sumptions in his favor in this action. He was not on trial for any crime. He was not charged in the decla. ration with any fraud. The action was the equitable one of assumpsit for money had and received by him to his client's use. In defense he set up a transaction with his client which the law does not favor, and holds to be prima facie invalid. It was the law, not the plaintiff, that charged the fraud. The character of this particular transaction, not that of the attorney, was in issue. The act, not the person, was then on trial. The character of the attorney might aid him as a witness, but it could not prove his case for him as a party. While one may invoke the presumption of inrocence in negation, and wait for the prosecution to overcome it by evidence, he cannot successfully invoke it in affirmation, as tending to prove any proposition cast upon him to prove. That presumption is a shield, not a weapon. To illustrate: It is wrong not to pay one's promissory notes, and yet when one is sued upon such a note, and the note is produced, he cannot rely upon the presumption of his innocence of wrong, as proving or tending to prove payment of the

note.

As to the presumption of improbability, the law says it is against the attorney: that it is improbable that the client had the same knowledge and stood on the same footing as the attorney. Hence the requirement that the attorney shall affirmatively prove these propositions. In this case, however, the jury were in effect told that the presumption of improbability supported the attorney; that it was improbable that the transaction was invalid. If that were so, if it were improbable that the transaction was invalid-then of course it was probably valid, and must have been held valid until proved otherwise, and there was no burden on the defendant to establish its validity. There was, however, clearly no improbability that the bargain in this case, by which the client, the owner of the note, got only $75, and the attorney got $187 out of it, was unequal and inequitable.

It must be evident that the instructions excepted to deprived of all force and virility the correct and wholesome rule that was first laid down. Their effect was to relieve the attorney of a burden which the law plainly says he must bear, if he will make such contract. It may be that this contract, while prima facie invalid, was in truth "perfectly fair, adequate, and equitable." We hope it was. But the attorney must prove it so, and as he would prove any other affirmative proposition, by evidence, and not by invoking presumptions of his innocence, and of the improbability of his doing wrong.

THE ADMISSION OF NEW STATES.

Under the constitution of the United States new States may be admitted into the Union.1 But the circumstances under which the admission shall be allowed, and the steps necessary to obtain it are not pointed out by that instrument. The people of a territory may, however, peaceably meet together in convention for the purpose of petitioning congress to abrogate the territorial form of government, and to admit them into the Union on an equal 1 Const. U. S. art. IV, § 3.

3

footing 2 with the older States, and with all their rights and privileges. Their authority for assembling in such convention may be either under a territorial statute or by executive proclamation, or under the provisions of an enabling act passed by congress for that purpose. In several instances the people of a territory have adopted a State constitution and been admitted into the Union without a previous enabling act of congress, though it is contended, and by highly respectable authority, that "to be legitimate, a convention, called to erect a State out of federal territory, or to frame for it a constitution, must have been assembled with the knowledge and consent of congress," and that "to be regular, it must have been called by a formal act of that body." But the mere adoption of a constitution by the people of a territory does not create it a State. In our political system a territory can become a State only by the action and assent of the federal government.6 The constitution presented to congress should be republican in form; it should show that the State boundaries have been fixed; that the population is sufficient; that the exercise of all political and religious rights has been guaranteed, and that no inveterate evil exists within the territory which might be perpetuated under a State government." It should also appear from the constitution that the convention did not exercise legislative functions.

2 See, as to what is included in the guaranty of "an equal footing," 29 Cent. L. J. 454.

3 Cooley's Prin. Const. Law, 177; Paschal's Ann. Const. U. S. (3d ed.) p. 236, note 229.

4 See the cases in point in Jameson on Constitutional Conventions; a more recent illustration is afforded in the admission, respectively, of Idaho and Wyoming.

