Ex Parte Blardone , 55 Tex. Crim. 189 ( 1909 )

Having differed with my brethren with reference to the disposition of this case, I have concluded to make a few observations why I have done so.

The case and the propositions involved are perhaps sufficiently stated in the main opinion without repetition here. In Hall's case, 52 Tex.Crim. Rep., I indulged some observations as individual views in regard to that phase of the game and fish law which prohibits the captor of such game and fish from disposing of them by sale. My brethren saw proper to quote those views and hold them incorrect. After reviewing those statements I am yet firmly convinced of their correctness. I stated then and concede now the authority of the State to protect game and fish from destruction. It is not my purpose to discuss the extent to which legislative authority may go in such protection. The proposition I assert here and now is that when the Legislature authorizes the killing of game by the citizen, and when the citizen reduces such game to possession it becomes his property and he acquires in it the same property rights that he does in any other property he may own. The law under consideration authorizes the killing of not exceeding twenty-five ducks each day during a specified season, but prohibits the slayer of such game from selling any number thereof. It may be accurately stated that under the terms of this law the number of duck is authorized to be taken only as food and not with or for the purpose of destruction. Any other reason would seriously reflect upon the legislative body. The law was intended to protect such game from useless and capricious slaughter. As before stated, it is now universally held under such game laws that the reduction to possession of the therein mentioned game vests the title in the captor and it becomes his property. Those laws limit the time of killing game, and this is termed the "open season." Other seasons of the year are classed as "closed season" during which game can not be taken or shipped. Such laws have been maintained as valid to the extent of prohibiting shipment of game during the "closed season," though the game was taken during the "open season." Many of the cases are cited by my brethren in the opinion in this case. The leading cases relied upon by my brethren, I have read. The Missouri case, Geer v. Connecticut and Silz v. Hesterberg are by them mainly relied upon. These cases deal with the question of interstate shipment. I do not care to enter that field here for the question is not even remotely involved in this case. Those cases support the doctrine that the States have the authority to prohibit the transportation of game beyond their borders when slaughtered within their territorial lines without infringing the doctrine of interstate commerce. While I concur with the views of Justices Fields and Harlan expressed in their dissenting opinions, yet, with that question, I have no concern as it is not in the slightest involved in this case. The question here is, can the Legislature prohibit the citizen from the disposition of his legally acquired property, when that sale or disposition is confined within the state where acquired during the open season? I am firmly convinced the question is correctly to be answered in the negative. There is nothing contained either in the Missouri case or in Geer v. Connecticut which contravenes this view and a careful scrutiny of Silz v. Hesterberg tends, in my judgment, to support the conclusion I have reached. I believe that Geer v. Connecticut also supports my position, and unquestionably the dissenting opinions in that case clearly does support my views. In the main opinion in Geer v. Connecticut this language is found. "The foregoing analysis of the principles upon which alone rests the right of an individual to acquire a qualified ownership in game, and the power of the State, deduced therefrom, to control such ownership for the common benefit, clearly demonstrates the validity of the statute of the State of Connecticut here in controversy. The sole consequence of the provision forbidding the transportation of game killed within the State, beyond the State, is to confine the use of such game tothose who own it, the people of that State. The proposition that the State may not forbid carrying it beyond her limits involves, therefore, the contention that a State can not allow its own people the enjoyment of the benefits of the property belonging to them in common, without at the same time permitting the citizens of other States to participate in that which they do not own." Mr. Justice White in that opinion emphasizes the fact that game is held for the benefit of the people of the particular State to the exclusion of those of another State, and sustains the proposition that the home State can interdict shipment to another State. The case does not hold that sale could be prohibited amongthe citizenship of the home State, but as I understand that decision as well as that in Silz v. Hesterberg, the contrary doctrine is strongly intimated. The game mentioned is onlyauthorized to be slain for food and not for shipment as aninterstate commercial commodity. If I am incorrect, why authorize the killing of twenty-five ducks each day? The slayer could not possibly consume as food twenty-five ducks, and it was certainly not intended to encourage the slaying of the twenty-five ducks to be thrown away, and confer no food benefit upon anybody but the captor. The law was intended for protection against uselessslaughter and destruction, and not for the encouragement of suchslaughter. The law should be so construed as to protect the game from useless slaughter, and yet keep in sight the reason for the killing, to wit: a food supply. While the slayer might be "led into temptation to reimburse himself for the expenditure in taking the game, yet it is far better that he should not yield to the graver "temptation" of wastefuland useless destruction. I rather incline to the conclusion, however, that my brethren have gone far afield of the real situation when they color the legislative intent with the quotation from the Lord's Prayer. I find nothing on the face of the law indicating such legislative devotional frame of mind.

Nor am I ready to agree altogether with my brethren in their contention of the unlimited power of the Legislature to authorize the killing of game, and yet prohibit its thereafter legitimate use, though that use involves a sale of the captured game. The inhibition of the sale is arbitrary and unreasonable. Such a law, in my judgment, is violative of even the widest stretch of police power.

