the same beyond the limits of the state, shall be primâ facie evidence that such birds were killed within the state for the purpose of conveying the same beyond its limits." That is, the fact that they were killed for transportation shall be primâfacie evidence that they were killed for transportation. The word "such "in both sentences refers to the same antecedent.
It is plain enough that the revisers intended not to change, but to condense, the sections of the original statute, and the language should be construed in the light of such intention. We conclude therefore that the complaint is sufficient.
We see nothing in the decision in Commonwealth v.Hall, 128 Mass., 410, to which the defendant refers us, inconsistent with our conclusion. The object of the act therein involved was to protect the game in that commonwealth and not in another. And a construction confining its force to birds killed therein was to be expected in the absence of controlling words to the contrary. All the reasoning in that case may certainly be held sound without impugning the reasoning upon which we arrive at our conclusion in this.
But in this view of the matter another question arises. The defendant further demurred to the complaint — "(3) Because section 2546 of the General Statutes is unconstitutional and void, so far as it may be construed to forbid the transporting from the state, or having possession with intent to procure such transportation to another state, birds described therein, which birds have been sold to parties in such other state, and have begun to move as an article of interstate commerce. And. (4) because it is made to appear in said complaint that the defendant is guilty under said section if such birds were bought by the defendant in the markets of this state as merchandise and commerce and had begun to move as an article of commerce." *Page 152
In short, the defendant insists that the statute as construed by us, is unconstitutional as restricting interstate commerce, and refers to Robbins v. Shelby CountyTaxing District, 120 U. S. R., 489; The DanielBall v. U. States, 10 Wall., 557;Hannibal St. Joseph R. R. Co. v. Husen,95 U. S. R., 465; State v. Saunders,19 Kan., 127; Territory v. Evans, 23 Pacific Reporter, 115; Territory v. Nelson, id., 116;State ex rel. Corwin v. Ind. Ohio OilGas Mining Co., 22 North Eastern Reporter, 778;American Express Co. v. The People, 24 id., 759.
In State v. Saunders, supra, the court says it seems to be finally settled, among other things, that no state can pass a law which will directly interfere with the free transportation from one state to another, or through a state, of anything which is or may be a subject of interstate commerce. That a law which prohibits the catching and killing of prairie chickens may be valid, although it may indirectly prevent the transportation of such chickens from the state to any other state; but that a law which allows prairie chickens to be caught and killed and thereby to become the subject of traffic and commerce, and, at the same time, directly prohibits their transportation from the state, is unconstitutional and void.
Without stopping to consider the construction which was given to the constitutional provision under discussion by the earlier commentators, except to suggest, in the language of Judge STORY, (2 Story's Com. on the Constitution, 511,) that a very material object of its adoption was the relief of the states which export and import through other states, from the levy of improper contributions on them by the latter, an object which was shown to be important by the experience of the states during the confederation period, we feel constrained to hold the provision of the statute to be constitutional.
It being conceded that the state, under its general police power, may lawfully prohibit the killing of the game birds in question, it may, of course, control such killing and the times and purposes thereof. It may lawfully enact that they may be killed and sold and held for sale only for domestic *Page 153 consumption. The state in the exercise of its power instead of prohibiting the killing altogether, permits the person killing them to acquire only a qualified right in them, namely, the right to appropriate them to his own use, and the right to sell or transport them for domestic use.
The birds in question never became articles of commerce within the meaning of the term contended for by the defendant. They became private property of a qualified character. The law limited the purposes for which they might be killed and become private property. The difference between property of this sort and the ordinary private property of commerce is obvious.
The apparent assumption of the Kansas court, above referred to, that game which the law allows to be caught and killed, thereby necessarily becomes the subject of traffic and commerce, meaning interstate commerce, appears to us unsound. If the proposition were true then the conclusion that a state law interfering with such commerce would be unconstitutional might pass unquestioned. But we cannot acquiesce in a decision which would deny the power of the state to limit the right to kill, sell and hold its own game by any provision short of an absolute prohibition, without thereby transforming it into that species of property the transportation of which from the state it is unconstitutional to prohibit.
There is no error in the judgment appealed from.