5 Jameson on Const. Con. (4th ed.) § 187a, p. 174. See further, p. 184, et seq.; Brittle v. People, 2 Neb. 198, 210-212.

6 How v. Kane, 2 Pinney (Wis.), 532, 547. See the different theories respecting the time when a territory ceases to be such and becomes a State, and when the constitution and governmental machinery of a new State goes into operation, alluded to in Secombe v Kittelson, 29 Minn. 555, 559, 12 N. W. Rep. 519. And for a further discussion, see an exhaustive annotation in 29 Am. Law Reg. p. 239 (April, 1890).

7 For a comprehensive discussion of this question, consult Federalist, No. 43, p. 270 (edition by Henry Cabot Lodge); also Von Holst's Const. Law, p. 236, et seq.

8 The act of congress of February 22, 1872, declared that no State should be admitted without the necessary population to entitle it to at least one representative in congress. But this rule has not always been strictly followed.

'Cooley's Const. Lim. (5th ed.) p. 39.

Questions of internal improvements, prohibition, salaries of officials and the location of State institutions are more properly within the province of the legislature, for they involve questions of policy which must change from time to time, and legislation can be more easily modified or repealed, if necessary, than constitutional provisions. A constitution should be what its name purports, a fundamental and general law, with such limitations only on the different departments of the government as shall protect the liberty and secure the rights of the people.10 It is appropriate to here quote a few words from an address of Judge Cooley delivered before the constitutional convention of North Dakota in session

at Bismarck last year. He said: "Don't, in your constitution-making, legislate too much. In your constitution you are tying the hands of the people. Don't do that to any such extent as to prevent the legislature from meeting all evils that may be within the reach of proper legislation. Leave something for them. Take care to put proper restrictions upon them, but at the same time leave what properly belongs to the field of legislation, to the legislature. You have got to trust somebody in the future, and it is right and proper that each department of government should be trusted to perform its legitimate function."'ll

The final decision upon all questions of policy and constitutional law must be left to the discretion of congress, "and the territorial status must be continued until congress shall be satisfied to suffer the territory to become a State."'12 That no inconvenience or embarrassment may arise from the change of government, there is sometimes, though not generally, appended to the constitution, a schedule or ordinance, which contains temporary provisions "intended to bridge over the chasm between the two frames of government, and make the transition, from one to the other easy and without unnatural disturbance of the affairs of the people.' There is no

13

10 To similar effect, see editorials in 29 Cent. L. J. pp. 41, 81; also like observations in 23 Am. Law Rev. p. 992. And see the conclusions of Judge Jameson, in his work on Const. Con. (4th ed.), p. 423, et seq.

11 Debates Const. Convention (North Dakota, 1889), p. 67. Utterly disregarding this sound advice, that body legislated more than had they never heard of Judge Cooley.

12 Cooley's Const. Lim. (5th ed.) p. 39.

18 Agnew, C. J., in Wattson v. C. & D. R. Co., 83 Pa. St. 254, 256. The true function of a schedule or ordi

constitutional or other legal obligation on the part of congress to admit a territory, and "since it may, but never must admit new States," it follows that in its power to admit, is included the power to refuse admission, and this is equivalent to the power to prescribe the terms of admission.15 As that the lands belonging to the United States, lying within the boundaries of the new State, be exempt from taxation.16 This is a very common requirement of congress. Where congress, in imposing conditions of admission, requires them to be ratified by the legislature, which conditions change materially the constitution as altered by the people, it is very doubtful whether the legislature can give binding effect to the constitution as altered."7 After a constitution has been submitted to and approved by congress it becomes the fundamental law of the new State; and no court can inquire into any alleged irregularities in the manner of proposing or submitting it to the people.18 Upon the admission of a territory into the Union, all territorial laws, except such as are expressly or by necessary implication repealed, become operative. 19 And unless otherwise declared by congress the title to every species of property owned by a territory passes to the State on its admission into the Union.20 So the title to lands held in trust for municipal uses, and to shores of navigable waters below, high water-mark, vest in the new State and not in the United States.21 On the admission of a nance accompanying a constitution is fully discussed in Jameson on Const. Conyentions (4th ed.) §§ 102, 103 and 103a. And see further an extended note in 29 Am. Law Register (April, 1890), p. 239.

