NOTES OF RECENT CASES tioii as to whether such a statute is constitutional, in view of the fact that the statute affects game killed within the state and also game killed with out the state which is being shipped in. What ever question may have existed as to the right of the state to make such a regulation has been answered by the police power delegated to the states by Congress in the Lacey Act, passed in aid of the states in the enforcement of their game laws by rendering them equally applicable to game im ported within the state as to game killed within the state. The application of this act is discussed in People v. Hesterberg, 76 N. E. 1032, noted in our July number and cited with approval by the Arkansas court. Before the handing down of the decision in Re Rahrer, 140 U. S. 545, the constitutionality of the Lacey Act would itself have been seriously questioned. The Lacey Act is in all particulars, with the exception that it applies to game instead of liquor, similar to the so-called Wilson Act. These two acts are the only acts in which Con gress has sought to remove the impediment to the enforcement of state laws in respect to the original package of bona fide commerce, created by the interstate commerce clause of the Constitution. In the case of Re Rahrer, the Supreme Court ex pressly repudiated the suggestion that Congress, by means of the Wilson Act, was relinquishing any of its powers or delegating them to the states. On this subject, the court said: " The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore, it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restric tions or impositions upon it by the several states. . . . Inasmuch as interstate commerce ... is national in its character and must be governed by a uniform system, so long as Congress did not pass any law to regulate it specifically, or in such way as to allow the laws of the state to operate upon it, Congress thereby indicated its will that such com merce should be free and untrammeled, and, therefore, that the laws of Iowa, referred to, were inoperative, in so far as they amounted to regula tions of foreign or interstate commerce. It fol lowed, as a corollary, that when Congress acted at all, the result of its action must have been to oper ate as a restraint upon that perfect freedom which its silence insured. Congress has now spoken, and declared that imported liquors shall, upon arrival in a state, fall within the category of domestic articles of a similar nature. It does not admit of argument that Congress can neither dele
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gate its own powers nor enlarge those of a state. Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the states — or to adopt state laws. It has taken its own course and made its own reg ulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property. . . . Congress did not use terms of permission to the state to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part." These cases are important, as it is by no means improbable that the inhibition on state action, im posed by the commerce clause of the Constitution will, from time to time, be sought to be lifted on other articles, oleomargarine, cigarettes, trustmade articles, etc. Andrew A. Bruce. The court considers the question of constitu tionality only with reference to the freedom of interstate commerce. This question, as is pointed out in the above note, is set at rest by act of Congress. The question of liability irrespective of knowl edge is treated simply as matter of construction. It is a grave constitutional question whether the state can punish for an act the criminal character of which could not have been ascertained with the greatest care, and which if innocent could not have been absolutely prohibited. While there is no direct authority against the exercise of the power, the doubts expressed by the United States Supreme Court in 169 U. S. 613, p. 635 are in point. The strongest authority in favor of the power is Ford v. State (85 Md., 465), a case con cerning possession of lottery tickets. There the court intimated that a nominal penalty without costs might be imposed if the possession were shown to be innocent; but the Arkansas statute provides for a minimum fine of one hundred dollars. In view of the fact that the penalty is imposed upon a common carrier who is ordinarily bound to carry, attention should be called to the follow ing provision of the Arkansas statute, which the court does not mention. " Common carriers may refuse any package which they may suppose con tains fish or game designed for export, and may cause said package to be opened or may satisfy themselves in any other way that said package does not contain game or fish." E. F. CONSTITUTIONAL LAW. (Inheritance Tax.) Wis. — The doctrine that the right to take prop erty by devise or descent is a creature of law and not a natural right is strongly disapproved in
