
    Roth v. State.
    
      Game and fish law — Section 6964, Revised Statutes, construed— Constitutional law.
    
    It is an. offense, under section 6964, of the Revised Statutes, to sell quail in this state, except between the tenth day of November and the fifteenth day of December, though such quail were killed outside of the state, and where it was lawful to kill the same. The section is constitutional.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error was prosecuted before a justice of the peace of Cincinnati township, upon the charge that, on or about the 21st day of October, 1891, at the county of Hamilton, he did unlawfully, knowingly and willfully sell a certain quail, contrary to the statute in such eases made and provided. The case was submitted to the justice upon the following agreed statement of facts:
    .“The defendant is the proprietor of the St. Nicholas Hotel, in the city of Cincinnati, and a citizen of the said .city. On the 21st' day of October, 1891, he had in his possession for the purpose of sale, not in the original package, to his guests in the said hotel, in the city of Cincinnati, in the state of Ohio, six quail, which quail were by him purchased in the state of New York, and shipped to him for the purpose aforesaid; that he did. sell one of the quail, not in the original package, to Ora Minor, for the sum of seventy cents, to be eaten by her as a guest in said hotel, on the said 21st day of October, 1891, in the city of Cincinnati, state of Ohio. Said quail were killed in the state of New York, at a time when the killing and selling thereof was not prohibited by law. ”
    The justice found the accused guilty, and adjudged that he pay a fine of twenty-five dollars and costs; which judgment was affirmed by the court of common pleas, and its judgment was affirmed by the circuit court; and the case is here on error to the last named court.
    
      W. K. Maxwell, for plaintiff in error.
    
      J. K. Richards, Attorney-General, and John P. Murphy, for defendant in error.
   By the Court.

The prosecution was based on section 6964, of the Revised Statutes, as amended April 6, 1882 (79 Ohio Laws, 74), which reads as follows:

“Whoever purchases, sells, exposes for sale, or has in his possession any of the birds, game, or animals mentioned in sections sixty-nine hundred and sixty, sixty-nine hundred and sixty-one, and sixty-nine hundred and sixty-three, during the time when the killing thereof is made penal, shall be fined not- exceeding twenty-five dollars nor less than two dollars, or imprisoned not more than thirty days, or both;' provided, that the provisions of this act shall not be construed as applicable to any common carrier into whose possession any of the birds, game or animals herein mentioned shall come in the regular course of their business for transportation, whilst they are in transit through this state from any place without this state, where the killing of said birds, game or animals shall be lawful. ’ ’

Section 6961 provides that: “No person shall, on any place, catch, kill or injure, or pursue with such intent, any quail, except between the tenth day of November and the fifteenth day of December, inclusive.” This section also prohibits the catching, killing, or injuring of other kinds of birds, game or animals, within certain designated periods, and prescribes penalties for the infraction of any of its provisions.

The claim of the plaintiff in error is, that it is not a violation of section 6964 to sell, or expose Cor sale, quail, or other game, which was not caught or killed in this state, during the prohibited season; and; as it is shown by the agreed statements of facts, that the quail sold by him was killed in the state of New York when it was there lawful to do so, he was guilty of no offense, and should have been discharged. We do not adopt that interpretation of the section. Its terms do not restrict the offenses defined by it to the purchase, sale, exposure for sale, or having possession of birds, game, or animals which were caught or killed in this state, or such as were caught or killed in violation of the sections therein specified. By its language it is made unlawful to purchase, sell or expose for sale, or have the possession 'of, “during the time when the killing thereof is made penal,” any of the birds, game, or animals mentioned in those sections, without regard to where or when the same were caught or killed; the essential fact being their possession, sale, or exposure for sale, during the season when it is unlawful to kill them. And that such was the legislative intention is manifest from the proviso contained in the section, which exempts from its penalty common carriers who have received such game outside of the state where it was lawfully killed, and have it in their possession in the state in the course of transportation through it, in the regular course of their business. If such possession was lawful without the proviso, its provisions were unnecessary, and are inoperative. But, the possession of such game in this state, though received from another state where it was lawfully killed, having been made an offense by the preceding clause of the section, the proviso became necessary for the protection of common carriers under the circumstances therein stated, and accomplishes that result. As none but such carriers are entitled to that protection, the possession by others here during the prohibited season, of game lawfully killed outside of the state, is a violation of section 6964, and its sale, or exposure for sale, within that period, is likewise an offense under it. We cannot say that a statute of that kind will not be more effectual in preserving birds and game in this state than one preventing the sale of such only as should be killed here. Nor do we think the' statute is unconstitutional. Every one is presumed to know the law, and persons who acquire such property when the statute is in force, take it subject to its provisions. Phelps v. Racey, 60 N. Y., 10; Magner v. The People, 97 Ill., 320; State v. Randolph, 1 Mo. App., 15.

Judgment affirmed.  