14 Von Holst's Const. Law, p. 187.'

15 For conditions that have been imposed by congress in times past, see the several cases, notably, of Missouri, Arkansas, Michigan and Nebraska, stated in Cooley's Prin. Const. Law, 174.

16 Cooley on Taxation (2d ed.), p. 87, pl. 6.

17 Cooley's Prin. Const. Law, 177. But see contra, Brittle v. People, 2 Neb. 198.

18 Secombe v. Kittelson, 29 Minn. 555, 12 N. W. Rep. 516.

19 Corporations created under territorial laws become corporations of the new State. Kansas Pac. v. Atch. R. R., 112 U. S. 414, 5 Sup. Ct. Rep. 208. Though as to their power to sue in the federal courts, see Adams Express Co. v. D. & R. G. Ry. Co., 16 Fed. Rep. 712. Territorial laws exempting land grants from taxation bind the future State. St. Paul & Pac. R. Co. v. Parcher, 14 Minn. 297.

20 Lands conveyed to a territory, "its successors and assigns forever," pass to the State when admitted. Brown v. Grant, 116 U. S. 207, 212, 6 Sup. Ct. Rep. 357. 21 Van Brocklin v. State of Tennesee, 117 U. S. 151, 168, 6 Sup. Ct. Rep. 670.

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territory into the Union, the exercise of the right of eminent domain immediately attaches to the newly created State. 22 But this does not divest the federal government of the exercise of the right within the State, so far as may be necessary to the enjoyment of the powers conferred upon it by the constitution.23 The admission of a territory does not extinguish the territorial debt. A mere change in the form of government cannot affect its obligations. Upon the admission of a territory, the jurisdiction of the territorial courts is immedi.tely abolished;25 and congress has full power to regulate the disposal of all appeals, and the transfer of all causes therein.26 But the jurisdiction and authority of the territorial court does not cease with the adoption of the constitution. It continues unimpaired up to the time of the territory's admission, or "throughout the transition period," as it is expressed; and judgments rendered after the adoption of the constitution, though before admission, are valid and binding judgments of the territorial court. 27 But the records of such judgments belong, not to the succeeding State courts, but to the federal courts, and no law of the newly created State can control them, 28 without the concurrence of an act of congress. 29 In conclusion it may be laid down as a general principle, that the new State, except where it may have ceded exclusive jurisdiction to the federal government, acquires general jurisdiction, both civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits.30

HENRY Z. JOHNSON.

22 Lewis on Eminent Domain, § 3, pl. 5; Cooley's Const. Lim. (5th ed.) 650.

23 Trombley v. Humphrey, 23 Mich. 471; Cooley's Const. Lim. (5th ed.) p. 650; Kohl v. U. S., 91 U. S. 367.

24 Rorer on Interstate Law, p. 363; Baxter v. State, 9 Wis. 38. And there is no reason why the State cannot be compelled to pay its obligations. See 12 Am. Law Review, p. 625.

25 Benner v. Porter, 9 How. 235; Forsyth v. U. S., Ib. 571; Ames v. R. R. Co., 4 Dillon, 251.

26 Freeborn v. Smith, 2 Wall. 160; Express Co. v. Kountze Bros., 8 Wall. 342.

Rorer on Interstate Law, 361; How v. Kane, 2 Pinney (Wis.), 531, 547.

28 Hunt v. Palao, 4 Liow. 589.

29 Benner v. Porter, 9 How. 235, 246.

30 Van Brocklin v. State of Tennesee, 117 U. S. 151, 167, 6 Sup. Ct. Rep. 679.

GAME - RECEIVING FOR TRANSPORTATION IN CLOSE SEASON-PENALTY-CONSTITUTIONALITY OF LAW.

AMERICAN EXPRESS CO. V. PEOPLE.

Supreme Court of Illinois, June 5, 1890.

