
    THE STATUTE PROTECTING WILD BIRDS CONSTRUED.
    [Common Pleas Court of Butler County.]
    D. W. Fitton v. State of Ohio and Leo Mark v. State of Ohio.
    Decided, June 6, 1903.
    
      Constitutional Law — Interstate Commerce — Property Rights in Came— Offense Commited Individually or as Agent — Negative Averment— Evidence.
    
    1. The ownership of game animals and birds is in the state in its sovereign capacity, and the question of possession or ownership by an individual is one not of private right but of publiic policy, and may be regulated and restrained by legislation enacted for the common good.
    2. Section 6960, R. S., providing for the protection of wild birds other than game birds, is not rendered unconstitutional by reason of the fact that it is an interference with interstate commerce to the extent that it applies to birds killed outside of the state and imported into the state.
    3. Nor is the constitutionality of this section affécted by reason of - the further fact that it interferes with property rights in applying to birds killed and in possession prior to the passage of the act.
    4. An affidavit charging the accused with violation of law as an individual is good, notwithstanding he may have acted as the agent of another.
    5. The question whether one, accused of violating the statute for the protection of wild birds, had been authorized by the proper officials to take birds for scientific purposes, is a matter of defense to be proven by him.
    6. Where the prosecution under this statute comes under the general phrase “any other wild bird, other than a game bird,” it is incum-bent upon the state to prove that the bird taken, sold, or had in possession, was a wild bird other than a game bird.
   Brown, J.

These oases are before the court on petition in error from the docket of I. M. Warwick, Justice of the Peace in 'and for St'. Clair Township, Butler County, Ohio, and as nearly the same questions are involved in both eases, the court will consider them together.

Plaintiffs in error, who were engaged in the milinery business in Hamilton, were prosecuted under Section 6960, R. S., as amended in 1902 (95 O. L., 374), which reads:

“Section 6960. No person shall at any time, catch, kill, injure, pursue, or have in his possession either dead or alive, or purchase or expose for sale, transport or ship within or without the state any dove, etc., * * * (and numerous other birds, but not naming the blackbird) * * * or any other wild bird other than a game bird. No part of the plumage, skin, or body of any bird protected by this section shall be sold or had in possession for sale except as permitted in Section 6960a. * * *

Section 6960a provides: “The provisions in Section 6960 of this act shall not apply to any person holding a permit giving the right to take birds or their nests and eggs for scientific purposes, as herein provided.” The other part of the section specifies the details.

The affidavit in the Fitton case charges that “D. W. Fitton then and there being, did then and there unlawfully, purposely, and wilfully have in his possession for sale the plumage of a certain bird, other than a game bird, to-wit, a blackbird, he, the said D. W. Fitton, not then and there holding a permit from the President of the Fish and Game Commission of said state, contrary to the statute,” etc.

The affidavit in the Mark ease is identical. Motions and demurrers were filed to these affidavits and overruled by the justice. A jury trial was had, which in both cases resulted in a conviction, of the accused.

Throughout the proceedings in the justice’s court, numerous objections were made and exceptions taken, which are made the subject of error in these proceedings.

It is claimed that Section 6960, R. S., as amended May 6, 1902 (95 O. L., 374), is unconstitutional:

(1) In so far as it applies to birds killed outside the state and imported into the state, being an interference with interstate commerce, over which Congress alone has power to legislate.

(2) In so far as it applies to birds killed and in possession before the passage of the act, to-wit, May 6, 1902, being an unwarranted interference with property rights.

Assuming now for the purpose cf these propositions that the birds in question were imported from without the state prior to May 6, 1902, the date of the passage of the act, let us examine these two constitutional objections.

Can the defendants be punished for having in possession contrary to the statute birds or the plumage of birds purchased and shipped from without the state and at a place where it is unlawful to kill them?

There are many decisions pro and con on this question. The courts of the states of Maine, Idaho, Pennsylvania, New York, Michigan, Massachusetts, and Kansas have answered the questions in the negative. State v. Bucknam, 88 Me., 385, Bennett v. Express Co., 83 Me., 236, Territory v. Evans, 2 Idaho, 634, Commonwealth v. Wilkinson, 139 Pa. St., 298, People v. The Buffalo Fish Co., 164 N. Y., 93, People v. O’Neil, 71 Mich., 325, Commonwealth v. Hall, 128 Mass., 410, State v. Saunders, 19 Kan., 127.

