
    The People of the State of New York, Appellant, v. Charles Cohen, Respondent.
    
      Game Law— “ birds for which there is no open season” defined — snowbuntings not included in that phrase — an act malting unlawful the possession of birds, which, before its passage was lawful, is unconstitutional as to birds in the owners possession prior to its passage.
    
    Section 33 of the Forest, Fish and Game Law (Laws of 1900, chap. 209, as amd. by Laws of 1902, chap. 517) which provides: “ Certain wild birds protected.— Birds for which there is no open season and wild birds other than the English sparrow, crow, hawk, crow blackbird, snow owl and great horned owl, shall not be taken or possessed at any time, dead or alive, except under the authority of a certificate issued under this act,” refers, in so far as it relates to “ birds for which there is no open season," to birds for which the statute expressly provides that there shall be no open season.
    The section, therefore, does not relate to snowbuntings as the statute makes no provision with respect to such birds.
    The amendment of 1902 did not change the legal effect of the section as it existed prior to that amendment.
    Assuming that the amended section applies to snowbuntings, the amended section is unconstitutional in so far as it assumes to declare unlawful the possession by a game dealer of snowbuntings which he purchased prior to the time when the amendment took effect and when the possession of such birds was not unlawful,
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Henderson Peck, for the appellant.
    
      Louis Marshall, for the respondent.
   McLaughlin, J. :

This action was commenced on.the 28th of November, 1902, to recover certain statutory penalties alleged to have been incurred by the defendant by his having in his possession, between the 14th day of September and the 1st day of October, 1902, thirty six wild birds commonly called snowbuntings, in violation of section 33 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1900, chap. 741; Laws of 1901, chap. 91; Laws of 1902, chaps; 359 and 517).

The specific allegation of the complaint upon which the right to such recovery was predicated was that the defendant, between the 14th day of September and the 1st day of October, 1902, “ unlaw- 1 fully, wilfully and knowingly possessed at said city and county, certain birds for which there is no open season, and wild birds other than the English sparrow, crow, hawk, crow-blackbird, snow-owl,-and great horned owl, to wit, thirty-six (36) snowbuntings (not under the authority of a certificate issued under this act, to wit, chapter 20 of the Laws of the State of New York, entitled ‘An Act for the Protection of the Forests, Fish and Game of the State, constituting chapter 31 of the General Laws,’ passed February 19th, 1900), contrary to the form of the statute in such case made and provided, and in violation of the provisions of sections 33 of Article II of the Act aforesaid as amended by chapter 741 of the Laws of 1900, chapter 91 of the Laws of 1901, and chapter 517 of the Laws of 1902.”

The plaintiff’s right to recover was put in issue not only by a general denial of the allegations of the complaint, but also by an affirmative defense, among others, ■ to the effect that the statute for the alleged violation of which the penalties were sought to be recovered was unconstitutional.

The issues raised by the pleadings, however, were somewhat simplified at the trial by a stipulation as to all the facts, by which it appeared “ that the said snowbuntings were acquired by the defendant by purchase from a dealer in such property in April, 1900, at Quebec, in the Dominion of Canada; that all of them were taken and killed prior to said month in the Dominion of Canada, and were sold to the defendant by the owner of said snowbuntings in said month of April, 1900, as aforesaid, and were in said month shipped by the vendor to the defendant from Quebec aforesaid to -the City of New York, and the said defendant continued in the possession of the said snowbuntings at said City of New York from April, 1900, to October 1st, 1902, in the original packages in which they were received; * * * that the said snowbuntings were purchased by the defendant for the purpose of selling them in the business in which he was engaged, that of dealing in game , and poultry, and were during all the time that he owned the same of the fair market value of fifty dollars' ($50).”

At the conclusion of the trial the complaint was dismissed, and the exception taken to such ruling presents the only question on this appeal.

I think the ruling was correct. It will be observed that the allegation of the complaint upon which the right to a recovery is predicated is that the defendant, between the 14th day of September and the 1st day of October, 1902, had in his possession the birds referred to, contrary to and in violation of section 33 of chapter 20 of the Laws of 1900, as amended by chapter 517 of the Laws of 1902. According to the stipulation, these birds were acquired prior to April 10, 1902, the time when chapter 517 of the Laws of 1902 took effect. Immediately prior to. the passage of this act it was lawful for the defendant to have them in his possession. This was settled and determined in People v. Bootman. In that case penalties were sought to be recovered upon the ground, among others, that the defendant in May, 1901, had the same kind of birds in his possession. A demurrer was interposed to the complaint, which was sustained, the learned justice sitting at Special Term holding that the defendant was entitled to such possession without incurring any penalty therefor under the statutes then in force. In sustaining the demurrer he said: In order to create an offense under section 33, it must appear not only that the birds are wild birds, but also that they are birds for which there is no open season. Therefore, if they are birds having an open season, or if there be no express provision that there shall be no open season, the taking or possession of them constitutes no offense. ' * * * No cause of action is set forth in these counts, and as to them the demurrer is sustained,” (40 Misc. Rep. 27.) The ruling thus made was sustained not only by this court (72 App. Div. 619), but also by the Court of Appeals (173 N. Y. 622).