Section 2, ch. 61, Rev. Stat. Ill. 1889, making it unlawful to transport or receive for transportation certain game birds killed within the State, with the knowledge that they have been sold or are to be offered for sale, is constitutional.

CRAIG, J.: This was an action to recover the penalties prescribed for the unlawful transportation of quail in section 2 of "An act to amend sections 1, 2, and 6 of an act entitled 'An act to revise and consolidate the several acts relating to the protection of game, and for the protection of deer, wild fowl, and birds.'" Laws 1889, p. 162. Rev. St. 1889, ch. 61, §§ 1, 2, and 6. The facts agreed upon by the parties on the trial of the cause were in substance as follows: That the defendant, the American Express Company, is a corporation, and carrier of goods for hire; that, between October 1 and October 23, 1889, it received for transportation from Redding, Gibbs, and others at Mason, in Effingham county, divers quail which had been killed by shooting after October 1, 1889, in this State, and on October 23, 1889, the express company did transport such quail to Chicago, and deliver them to Hernse and Lynch Bros., commission merchants. The express company at the time of such receipt for had transportation by its agent, Sisson, at Mason, knowledge that the quail had been sold, and were to be sold, and offered for sale, by said commission merchants.

Section 1 of the act provides "that it shall be unlawful for any person or persons to hunt, pursue, kill, trap, net or ensnare or otherwise destroy, any ruffed grouse, quail, pheasant, or partridge between the first day of December and the first day of October of each succeeding year or any year." Section 2 provides: "It shall be unlawful for any person to buy, sell, or have in possession any of the animals, wild fowl, or birds mentioned in section one of this act, at any time when the trapping, netting or ensnaring of such animals, wild fowl, or birds shall be unlawful, which shall have been entrapped, netted, or ensnared contrary to the provisions of this act; and it shall further be unlawful for any person or persons at any time to sell or expose for sale, or to have in his or their possession for the purpose of selling, any quail, pinnated grouse or prairie chicken, ruffed grouse or pheasant, gray, red, fox, or black squirrel, or wild turkey, that shall have been caught, snared, trapped, or killed within the limits of this State; and it shall further be unlawful for any person, corporation, or carrier to receive for transportation, to transport, carry, or convey, any of the aforesaid, quail, pinnated grouse or prairie chicken, ruffed grouse or pheasant, squirrel or wild turkey, that shall have been

caught, snared, trapped, or killed within the limits of this State, knowing the same to hav been sold, or to transport, carry, or convey the same to any place where it is to be sold or offered for sale, or to any place outside of this State, for any purpose." It is plain, under the facts as agreed upon, the express company received the quail for tranportation, and transported the same, knowing the quail were sold or transported for the purpose of sale, in violation of the terms of the statute; and if the statute is valid, the company was liable for the amount of the penalty prescribed by its terms and provisions. But it is insisted by the express company that the statute is invalid, and upon this ground the judgment rendered in the county court was erroneous. It will be observed that the first section of the act makes it unlawful to hunt or kill quail between the 1st day of December and the 1st day of October of each year, but the section is silent as to October and November. It would follow therefore, that a person might hunt or kill quail during the months of October and November; not, however, for sale, but under the restrictions found in section 2 of the act. The first clause of section 2 makes it unlawful for any person to buy, sell, or have in possession any of the birds named in section 1 of the act, at any time when the trapping, etc., of such animals shall be unlawful. The second clause makes it unlawful for any persons to sell or expose for sale, or have in possession for the purpose of sale, any quail that shall have been killed within the limits of the State. Under this clause, while a person might lawfully kill quail during the months of October and November for his own use, he would have no right whatever to do so for the purpose of placing such quail on the market as an article of commerce. Then follows the clause making it unlawful for any person, corporation, or carrier to transport quail where the same have been killed in this State for sale, regardless of the time such quail may have been killed. A bare reference to the terms of sections 1 and 2 of the act is sufficient to show that the purpose the legislature had in view in passing the act was to protect the game in the State. The hunting and killing of game was regulated for its preservation by the common law, and the control was predicated under the police power of the government. Bl. Comm. bk. 4, p. 114. Statutes in almost every State in the Union may be found enacted for the preservation of game. The textwriters, in treating of the power to legislate on this subject, place it under the police power inherent in each State. Tied. Lim. § 122f, ch. 10, p. 440, says: "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 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 questioned."