The theories upon which these decisions rest are:

1st. That the laws are in contravention of Section 8, Article I, of the Federal Constitution.

2d. That birds killed in another state were not within the mean-. ing of the law.

Section 8, Article I, of the Constitution of the United States provides among other things:

“The Congress shall have power * * * ■ to regulate commerce with foreign nations and among the several states and with the Indian tribes.”

The consideration of this question involves an inquiry into the property an individual may have in birds. The authorities agree that the ownership of all game animals and birds is in the people in their sovereign capacity, that is, in the state, and no individual has any property rights in game other than such as the state may permit him to acquire, and even where game has been captured and reduced into possession by the individual with the permission of the state, his ownership in it may be regulated and restrained by appropriate legislation enacted for considerations of state or for the benefit of the community. In other words, the cases hold that' the question of enjoyment in this field is one of public policy and not of private right. •

(See Stevens v. State, 89 Md., 669, Magner v. People, 97 Ill., 320, Ex parte Maier, 103 Cal., 476, Phelps v. Racy, 60 N. Y. 10, Javins v. U. S., 11 Tucker (App. Cases D. of C.), 347, Commonwealth v. Savage, 29 N. E. R, 468, State v. Rodman, 58 Minn., 393, Organ v. State, 56 Ark., 267, Ex parte Keunke, 136 Cal., 527).

In the interesting and well considered opinion of Mr. Justice White in the case of Geer v. Connecticut, 161 U. S., 669, the origin and history of the states ownership in animals ferae naturae, is fully discussed and the doctrine announced in the cases just cited, upheld.

On page 534, Justice White says:

“Aside from the authority of the state, derived from t'he common ownership of the game and the trust for the benefit of the people which the state exercises in relation thereto, there is another view of the power of the state in regard to the property in game, which is equally conclusive. The right to preserve game flows from the undoubted existence in the state of a police power to that end, which may be none the less efficiently called into play, because by so doing interstate commerce may be remotely and indirectly affected.”

It is the duty of the state to enact such laws as will preserve this subject of trust and secure it beneficial use in the future to the people of the state, and if the provisions of the law are reasonable for the accomplishment' of the end sought to be obtained, the law will be held to be a valid exercise of its police power. Gier v. Connecticut, 161 U. S., 669; Lawton v. Steele, 152 U. S., 138.

The object of the law in question is the preservation of those birds which are within its terms, and here it becomes pertinent, as well as interesting, to note the various steps which the Legislature has taken to accomplish its purpose.

They first made it unlawful to kill or injure certain birds in different places and attempted to protect them during their breeding season; then the use of traps and snares were forbidden (64 V., 111); then it was made unlawful to have such birds in possession or expose for sale during the closed season (65 V., 209); ducks were protected by prohibiting the use of punt or swivel guns and push or sneak boats (68 V., 14); then it was made unlawful to disturb or destroy the eggs of such birds (80 V., 189); then the use of artificial lights for duck hunting, and ferrets for rabbit hunting were forbidden (83 V., 187); certain birds were protected during the entire year. This act,. the one under consideration, was passed April 20, 1874 (71 V., 147), and has been amended, though not materially changed several times since (80 V., 189, 83 V., 187; 89 V., 388; 92 V., 86; 93 V., 106; 95 V., 374), and in the last amendment the Legislature saw fit to provide that:

“No person shall * * * have in possession either dead or alive, or purchase or expose for sale, transport or ship within or without the state any dove,” etc.

The terms of the law are broad and unambiguous and there can be no question in the light of the attempts the Legislature has made to protect those birds, that it intended these provisions to reach all those birds mentioned therein, whether killed within or without the state. The offense is the purchasing, having in possession or offering for sale of these birds.

Similar laws have received a like construction by the courts of last resort in other states. Magner v. People, 97 Ills., 320; State v. Judy, 7 Mo. App., 524; Merritt v. People, 68 Ill. App., 273; Merritt v. People, 169 Ill., 218; State v. Farrell, 23 Mo. App., 176; State v. Randolph, 1 Mo. App., 15.