We have, therefore, an adjudication by the highest court in the State that prior to the passage of chapter 517 of the Laws of 1902 it was lawful for a person to have snowbuntings in his possession ; and this being so, the question presented is whether the Legislature had the power, by legislative enactment, to make the possession of property which was lawful prior to the enactment of a statute unlawful immediately following the time it took effect. That the birds were property I do not understand is denied, and if it were the question has so many times been determined that a discussion of the subject or the citation of authorities to ■ show that they were is unnecessary. That the imposing of a penalty for having property in' one’s possession which had theretofore been lawful amounts to a confiscation of such property is equally well settled. This was finally and effectually determined by the Court, of Appeals nearly half a century ago and it has not since, so far as I have been able to discover, been questioned in any of the courts of the State. ( Wynehamer v. People, 13 N. Y. 378.) There the .court had under consideration an act of the Legislature designed to prevent the sale of intoxicating liquors, which rendered unlawful the sale, and, except in some instances, the possession of such liquors, which were possessed at the time of the passage of the act, and it was held that the act in its application to such liquors violated the provisions of section 6 of article 1 of the Constitution which declared that no person should be deprived of life, liberty of property .without due process of law. The principle there laid down is as applicable, to the facts here presented as it was to those. The birds were purchased by the defendant, so far as appears, at a time when and a place where he had a legal right to purchase them. They were shipped to him, and thereafter remained in the original packages in which they were shipped. Prior to the passage of the act under which it is claimed defendant is liable the possession was lawful, and to hold that that act made the possession thereafter unlawful is to accord to the Legislature power which it does not possess under section 6 of article 1 of the Constitution of the State, viz.; to confiscate private property without compensation therefor.

If, therefore, the effect of this statute is as claimed by the appellant, it must be held to be unconstitutional to the extent herein indicated. But I do not think the statute, when properly considered, has the effect claimed for it by the appellant. So far as snowbuntings are concerned, it is in legal effect, as I read it, the same as the one considered in People v. Bootman (supra). . In the Bootman case the statute read: “ Wild birds other than the English sparrow-, crow, hawk, crane, raven, crow-blackbird, common - blackbird, kingfisher, and birds for which there is no open season, shall not be taken or possessed at any time, dead or alive, except under the authority of a certificate issued under this act.” (Laws of 1900, chap. 20, § 33, as amd. by Laws of 1901, chap. 91.) The statute here under consideration reads: “ Certain wild birds protected.— Birds for which there is no open season and wild birds other than the English sparrow, crow, hawk, crow blackbird, snow owl and great horned owl, shall not be taken or possessed at any time, dead or alive, except under the authority of a certificate issued under this act.”

In the JBootman case, as already said, it was held that the act then in force did not apply to snowbuntings. The act of 1902, while it changed in some respects the words and phrases used in the former statute (more particularly by transposing them), did not in legal effect alter the prior statute. "When the act of 1902, as in the prior statute, refers to birds for which there is no open season it necessarily refers to birds as to which the act makes such provision. The statute enumerates various birds as to which a close season is provided. Thus, in section 27 a provision is inserted to the effect that there shall be no open season for woodcock, grouse or quail in the county of ¡Rensselaer, prior to 1903. The phrase, “ birds for which there is no open season ” must necessarily, as it seems to me, relate to birds as to which the statute expressly makes such declaration and snowbuntings do not seem to have been included. Subsequent legislation (Laws of 1903, chap. 443) seems to favor this construction, at least so far as legislative intent is concerned, because section 33 was further amended by adding a sentence to the effect that “ the provisions of this section shall not apply to game birds for which an open season is provided in this act.”

The judgment appealed from, therefore, must be affirmed with costs.

O’Brien, Ingraham and Laughlin, JIT., concurred; Van Brunt, P. J., concurred on first ground only.

Judgment affirmed, with costs. 
      
      
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