Opinion of the Court.

of his estate, and if the bankrupt were absent or could not be found, such schedule and inventory should "be prepared by the messenger and the assignee from the best information they can obtain." Rev. Stat. §§ 5030, 5031. And this inventory, thus prepared by the assignee, the record affirmatively shows, did not embrace the bankrupt's interest in the telegraph line, as we must presume it would, if the assignee had had, or been able to obtain, information in respect thereof. Nor can we find elsewhere in the record any evidence that the assignee knew or was informed of Tinstman's interest prior to August 10, 1888. Counsel for the assignee argues that the fact is that Tinstman's interest was the ownership of certain shares of stock in the telegraph company which were included in the inventory and delivered to the assignee, but the exact contrary appears from the case stated. Nor does the fact appear, which he likewise insists upon, that the assignee not only did not abandon, but actively asserted, his claim.

The question whether the assignee in bankruptcy was entitled to this claim was clearly a Federal question. Williams v. Heard, 140 U. S. 529. And if all the facts stated in the record before us do not, as matter of law, warrant the conclusion at which the highest court of the State arrived upon this question, it is the duty of this court so to declare, and to render judgment accordingly.

We must take the record as we find it, and are constrained to the conclusion that the assignee should not have been held to have exercised the right of choice between prosecuting the claim and abandoning it, in the absence of any evidence whatever to justify the conclusion that he had knowledge, or sufficient means of knowledge, of its existence prior to August 10, 1888; and that therefore there was error in the judgment.

Judgment reversed, and the cause remanded, that the judg ment of the Court of Common Pleas may be reversed, and further proceedings had not inconsistent with this opinion.

Statement of the Case.

GEER v. CONNECTICUT.

ERROR TO THE SUPREME COURT OF ERRORS OF THE STATE OF

CONNECTICUT.

No. 87. Argued November 22, 1895. Decided March 2, 1896.

The provision in the General Statutes of Connecticut, (Revision of 1888, § 2546,) that "no person shall at any time kill any woodcock, ruffled grouse or quail for the purpose of conveying the same beyond the limits of this State; or shall transport or have in possession, with intent to procure the transportation beyond said limits, any of such birds killed within this State," is legislation which it is within the constitutional power of the legislature of the State to enact.

THE General Statutes of the State of Connecticut provide (Sec. 2530, Revision of 1888):

"Every person who shall buy, sell, expose for sale, or have in his possession for any purpose, or who shall hunt, pursue, kill, destroy or attempt to kill any woodcock, quail, ruffled grouse, called partridge, or gray squirrel, between the first day of January and the first day of October, the killing or having in possession of each bird or squirrel to be deemed a separate offence, shall be fined not more than twenty-five dollars.

.

It is further by the statute of the same State provided (Sec. 2546):

"No person shall at any time kill any woodcock, ruffled grouse or quail for the purpose of conveying the same beyond the limits of this State; or shall transport or have in possession, with intent to procure the transportation beyond said limits, any of such birds killed within this State. The reception by any person within this State of any such bird or birds for shipment to a point without the State shall be prima facie evidence that said bird or birds were killed within the State for the purpose of carrying the same beyond its limits."

An information was filed against the plaintiff in error in the police court of New London, Connecticut, charging him

Statement of the Case.

with, on the 19th day of October, 1889, unlawfully receiving and having in his possession, with the wrongful and unlawful intent to procure the transportation beyond the limits of the State certain woodcock, ruffled grouse and quail killed within this State after the first day of October, 1889. The trial of the charge resulted in the conviction of the defendant and the imposing of a fine upon him. Thereupon the case was taken by appeal to the criminal court of Common Pleas. In that court the defendant demurred to the information on the ground, among others, that the statute upon which that prosecution was based violated the Constitution of the United States.

The demurrer being overruled, and the defendant declining to answer over, he was adjudged guilty and condemned to pay a fine and costs, and to stand committed until he had complied with the judgment. An appeal was prosecuted to the Supreme Court of Errors of the State. The defendant on the appeal assigned the following errors:

"1st. In holding that the allegations contained in the complaint constitute an offence in law.