In Phelps v. Racey, 60 N. Y. 10, the power of the State to legislate for the preservation of game was called in question, and in deciding the case the court said: "The protection and preservation of game has been secured by law in all civilized countries, and may be justified on many grounds, one of which is for purposes of food." "The means best adapted to this end are for the legislature to determine, and courts cannot review its discretion. If the regulations operate in any respect unjustly or oppressively, the proper remedy must be applied by that body. See, also, Allen v. Wyckoff, 48 N. J. Law, 93, 2 Atl. Rep, 659. In Magner v. People, 97 Ill. 333, the validity of the game law of 1879, to which the act in dispute is amendatory, was before this court, and it was then said: "The ownership being in the people of the State-the repositary of the sovereign authority-and no individual having any property rights to be affected, it necessarily results that the legislature, as the representative of the people of the State, may withold or grant to individuals the right to hunt and kill game, or qualify and restrict it, as in the opinion of its members will best subserve the public welfare."

It is, however, argued that where quail have been killed the dead animals become property, and the taker becomes the absolute owner of such property, and an act to prevent a sale, or tranportation for sale, within the State, would be an interference with private right amounting to a destruction of the right of property without due process of law. The fallacy of the position consists in the supposition that the person who may kill quail has an absolute property in the dead animals. In the Magner Case, supra, it was held, as has been seen, that no one had a property in animals and fowls denominated "game." The ownership was in the people of the State. This being so, it necessarily follows that the legislature had the right to permit persons to kill or take game upon such terms and conditions as its wisdom might dictate, and that the person killing game might have such property interest in it, and such only, as the legislature might confer. The legislature has never conferred an absolute property in quail upon the person who might kill the same. The killing of quail during the months of October and November was permitted, not for sale, not to go upon the market as an article of commerce, but for the mere use of the person who killed the birds. The person killing quail under this statute has but a qualified property in the birds after they are killed. He may consume them. If a trespasser should take them from him, he might maintain an appropriate action to regain the possession. But the law which authorized him to kill the quail has withheld the right to sell or the right to ship for the purpose of sale; and, when such person undertakes to ship for sale, he is undertaking to assert a right not conferred

by law. The act, therefore, does not destroy a right of property, because no such right exists. It will be observed that section 2 of the acts does not prohibit absolutely the transportation of quail which have been killed in this State, but only transportation by persons, corporations, and carriers knowing the same to have been sold, or knowing they were to be sold or offered for sale. If the legislature of the State thought that a statute preventing a citizen from killing quail for sale in the market, and imposing a penalty on a common carrier for shipping or transporting for sale, would result in protecting the game in the State, we perceive no valid reason why a statute of that character might not be enacted. The nature and character of the legislation was a matter resting solely with the legislature; and so long as no constitutional right of the citizen has been infringed upon, the statute must be sustained. The judgment of the county court will be affirmed.

NOTE.-The decision in the principal case is based upon the proposition that the ownership of game is in the State as a sovereignty, which may grant the right to kill birds upon such terms and conditions as its wisdom may dictate, and that there is no absolute private right of property in game birds even after their death, notwithstanding they have been killed during the open season.