In Silz v. Hesterberg, 211 U.S. Rep., at p. 39, this language is found: "That the Legislature of the State is not the final judge of the limitations of the police power, and that such enactments are subject to the scrutiny of the courts and will be set aside when found to be unwarranted and arbitrary interferences with rights protected by the Constitution in carrying on a lawful business or making contracts for the use and enjoyment of property, is well settled by former decisions of this court. Lawton v. Steele, 152 U.S. 133, 137; Holden v. Hardy, 169 U.S. 366; Dobbins v. Los Angeles, 195 U.S. 233, 236." It is further said: "In order to protect local game during the closed season it has been found expedient to make possession of all such game during that time, whether taken within or without the State, a misdemeanor. In other States of the Union such laws have been deemed essential, and have been sustained by the courts. Roth v. State, 51 Ohio St. 209; Ex parte Maier, 103 California, 476; Stevens v. State, 89 Maryland, 669, Magner v. The People, 97 Illinois, 320. It has been provided that the possession of certain kinds of game during the closed season shall be prohibited, owing to the possibility that dealers in game may sell birds of the domestic kind under the claim that they were taken in another State or country. The object of such laws is not to affect the legality of the taking of game in other States, but to protect the local game in the interest of the foodsupply of the people of the State." It was again said, quoting Geer v. Connecticut, that: "Aside from the authority of the State, derived from the common ownership of game and the trust for the benefit of its 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 doing so interstate commerce may be remotely and indirectly affected, citing Kidd v. Pearson, 128 U.S. 1; Hall v. De Cuir, 95 U.S. 485; Sherlock v. Alling, 93 U.S. 99, 103; Gibbons v. Ogden, 9 Wheat., 1. Indeed, the source of thepolice power as to game birds (like those covered by the statutehere called in question) flows from the duty of the State topreserve for its people a valuable food supply. Phelps v. Racey,60 N.Y. 10; Ex parte Maier, 103 California, 476; Magner v. The People, 97 Illinois, 320, and the cases there cited." If the fundamental proposition is correct, as asserted by all these opinions, that the exercise of police power in regard to game is in the interest of the people of the State as a common foodsupply, then it may well be asked how, after this food or game has been reduced to possession, it can be used as food for the people generally of the country when the sale and distribution of it is interdicted. The statute authorizes the killing of twenty-five ducks, but prohibits the sale of a single one of the number. Certainly, it would not be contended that the hunter who kills twenty-five ducks would be expected to eat that number, because the law authorizes the killing of that number every day. If so, the hunter would be in the sad dilemma of throwing away his game, or of eating the entire number slain or captured. This construction would mean destruction, uselessly so, and for food supply. It is well known as a matter of common every day knowledge in the history of our people that only a very limited number of our people indulge in the sport of hunting, and I think it may be as safely asserted that on the day of such sport, the sportsman will exercise his power to capture the limit, and this he could legally do each day of the open season. It is as well known that the great mass of our people do not hunt, having neither the opportunity, time, nor inclination, therefore they must rely upon the markets for their supply of game. The number of ducks not consumed by the captor must then be thrown away and permitted to decay so far as this law is concerned as construed, when if the object of the protection of the game as a food supply is to be carried out, the ducks in excess of those used by the captor would find their way to the table and enjoyment of the remainder of the community in accordance with the object of such laws, to wit: food supply. It occurs to me that if the Supreme Court of the United States is correct in saying that the exercise of this police power should be reasonable and not absurd, it would find pertinence in its application here, and I could not well conceive of a greater absurdity in the law than this contention, to wit: the useless destruction of twenty-five ducks, or simply for sportive gratification of the slaying huntsman.

It is to be noted in the authorities quoted by my brethren there is a broad distinction between taking game in what is termed the "open season" and that called the "closed season." The Missouri case and Silz v. Hesterberg, deal with the game held in possession during the closed season; that is, the season when the game cannot be taken. Under these decisions game captured in the open season, or time authorized in which they can be taken, is prohibited from shipment during the closed season or time when game cannot be captured, but for the first time so far as I am aware, it is now held that game authorized to be taken in the "open season" is prohibited where taken to be sold in the "open season" to the citizenship of that State to be used as food. It is plainly to be seen that the authorities cited in the main opinion have no relevancy or bearing upon this question. The police power is a wonderful power, and it seems to constitute the refuge for doubtful decisions when a real tangible reason cannot be given. When the term police power is used a field unknown is entered, but fortunately the courts have begun to curtail the wonderful and aggressive reach of this power as exercised by legislative authority to within reasonable lines. Certainly no law ought to be upheld, the provisions of which is absurd, unjust or oppressive.

I, therefore, thus crudely enter my protest and dissent from the conclusions reached by my brethren.