
    GAME LAWS.
    [Cuyahoga (8th) Circuit Court,
    January 29, 1912.]
    Marvin, Winch and Niman, JJ.
    State of Ohio v. A. M. Solomon. State of Ohio v. Bailey Co., a Corporation.
    White Heron, a Vagrant Bird, Possession or Sale of Plumage of Which is not Proscribed.
    The white heron, having been excluded from the term “game bird” by Gen. Code 1412, defining game birds, is not included in Gen. Code 1409 prohibiting the sale or possession of plumage of “any wild bird other than game birds,” since it is not a native bird or one migratory in the state at certain periods; but, instead, it is a transient or vagrant individual of a class whose habits are not to migrate either to this state or across it.
    Error to common pleas court.
    
      T. S. Hogan and Morgan <& Litzler, for plaintiff in error.
    
      Hidy, Klein <& Harris, for defendants in error:
    Cited and commented upon by the following authorities: 36 Cyc. 1110, 1119; Shultz v. Cambridge, 38 Ohio St. 659; Lane v. State, 39 Ohio St. 312; Abt v."State, 20 Dec. 517 (9 N. S. 311); Palmer v. Tingle, 55 Ohio St. 423, [45 N. E. Rep. 313] ; Cleve
      
      land v. Construction Co. 67 Ohio St. 197 [65 N. E. Rep. 885; 59 L. R. A. 775; 93 Am. St. Rep. 670] ; Thorpe v. Railway, 27 Yt. 140, 150 [62 Am. Dec. 625] ; Ritchie v. People, 155 111. 98 [40 N. E. Rep. 454; 29 L. R. A. 79; 46 Am. St. Rep. 315] ; Eden v. People, 161 111. 296 [43 N. E. Rep. 1108; 32 L. R. A. 659; 52 Am. St. Rep. 365] ; 8 Cyc. 864; Cincinnati, E. <& D. Ry. v. Sullivan, 32 Ohio St. 152; Reamer v. State, 12 Circ. Dec. 4 (21 R. 440) ; Cooley, Const. Lim. p. 704; 4 Blackstone, Commentaries 162; Commonwealth v. Ager, 7 Cush. (Mass.) 53; New York v. Eesterlerg, 211 U. S. 40 [29 Sup. Ct. Rep. 10; 53 L. Ed. 75] ; Roth v. State, 51 Ohio St. 209 [37 N. E. Rep. 259; 46 Am. St. Rep. 566] ; Gder v. State, 161 II. S. 519 [16 Sup. Ct. Rep. 600; 40 L. Ed. 793] ; Buchner v. Finley, 27 U. S. (2 Bet.) 585 [7 L. Ed. 528] ; Cherokee Nation v. State, 30 U. S. (5 Pet.) 1 [8 L. Ed. 25] ; Solomon v. State, 21 Dec. 383 (11 N. S. 525).
   MARVIN, J.

These two cases are exactly alike so far as the law points are involved. )

Each of the defendants was prosecuted for having in possession and offering for sale the plume of a bird known as the white heron. Speaking in the singular, as though there was but one ease, the facts are, that the defendant had the plume in possession and exposed for sale at the time charged. The prosecution was before a justice of the peace; the defendant was found guilty and sentenced. On error, prosecuted in the common pleas court, this judgment was reversed and the defendant discharged. Solomon v. State, 21 Dec. 383 (11 N. S. 525).

We are called upon, by proper proceedings in error, to determine whether or not there was error in this judgment of reversal.

Several grounds of error on the part of the justice were claimed, any one of which justified the judgment , of reversal. The offense, if there was an offense, was because of a violation of Gen. Code 1409. Among the grounds urged was that the prohibition contained in this section did not inelude the white heron;.another was that if it did include the white heron, the act was unconstitutional, it being the taking of private property without due process of law.

This last proposition we do not feel called upon to discuss other than to say that we are not impressed with the views expressed by the court of common pleas in its opinion in the ease. However, as we view the case, it is not necessary that this question be passed upon.

A similar prosecution was instituted in Starke county in 1908 against one Abt. The result in that case was a conviction before the justice of the peace, a reversal of that conviction by-the court of common pleas; that judgment of reversal was affirmed by the circuit court, which last-named judgment was affirmed by the Supreme Court. See State v. Abt, 83 Ohio St. 451. No opinion is reported, so that it may have been for the reasons given by the court of common pleas or for those given in the circuit court, or both.

The opinion of the common pleas court reversing the judgment of the justice is reported in State v. Abt, 20 Dec. 517 (9 N. S. 311). The opinion of Judge Harter, of the common pleas court, in this case is based upon the proposition that the white heron is or may be a game bird, and that there is no protection for such'birds in the statute. This reason does not now exist, because of Gen. Code 1412, which gives an enumeration of birds, which enumeration does not include the white heron, and the section closes with the words: “Thé birds named in this section shall be known and classed as game birds, in contradistinction to all other birds.”

1 However, there still remains the question of whether the white heron is included within the prohibition of Gen. Code 1409.

In that section a large number of kinds of birds, forty-two in all, are enumerated as those whose plumage, etc., shall not be exposed for sale, and the enumeration ends with the words: “or any wild bird other than a game bird.” It being now settled by statute that the Avhite heron is not a game bird (Gen. Code 1412), Ave have the question of whether these words include the Avhite heron.

■ The evidence shows in this case exactly as it showed in the case against Abt, and is expressed in the language of the opinion announced in the circuit court in State v. Abt, 33 O. C. C. 125.

The following is a quotátion from that opinion:

“It also fully appears from the evidence in, this case that the snowy heron is not a native bird of Ohio; that it is a habitant of southern waters, and is never seen in a wild state in Ohio except very rarely. So that if it is found in the state at all it is only as a vagrant individual of a species, and is not a native bird. We think these statutes are designed' to protect the native birds and migratory birds that find a home in this state during certain seasons of the year, as well as other migratory birds that cross the state at regular intervals of each year; and not merely a transient or vagrant individual of a class whose habits are not to migrate eith.er to this state or across it.”

I have refreshed my recollection in reference to this case by talking with the clerk of the court of Stark county since this case was heard, and I find, what on the hearing I thought to be true, that the circuit court was composed of Judges Donahue, Taggart and myself. Judge Donahue, as is well known, is now a judge of the Supreme Court of this state; Judge Taggart was recently chief justice of the circuit courts, both of whom are well known and were recognized, at the time this opinion was announced, as among the ablest judges in the state. This opinion was concurred in by all of us who sat in ■the case. No court, so far as we know, in the state of Ohio, has dissented from the proposition announced in this opinion since it was delivered; and, following that opinion, and for the reasons stated in that part of it which is hereinbefore quoted, the judgment of the court of common pleas in this case is affirmed.

Winch and Niman, JJ., concur.  