
    The People of the State of New York, Respondent, v. James C. Fargo, as President of the American Express Company, Appellant.
    First Department,
    April 15, 1910.
    Forest, Fish and Game Law — constitutional law — game brought from foreign States — interstate commerce — Federal statute construed — common, carriers — State laws . do not attach until game from other States reaches destination.
    Although deer killed in another State and brought into this State while in transit are a subject of interstate commerce and are under Federal jurisdiction, section 5 of the Lacey Act (31 XT. S. Stat. at Large, 188) subjects foreign game to the operation of State laws upon its arrival in the State,
    But, like the Wilson Act relating to liquors brought into a State, the Lacey Act did not intend to allow the power of the State to attach to game brought into the State while it is in transit and before it arrives at the point of destination and is delivered to the consignee.
    Hence, an express company transporting deer from another State unaccompanied by the owner is not, while the game is in transit, subject to the provisions of section 8 of the Forest, Fish, and Game Law, making possession of venison by a common carrier while engaged in such business, unaccompanied by the owner, a violation of the statute.
    
      Appeal by the defendant, James C. Fargo, as president, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1909, granting the plaintiff’s motion, for judgment on the pleadings, and also from a judgment entered in said .clerk’s office on the 21st day of October, 1909, upon •said order.
    The opinion delivered.at Special Term is reported in People v. Fargo (63 Misc. Rep. 381).
    
      Edmund L. Baylies, for the. appellant.
    
      William Chilvers, for the respondent.
   Scott, J.:

The defendant, a common carrier, appeal's from a judgment directed upon the pleadings. The. complaint states six causes of action, judgment' having been directed upon five of them. As to each cause of action upon which judgment was directed the defendant admitted that on a given date there was delivered to the American Express Company without the. State of New York, for transportation into said State certain deer lawfully killed without the State of New York, and that, in the course of the transportation of said deer and before the termination thereof, the said American Express Company solely, as a common carrier had the custody a,nd control of said deer within said State, and that said deer were unaccompanied by the owner thereof. As to one cause of action the admission is that the deer, being lawfully killed without the State of New York, were transported into'and through said .State and into the -State of New Jersey. The plaintiff’s, claim is that these facts rendered the express company liable for the penalties prescribed by the Forest, Fish and Game Law of this State. The provisions of the law which were in force at the dates mentioned in the pleadings, and-tinder which the express company’s liability is' asserted, are sections 4 and 8 of chapter 20 of the Laws of 1900, as amended by chapter 478- of the Laws of 1906, and chapter 666 of the Laws of 1907, and section 14.1, which was added by chapter 194 of the Laws of 1902.

These sections, so far as applicable,, read as follows : § 4. Possession of deer or venison.— Wild deer or venison shall not be possessed or sold from November twenty-fifth to September thirtieth both inclusive. Possession thereof from midnight of the fifteenth'to the twenty-fourth of November shall be presumptive evidence that the same was unlawfully taken by the possessor.”

“ § 8. Transportation.— 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. No 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 November nineteenth [fourth] to September thirtieth [fifteenth], both inclusive, but if possession is obtained for transportation after September thirtieth [fifteenth], and before midnight of November eighteenth [third], 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 business of such common carrier, unaccompanied by the owner, shall. constitute a violation of this section by such common carrier. This section does not apply to the head, feet or skin of deer iE carried separately.] “ § 141. Wherever in this act the possession of fish or game, or the flesh of any animal, bird or fish, is prohibited, reference is had equally to such fish, game or flesh coming from without the State as to that taken within the State. * * *.”

The amendments of 1907 are included within brackets.

It is well settled that under the provisions above quoted, aided by the- Federal statute known as the Lacey Act (31 U. S. Stat. at Large, 187, chap. 553, May 25,1900), the possession by a dealer of game taken without the State and brought into this State contrary to the provisions of the statute is unlawful. (People ex rel. Silz v. Hesterberg, 184 N. Y. 131; S. C. sub nom. New York ex rel. Silz v. Hesterberg, 211 U. S. 31.) It is urged, and with force, that the sections of the act above quoted do not apply to common carriers having game in their possession only for the purpose of transportation from another State into this State. We consider it unnecessary to discuss that question

because there seems to he another controlling reason why the present, judgment cannot be.upheld., The transportation of goods from one State into or through another State constitutes interstate commerce-which is under the exclusive control of the Congress.and-cannot be interfered with by a State except with the consent of the Congress. There appears to be no doubt that game may be the- subject of . interstate commerce. (New York ex rel. Silz v. Hesterberg, supra; Bennett v. American Express Company, 83 Maine, 236.) In People v. Buffalo Fish Company (164 N. Y. 93) a grave doubt was expressed whether an -act forbidding a dealer to have in his possession fish taken in a foreign State was not an unlawful interference by the State- with interstate commerce.- ' Tq meet that objection the ■ so-called Lacey Act (cited supra) was' passed. Its 5th section reads as follows: “Sec. 5. That all dead bodies, or parts thereof, of any foreign game animals, or game Or songbirds; 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 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 animals or birds had been produced in such Stale or.Territory; and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. This Act shall' not prevent the importation, transportation or sale of birds or bird plumage manufactured from -the feathers of barnyard fowl.” (31. U. S. Stat. at Large, 188, § 5.) ' ... .

It- will be observed that under this act the State law is permitted to attach to foreign killed game “ upon arrival in such State or Territory,” and.the respondent’s argument is that game, in possession of a ’ common carrier for transportation becomes subject to the Forest, Fish, and G-ame Law of this State the moment it crosses the State line. This contention seems to be disposed of by the construction given by.the Supreme Court of the United States to a.similar statute enacted in identical language except as to the subject-matter. ' (26 U. S. Stat. at Large, 313, chap. 728, Aug. 8,1890.) This act, known as the Wilson Act, relates to liquors, as the. Lacey -Act' does to game, .and. both provide that the point at which State jurisdiction, under the police power, shall be permitted to attach to interstate shipments is “upon arrival” in the State. In the case referred to the plaintiff, the servant of a common carrier in Iowa, was indicted and convicted for moving a package containing liquors which had been brought into Iowa from Illinois. Except that the package was the subject of interstate commerce the Iowa statute justified the conviction and the Wilson Act was invoked to uphold it. The Supreme Court discussed the meaning and effect of the Wilson Act at some length concluding as follows : “We think that interpreting the statute [the Wilson Act] by the light of all its provisions it was not intended to and did not cause the power of the State to attach to an interstate commerce shipment, whilst the merchandise was in transit under suc/i shipment, and until its arrival at the point of destination and delivery there to the consignee.” (Rhodes v. Iowa, 170 U. S. 412.)

The same construction was given to the Wilson Act in Adams Express Co. v. Kentucky (214 U. S. 218), which reaffirmed the rule stated in Rhodes v. Iowa (supra). The Lacey Act and the Wilson Act are not to be distinguished. Except that they deal with different commodities, their purpose is the sanie and tlreir language is identical, and we are bound to give to the one the construction that the Supreme Court of the United States has given to the . other. It follows that the Forest, Fish and Game Law above quoted does not attach to a shipment of foreign game while in transit in possession of a common carrier, and until its arrival at the point of destination and delivery there to the consignee.

The judgment appealed from is, therefore, reversed, with costs to the appellant to abide the event, and plaintiff’s motion for judgment on the pleadings denied, with ten dollars costs.'

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment and order reversed, with costs to appellant to abide event, and motion for judgment denied, with ten dollars costs.  