Organ v. State

19 S.W. 840, 56 Ark. 267, 1892 Ark. LEXIS 151

• Court: Supreme Court of Arkansas
• Decided: May 28, 1892
• Status: Published

Opinion

Hemingway, J.

The ownership of fish is in the' . State for the benefit of its people in common, and the legislature has the right to permit individuals to’ catch them upon such terms and conditions as it may impose, and to restrict the property acquired in them, when caught, to such extent as it deems proper. McCready v. Virginia, 94 U. S. 391 ;American Express Company v. People, 133 Ill. 649; Magner v. People, 97 Ill. 333.

It may prohibit catching them entirely, or for a specified season ; of it may permit them to be caught for the use of the person who makes the catch, and withhold the right to sell them, or ship them for sale. When preserved for the common benefit of the people of the State, they are not articles of commerce in any sense, and we cannot see that they become such simply because the legislature permits them to be caught by individuals for use within the State only.

One who catches them had originally no separate property in them, and no right to acquire it except as the legislature might provide.; as all right of property in them is derived from the State, it is subject to such terms as the legislature imposes. It saw fit; in the act assailed, to confer a right of property, but to so limit it that the article should not be shipped from the State, the purpose being to restrict the use to those who originally owned it in common. The restriction was imposed by right of ownership, and not in the exercise of any assumed power to regulate the commercial uses of private property.’

Under this limitation fish never pass from the dominion of the State as proprietor or become articles of commerce in the sense contended for by the defendant, because the qualified property right is conferred upon condition that the use shall be restricted and shipment from tbe State not allowed. It follows that the act does not violate the commerce clause of the Federal Constitution, and it could not be seriously contended that it violated any other constitutional provision.

We are aware a different conclusion has been reached by the courts of Kansas and Idaho. State v. Saunders, 19 Kas. 127; Territory v. Evans (Idaho), 23 Pac. Rep. 115. But that announced seems to us the better one, and is sustained by the Supreme Court of Connecticut in an opinion to which we refer for a more extended discussion of the subject. State v. Geer, 61 Conn. 144.

Affirm.