PUB00160 - Laserfiche WebLink

Home Browse Search

minnows outside the state for sale. In striking down the law, the Hughes Court ov rruled Geer v. Connecticut, 161 U.S. 519 (1896), which had held that game birds, even when . lawfully killed within the borders of Connecticut, could not be removed beyond those borders. The Hughes Court noted that according to Geer, the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession. By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: "The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." Hughes, 441 U.S. at 327 (quoting Geer v. Connecticut, 161 U.S. at 530). Prepa~ing to overrule Geer, the Hughes Court observed that Geer's "erosion" had commenced a mere fifteen years after it was decided. Hughes, 441 U.S. at 329. This erosion was be un by West v. Kansas Natural Gas Co., 221 U.S. 229 (1911), which commented that i states were allowed to engage in protectionist legislation, embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that "in matters of foreign and interstate commerce there are no state lines." In such commerce, instead of the states, a new power appears and a new welfare, - a welfare which transcends that of any state. But rather let us say it is constituted of the welfare of all of the states, and that of each state is made the greater by a division of its resources, natural and created, with every other state, and those of every other state with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. . ld. at 255 (inner quote not identified in original). See Commonwealth Edison Montana, 453 U.S. 609, 618 (1981) ("The premise of our discrimination cases s that '[t]he very purpose ofthe Commerce Clause was to create an area of free trade amo g the several States.''') (quoting McLeod v. JE. Dilworth Co., 322 U.S. 327, 330 ( 944)) (citing Hunt v. Washington Apple Advertising Comm 'n, 432 U.S. 333, 350 (1977); oston Stock Exchange v. State Tax Comm 'n, 429 U.S. 318, 328 (1977)). Proceeding to the issue at hand, Hughes noted Toomer v. Witsell, 334 U. . 385 (1948). Toomer dealt with statutes by which South Carolina was attempting to pro ect its off-shore shrimp stocks. As Connecticut had claimed ownership of game birds, so South Carolina claimed ownership ofthese shrimp. However, the Toomer Court opined t at [t]he whole ownership theory. . . is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy . 6