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Subject Area: Law
Topic: The American Revolution and Constitution

§ 151.: Regulation of the right to hunt game and to catch fish. 3 — - 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. 2 [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. 2.

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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§ 151.

Regulation of the right to hunt game and to catch fish.3 —

It is a very common police regulation, to be found in every State, to prohibit the hunting and killing of birds and other wild animals as well as to catch certain fish in certain seasons of the year, the object of the regulation being the preservation of these animals from complete extermination by providing for them a period of rest and safety, in which they may procreate and rear their young. The animals are those which are adapted to consumption as food, and their preservation is a matter of public interest. The constitutionality of such legislation cannot be successfully questioned.

Where the prohibition was limited to the killing of game and the catching of fish in the public lands and streams of the State, no possible question could arise as to the constitutionality of the regulation, for the reason that no one’s rights of property could be violated in such a case. The right to hunt or fish in such a case is at best only a privilege, which the State may grant or withhold at its pleasure. Thus, a statute is not unconstitutional, which prohibits the digging of clams by anyone who has not received a permit from the selectmen of the town.1 But when, in the pursuit of the legislative determination to preserve game from extinction, the legislature goes further and prohibits at certain seasons the killing of game and the catching of fish on the private property of a citizen, the land owner’s qualified property in wild animals is thereby interfered with, which is justifiable, if at all, only as a police regulation for the promotion of the public welfare. Although the constitutionality of these laws has been frequently contested in the past thirteen years, there has been no dissenting opinion to the judgment that these laws are a reasonable exercise of the police power.2 A law is equally constitutional which prohibited hunting and fishing of certain game and fish for a stipulated number of years, in order to permit the moreactive propagation of the species.3

The prohibition of hunting and fishing and catching game and fish during the closed season, necessarily includes the sale of them. And, so far as the prohibition of their sale extends only to the game and fish which are caught within the State, the constitutionality of the prohition cannot be seriously questioned. But the exceeding great difficulty of tracing the place of catching of the game and fish, which are offered for sale during the closed season, has induced the legislatures to prohibit their sale at those times, whether they have been caught and killed within or without the State. Some of the courts have held, that since the game laws are designed to preserve game within the State, they cannot be held to apply to the sale of game and fish which have been killed and caught elsewhere.1 On the other hand, other courts have sustained the constitutionality of the game laws, in their prohibition of the game which may be imported from another State during the closed season. The fact, that the closed seasons are not the same in all the States, so that the sale of game might have been lawful in the exporting State, did not seem to have any weight against the law with these courts.2

The use of seines in the catching of fish is a most fruitful cause of the extinction of fish. For that reason, the use of them in the streams of the State is stringently prohibited in many of the States, with severe penalties and the direction, that the seines shall be promptly destroyed when found on or near the streams. Sometimes the character of the nets, which are allowed, and of those which are disallowed, is fully set forth in the statute. The constitutionality of these laws has been universally sustained, notwithstanding in some cases, as in New York, the penalties are unusually severe.3

Another comparatively common regulation, also designed to preserve game from extinction, is that which prohibits the export of game, fish or oysters from the State. These regulations have been sustained, wherever they have been established.1

All laws, regulative of the pursuit of game or fish, must operate impartially upon all persons. A law, which tended to give to a few a special privilege in game, or which only excluded a few persons, would be unconstitutional.2

[3]See post, § 155.

[1]Commonwealth v. Hilton (Mass. ’99), 54 N. E. 362.

[2]See, in addition to the cases cited in succeeding notes, State v. Geer, 61 Conn. 144; People v. Bridges, 142 Ill. 30; State v. Rodman, 58 Minn. 393; State v. Chapel, 64 Minn. 130; People v. Brooks, 101 Mich. 98; Roth v. State, 51 Ohio St. 209. The Massachusetts law permitted one who propagated fish in his own private waters to catch and eat them himself, but not to sell them, during the closed season. Commonwealth v. Gilbert, 160 Mass. 157. In South Carolina, it has been held that fish is included in the word game in the provision of the constitution, which authorizes the enactment of game laws. State v. Higgins, 51 S. C. 51.

[3]Hughes v. State, 87 Md. 298; State v. Theriault, 70 Vt. 617.

[1]Commonwealth v. Hall, 128 Mass. 410; Commonwealth v. Wilkinson, 139 Pa. St. 298; Allen v. Young, 76 Me. 80.

[2]Magner v. People, 97 Ill. 320; N. Y Ass’n for Protection of Game v. Durham, 51 N. Y. Super. Ct. 306; State v. Rodman, 58 Minn. 393; Roth v. State, 51 Ohio St. 209; Commonwealth v. Gilbert, 160 Mass. 157; State v. Randolph, 1 Mo. App. 157; State v. Judy, 7 Mo. App. 524; Ex parte Maier, 103 Cal. 476; Stevens v. State (Md. ’99), 43 A. 929.

[3]Lawton v. Steele, 119 N. Y. 226; Commonwealth v. Lohman, 8 Kulp, 485; People v. Bridges, 142 Ill. 30; Hughes v. State, 87 Md. 298; Bittenhaus v. Johnston, 92 Wis. 588; State v. Woodard, 123 N. C. 710; Peters v. State, 96 Tenn. 682; State v. Mrozinski, 59 Minn. 465; State v. Lewis, 134 Ind. 250; Lewis v. State, 148 Ind. 346; Osborn v. Charlevoix, Circuit Judge, 114 Mich. 655.

[1]State v. Geer, 61 Conn. 144; State v. Chapel, 64 Minn. 130; Organ v. State, 56 Ark. 267; State v. Harrub, 95 Ala. 176; State v. Melvin, 95 Ala. 176.

[2]Hughes v. State, 87 Md. 298; State v. Higgins, 51 S. C. 51; Walker v. Stone, 17 Wash. 578; 50 P. 488.