Game laws of some sort exist in nearly all of the States, and in many of them provisions may be found making it unlawful to have any game in one's possession after the close of the open season, but there are very few States in which it is unlawful to keep, sell or transport game during the open season. In several of the States the killing of game during a certain period is prohibited and it is made unlawful for any person to sell, offer for sale, or have in his possession any of such game during that period. Provisions of this kind have given rise to considerable litigation and have been differently construed by different courts. In Missouri and New York it has been held that such provisions apply to game killed in a different State, and that it is no defense to a prosecution under such a statute against one having game in his possession during such period to show that the game was killed in a different State. And in New York it has also been held that the game was killed in the open season where it was found in the possession of the defendant during the prohibited period.3 On the other hand it has been held in Massachusetts and the province of Ontario that such a statute does not apply to game killed in another State, and that it is a good defense to a prosecution for having it in one's possession during the close season to show that it was killed in a different State. So in Maine, it is held in contradiction

of the New York doctrine, that it is a sufficient defense to a prosecution for transporting game during the close season to show that it was killed in the open season. It is not unlawful to kill game in the close season in defense of domestic fowls which it was attacking.6

The Illinois statute is unusually clear in its terms, making it unlawful to have game in one's possession during the close season no matter where it was killed, and the decision in the principal case is undoubtedly right if the statute is constitutional. The constitutionality of the statute, indeed, seems to have been the only question made in the case.

It is well settled that such statutes are not in conflict with the provisions of the federal constitution upon the subject of interstate commerce. But a statute allowing game to be killed and to become an article of commerce cannot constitutionally prohibit its transportation into other States.8

There is no property in wild animals or game ferae naturae, until subjected to the control of man.9 Mere pursuit of game gives no title to it.10 But when it is taken and subjected to a man's control he acquires a qualified property therein which the law will protect.11 It might seem, therefore, that game, after it is killed becomes the property of the one who kills it and that the legislature cannot make the mere possession of it in the close season, when it was killed in the open season, unlawful, especially where no time is given to dispose of it; but the theory of the law appears to be that game belongs to the sovereignty and that the State may therefore impose such conditions or restrictions upon the killing thereof as it sees fit. In England the ownership of game, while at large, is in the king.12 In the United States it seems that such ownership is in the State and to hunt and kill game is a mere privilege not involving any private night.13 It is therefore held that statutes such as that under consideration in the principal case are constitutional and valid.14 It has also been held in New Jersey that a State law prescribing greater restrictions and severer penalties in the case of non-residents than in the case of residents for is hunting game not in violation of that part of the fourteenth amendment to the Constitution of the United States which declares that no State shall pass any laws abridging the privileges or immunities of citizens of the United States or depriving any person of life, liberty or property without due process of law,15

5 Allen v. Young, 76 Me. 80. See also Simpson v. Urnvin, 3 B. & Ad. 134.

6 Aldrich v. Wright, 53 N. H. 398.

7 State v. Randolph, 3 Cent. L. J. 187, 1 Mo. App. 15; State v. Judy, 7 Mo. App. 524; Phelps v. Racey, 60 N. Y. 10; Magner v. People, 97 Ill. 320.

8 State v. Saunders, 19 Kan. 127. See also Bowman v. Chicago, etc. R. Co., 125 U. S. 465.

92 Bl. Com. 389, 390; 3 Lawson's Rights, Rem. & Pr. § 1367; Cooley on Torts, 435; note to Wheatley v. Harris, 70 Am. Dec. 258, 259.

10 Pierson v. Post, 3 Caine's Rep. 175, 2 Am. Dec. 264; Buster v. Newkirk, 20 Johns. 75.

112 Kent's Com. *348; Goff v. Kilts, 15 Wend. 551; Taber v. Jenny, 1 Sprague, 215; Manning v. Mitcherson, 69 Ga. 447, 47 Am. Rep. 764; 2 Bl. Com. 394; Amory v. Flynn, 10 Johns. 102, 6 Am. Dec. 316.

12 2 Bl. Com. 409, 410.

13 Magner v. People, 97 Ill. 333; Tiedeman on Limitations of the Police Power, 440.

14 State v. Judy, 7 Mo. App. 524; Magner v. People, 97 Ill. 320; Phelps v Racey, 60 N. Y. 10; State v. Norton, 45 Vt. 258; Gentile v. State, 29 Ind. 409.

15 Allen v. Wickoff, 48 N. J. L. 90; Brothers v. Church, 14 R. I. 398, 51 Am. Rep. 410.