Citation Numbers: 60 N.Y. 10, 1875 N.Y. LEXIS 133
Judges: CHURCH, Ch. J.
Filed Date: 2/2/1875
Status: Precedential
Modified Date: 4/15/2017
We concur with the conclusion arrived at by the General Term. With the policy of the statute in question we have no concern, but that the acts complained of, viz., having in possession certain game birds after the first of March, although killed prior to the prohibited time, or brought from another State where the killing was not prohibited, is within the restraint of the statute there can be no doubt. The seventh section declares that no person shall kill or expose for sale, or have in his or her possession after the same has been killed, any quail, between the first day of January and twentieth of October, under the penalty of twenty-five dollars. (Laws of 1871, p. 1669.) The eighth *Page 13 section contains a similar provision relative to ruffed grouse or partridge, and pinnated grouse or prairie chickens, fixing the time between the first day of January and first day of September. The language of these sections is plain and unambiguous. Hence there is no room for construction. It is a familiar rule that when the language is clear courts have no discretion but to adopt the meaning which it imports. The mandate is that "any person having in his or her possession," between certain dates, certain specified game killed, shall be liable to a penalty. The time when or the place where the game was killed, or when brought within the State, or where from, is not made material by the statute, and we have no power to make it so. But if the intent in this respect was doubtful, section 33 would remove it. That section provided that persons selling, or in possession of game, shall not be liable to the penalty up to the first day of March, provided they prove that it was killed before the prohibited time, or outside of the limits of the State where the killing was not prohibited. Provision is made by this section for the cases supposed not to be within the purview of the seventh or eighth section, but it is clear that the legislature did not so suppose, but intended to qualify those sections by allowing possession to continue, and a sale of game lawfully killed or acquired for two months, but after that period the inhibition is absolute.
It is admitted in this case that the defendant had possession of the game after the first of March, and the fact alleged, that it was either killed within the lawful period or brought from another State where the killing was lawful, constitutes no defence. The penalty is denounced against the selling or possession after that time, irrespective of the time or place of killing. The additional fact alleged, that the defendant had invented a process of keeping game from one lawful period to another, is not provided for in the act, and is immaterial.
The objection of a want of power in the legislature to pass the act is not tenable. It is not in conflict with the State Constitution within the case of Wynehamer v. People. (
It is also urged that the statute in question violates that provision of the Constitution of the United States which authorizes Congress to regulate commerce among the States. It is unnecessary to consider how far the exercise of the power of Congress under this provision would interfere with the authority of the States to pass game laws, and regulate and prohibit the sale and possession of game either as a sanitary measure or for its protection as an article of food. It will suffice for this case that the statute does not conflict with any law which Congress has passed on the subject. States cannot *Page 15
pass laws in respect to subjects expressly prohibited by the Constitution, nor when the power is conferred upon Congress and its exercise by the States conflicts with the policy or functions of the government, but there are many powers conferred upon Congress which, until exercised by it, are regarded as dormant and may be exercised by the States within their limits, among which is the power to regulate commerce. "If the terms of the grant are not exclusive, and there is no express prohibition upon the States, and no repugnancy or inconsistency in its exercise by the States, the authority is concurrent." (People ex rel.Barlow v. Curtis,
It is quite evident, within these principles which have been repeatedly reiterated by the Supreme Court of the United States, that the act in question does not violate the Constitution of the United States, nor any law of Congress. (4 Wheat., 122; 12 id., 213; 12 How. [U.S.], 269; 9 Wheat., 195; 16 Wallace, 36; 15 id., 279; 6 id., 31.)
The judgment of the General Term must be affirmed.
All concur.
Judgment affirmed. *Page 16