On page 331 in the Magner case the court say:

“We think it obvious that the prohibition of all possession and sales of such wild fowls or birds during the prohibited seasons would tend to their protection, in excluding the opportunity for the evasion of such law by clandestinely taking them when secretly killed or captured here, beyond the state and afterwards bringing them into the state for sale, or by other subterfuges and evasions.
“It is quite true that the mere act of allowing a quail netted in Kansas to be sold here does not injure or in any wise affect the game here; but a law which renders all sales and all possessions unlawful, will more certainly prevent' any possession or any sale of the game within the state, then will a law allowing possession or sales here of the game taken in other states. This is but one 'among many instances to be found in the law where acts, which in and of themselves alone, are harmless enough, are condemned because of the facility they otherwise offer for a cover or disguise for the doing of that which is harmful.”

We might have rested this decision on case of Roth v. State, 51 O. S., 209, but have gone into the matter more fully, that the decision might be better understood.

In that ease, Roth, the proprietor of the St. Nicholas Hotel, at Cincinnati, had in possession for the purpose of sale six quail, which were lawfully killed in New York and shipped to him. He sold one to one of the guests of the hotel for seventy cents, and was prosecuted under Section 6964, R. S., which provides:

“Whoever purchases, sells, exposes for sale, or has in his possession any of the birds, game or animals mentioned in Section 6960, etc., * * * during the time when the killing thereof is made penal, shall be fined,” etc.

The law of that case 'as stated in the syllabus is as follows:

“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 the state and where it was lawful to kill the same. The section is constitutional.”

Most of what has been said on this point equally applied to the contention of counsel that the law has no application to birds in possession before its passage.

The books are full of cases in which it is held that possession of birds lawfully taken during the open season, and retained during the closed season was punishable under statutes similar to the one under consideration in the Roth case. State v. Farrell, above; State v. Judy, above; Express Co. v. People, 133 Ill., 349; State v. Rodman, above.

The contention.of counsel is that to deprive plaintiff in error of these birds would be a violation of his property rights guaranteed by the Constitution

The Supreme Court of Ohio, in Palmer v. State, 39 O. S., 236, on page 238, says:

“The Constitution of Ohio provides that private property shall' ■ever be held inviolate, but subservient to the public welfare, and in vesting the legislative power of the state in the General Assembly, full power is given by the Constitution, to enact such judi-cious and reasonable laws as, in the judgment of the Legislature, may be necessary for the purpose of preventing any person from using his own property or rights in such a way as to injure the community or individuals. This general power is subject only to the limitations imposed by the Constitution of the state or that of the United States, and within it is clearly included the right to regulate, or forbid the sale of property to any extent that may be necessary to promote the public welfare.”

In Williams v. McNeal, 7 C. C., 280, on page 283, the court discusses this question. It is there said:

“The extent to which it (the police power) can be exercised is correctly stated by Refield, J., in 27 Vt'., 149, as to the protection of the lives, limbs, health, comfort' and quiet of all persons and the protection of all property within the state * * * and by which persons and property are subject to all kinds of restraint's and burdens in order to secure the general comfort, health and prosperity of the state.”

In State v. Farrell and State v. Judy, above cited, the courts hold that possession alone is sufficient irrespective of the time and place of killing.

In the Judy case the court say (page 25) :

“The Legislature may, in some cases, pass laws which destroy the right of property. The protection of game is a public advantage, to which private interests may be made to yield to some extent.”

In the Rodman case, 58 Minn., on page 400, Judge Collins speaking for the court says:

“Such limitations deprive no person of his property because he who takes or kills game had no previous, right of property in it, and when he acquires such right by reducing it to possession, he does so subject to such conditions and limitations as the Legislature has seen fit to impose. It is upon this principle that laws have been sustained which restricted the use of such game to the people of the state in which it was caught and killed, and prohibited its being shipped out of the state as an article of commerce; the reason being that to permit game to become an article of commerce even during the open season, would stimulate the killing to an extent leading to its total extermination. In short, the object to be attained is the preservation from extinction or undue depletion of game; and the Legislature may pass any reasonable laws to effect that end, even to the extent of restricting the use of, or right' of property in, the game after it is taken or’ killed. All so-called game laws proceed upon that principle and their constitutionality has rarely, if ever, been successfully, assailed.”