"2d. In holding that said complaint was insufficient in the law without an allegation that the birds therein mentioned were killed in this State for the purpose of conveying the same beyond the limits of this State.

"3d. In refusing to hold that so much of section 2546 of the General Statutes, under which this complaint is brought, as may be construed to forbid the transportation from this State of the birds therein described, lawfully killed and permitted by the laws of the State to become the subject of traffic and commerce, is unconstitutional and void.

"4th. In refusing to hold that so much of said section as may be construed to forbid the receiving and having in possession, with intent to procure the transportation thereof to another State, birds therein described, lawfully killed and permitted by the laws of this State to become the subject of traffic and commerce, is unconstitutional and void.

"5th. In holding that the defendant is guilty of an offence

Opinion of the Court.

under said section if such birds were lawfully killed in this State and were bought by the defendant in the markets of this State as articles of property, merchandise and commerce, and had begun to move as an article of interstate commerce. "6th. In not rendering judgment for defendant."

In the Supreme Court the conviction was affirmed. The case is reported in 61 Connecticut, 144. To this judgment of affirmance this writ of error is prosecuted.

Mr. Hadlai A. Hull for plaintiff in error.

Mr. Solomon Lucas for defendant in error.

MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.

By the statutes of the State of Connecticut, referred to in the statement of facts, the open season for the game birds mentioned therein was from the first day of October to the first day of January. The birds which the defendant was charged with unlawfully having in his possession on the 19th of October, for the purpose of unlawful transportation beyond the State, were alleged to have been killed within the State after the first day of October. They were, therefore, killed during the open season. There was no charge that they had been unlawfully killed for the purpose of being transported outside of the State. The offence, therefore, charged was the possession of game birds, for the purpose of transporting them beyond the State, which birds had been lawfully killed within the State. The court of last resort of the State held, in interpreting the statute already cited, by the light afforded by previous enactments, that one of its objects was to forbid the killing of birds within the State during the open season for the purpose of transporting them beyond the State, and also additionally as a distinct offence to punish the having in possession, for the purpose of transportation beyond the State, birds lawfully killed within the State. The court found that the information did not charge the first of these offences, and therefore that the sole offence which it covered was the lat

Opinion of the Court.

ter. It then decided that the State had power to make it an offence to have in possession, for the purpose of transportation beyond the State, birds which had been lawfully killed within the State during the open season, and that the statute in creating this offence did not violate the interstate commerce clause of the Constitution of the United States. The correctness of this latter ruling is the question for review. In other words, the sole issue which the case presents is, was it lawful under the Constitution of the United States (section 8, Article I) for the State of Connecticut to allow the killing of birds within the State during a designated open season, to allow such birds, when so killed, to be used, to be sold and to be bought for use within the State, and yet to forbid their transportation beyond the State? Or, to state it otherwise, had the State of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the State and forbid its transmission outside of the State?

In considering this inquiry we of course accept the interpretation affixed to the state statute by the court of last resort of the State. The solution of the question involves a consideration of the nature of the property in game and the authority which the State had a right lawfully to exercise in relation thereto.

From the earliest traditions the right to reduce animals feræ naturæ to possession has been subject to the control of the law-giving power.

The writer of a learned article in the Répertoire of the Journal du Palais mentions the fact that the law of Athens forbade the killing of game, (Rep. Gen. J. P. vol. 5, p. 307,) and Merlin says (Répertoire de Jurisprudence, vol. 4, p. 128) that "Solon, seeing that the Athenians gave themselves up to the chase, to the neglect of the mechanical arts, forbade the killing of game.

Among other subdivisions, things were classified by the Roman law into public and common. The latter embraced animals feræ naturæ, which, having no owner, were considered as belonging in common to all the citizens of the State. After pointing out the foregoing subdivision, the Digest says: