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Subject Area: Law
Topic: The American Revolution and Constitution

§ 124.: Prohibition of sale of game out of season—Prohibition of export of game.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 124.

Prohibition of sale of game out of season—Prohibition of export of game.—

In a subsequent section2 it will be explained that laws have been passed in most of the States, which prohibit the shooting of wild game and the catching of certain fish during certain periods of the year; and in some cases laws have been passed, prohibiting the hunting of certain game, or the catching of certain fish, for a year or more. The object of these laws is the prevention of the extinction of the game by excessive hunting, and by hunting during the hatching and breeding seasons. The constitutional aspect of these laws will be discussed in the subsequent section. The simple prohibition of hunting and fishing during the prohibited season has not proven an effective protection. And for that reason, laws have been enacted in a number of the States, which prohibit absolutely the sale of game and fish during the closed season, and provide appropriate penalties for enforcing the law. These laws have been sustained as constitutional exercises of police power. In one case the constitutionality of the law was sustained, although it prohibited during the closed season the sale of quail which was killed outside of the State.1

Another common regulation, which is designed to prevent the extinction of wild game, is the prohibition of the consignment out of the State for sale of such wild game. And the regulations have been sustained, although they involve an apparent interference with interstate commerce.2 In Minnesota, a law prohibiting the consignment to a merchant for sale of any part of a deer, elk, moose, or caribou, except the head or skin, was sustained;3 while in California, a law was declared to be constitutional which prohibited the sale of any part of the deer.4 Notwithstanding the unusual character of these laws, their enactment can be constitutionally sustained, on the ground that the welfare of all is promoted by them, without imposing any unreasonable restraint upon the individual.

[2]§ 151.

[1]Roth v. State, 51 Ohio St. 209.

[2]State v. Geer, 61 Conn. 144 (quail or grouse); Organ v. State, 56 Ark. 267 (fish); State v. Harrub, 95 Ala. 176 (oysters); State v. Melvin, 95 Ala. 176.

[3]State v. Chapel, 64 Minn. 384.

[4]Ex parte Maier, 103 Cal. 476.