See, also, Gentile v. State, 29 Ind., 409; and Smith v. State, 155 Ind., 611; Am. Ext. Co. v. People, 133 Ill., 649.

As to the reasonableness of this law, the court has already expressed itself. Individuals often have to suffer for the public good. A different construction and view of these laws would render them nugatory, and they may as well never have been passed, so easily could they he evaded.

The liquor and food laws, in various states have been upheld under similar construction, and we know of no reason why the reasoning of those cases is not applicable to the ease at bar.

Neither Mark nor Fitton, the defendants below, were the proprietors of the stores from which the birds and plumage were taken. Mark was the manager of the Cincinnati store which was owned by his wife, and Fitton, the president and general manager of The D. W. Fitton Co., a corporation. Both, however, purchased the stock for the stores and exercised general supervision over the business. In the affidavits they are charged as individuals and it is claimed they could not be held as officers or agents unless that relation is averred and proved. This point is not well taken, for whatever violation of l'aw they could be prosecuted for as individuals, they could as well be prosecuted for, if acting as the agent of another. This ruling is within the decision of Bissman v. State, 9 C. C., 714, affirmed in 54 O. S., 242.

If there was a variance between the charge and proof on this point, the action of the justice was proper under Section 7216, which provides that a variance shall not be ground for acquittal of the defendant unless the trial court finds that such variance is material to the merits of the ease, or may be prejudicial to the defendant.

It is also claimed that the prosecutions were not sanctioned by the prosecuting attorney as provided by law. It sufficiently appears from the evidence that the prosecuting attorney directed the game warden to employ counsel and prosecute the cases.

The state offered no proof that the defendants did not have a permit from the President of the Fish and Game Commission as provided by Section 6960a. This is a matter of defense which must, to avail the defendant, be proven by him.

In Hale v. State, 58 O. S., 676, Sec. 4, syllabus, reads:

“Where an exception or proviso in a criminal statute is a part of the description of -the defense, it must be negatived by averment in the indictment in order to fully state the offense; but when its effect is merely to except' specified acts or persons from the operation of the general prohibitory words of the statute, the negative averment is unnecessary.”

In these cases the affidavits contained the averment but' they were properly treated as mere surplusage.

The best illustration of the rule is afforded by the embezzlement and bigamy statutes. The embezzlement statute provides: “An officer, attorney at law, agent, * ' * * except apprentices or persons under eighteen years of age, who embezzles or converts,” etc. Here the indictment must state that the offender is not an apprentice or under eighteen years old, and the proof offered by the state must sustain it. In the clause charging the offense in the bigamy law is simply this provision:

“Whoever having a husband or wife, marries another, is guilty •of bigamy and shall be imprisoned,” etc.

In a separate clause it is provided that this provision shall not extend to persons whose husband or wife has been continually absent for five successive years without being known to be living within that time.

It has always been held that this was a mere matter of defense, which to avail the accused must be set up and proven by him Stauglein v. State, 17 O. S., 453.

As to the exceptions taken to the admission and rejection of testimony, the court' doesn’t find any error prejudicial to the accused.

The affidavits were sufficient. If open to any objection it is that ■they contain surplusage as the court has already pointed out. The charges given were on the whole fair to the defendants and while' some slight' objections might be made to them, there is no error justifying the setting aside of the verdicts.

In the Mark case, the state offered no evidence to show that a blackbird is a game bird. “The blackbird” is not named in the statute, and the prosecutions in this case come under the general phrase “any other wild bird, other than a game bird.” It was incumbent upon the state, therefore, to prove that a blackbird was a wild bird other than a game bird. For this reason the Mark case should be reversed.

The evidence in the Mark case as to misconduct on the part of the jury in reading a newspaper account of another case and the argument, and being controlled by it, is of itself, sufficient to set aside the verdict'.

In the Fitton case, as well as in the Mark case, the weight of the evidence as to the bird attached to the bil-1 of exceptions being a blackbird, was not sufficient to warrant a verdict'.

Therefore, in both cases the verdicts are set aside and the defendants discharged.  