[Cite as Commonwealth v. Patsone, 231 Pa. 46,
79 A. 928 (1911). NOTE: This decision concerns a resident alien in
possession of a shotgun. A Pennsylvania game law prohibited not only hunting by
aliens but possession of rifles and shotguns. The court noted that hunting game
"is not an inherent right in the residents of the state." (P. 929) and "[w]e
legislate primarily for our own citizens in granting the special privileges that
are independent of our inherent rights." (P. 930) To contast
this distinction between inherent right and granted the court cited U.S. v.
Pressor where a right to arms was distinguished from a privilege to march in
public streets as part of an armed body of men. (P. 930) The court
goes on to say, "This prohibition against having deadly and long-range firearms
does not in any way deprive the alien of property without due process of law,
but simply defines the limits of his right to use firearms, by restricting such
right to the use of short-range firearms--revolvers, and pistols--and such other
weapons, as may be necessary for defense of his person and property." (P. 930-931). This
decision was appealed to the U.S. Supreme Court (Commonwealth v.
Patsone, 232 U.S. 138).]
COMMONWEALTH v. PATSONE.
(Supreme Court of Pennsylvania. March 20, 1911.)
1. Constitutional Law--Equal
Protection of Laws--Due Process of Law. Act May 8, 1909
(P.L. 466), to give additional protection to wild birds and game within
the commonwealth, prohibiting the hunting for, or capture or killing of such
wild birds, animals or game by unnaturalized foreign-born residents, and
forbidding the ownership or possession of shotguns or rifles by any
unnaturalized foreign-born resident within the commonwealth, is not violative of
U.S. Const. Amend. 14, providing that no state shall
deprive one of life, liberty, or property without due process of law, nor deny
to any person within its jurisdiction the equal protection of the laws.
2. Game--Right to
Hunt--Nature. Wild animals and game are the property of the state, and
the right to hunt them is but a privilege given by the Legislature, and not an
inherent right to the residents of the state.
3. Treaties--Rights of
Aliens. Act May 8, 1909 (P.L. 466), to give
additional protection to wild birds prohibiting the hunting of such animals by
unnaturalized foreign-born residents, forbidding the ownership or possession of
shotgun or rifle by any unnaturalized foreign-born residents within the
commonwealth, is not violative of the existing treaty between
Italy and the United States (17 Stat. 845), article 2 of which provides
that the citizens of each of the parties shall have liberty to travel in the
territory of the other, to carry on trade, and generally do anything incident to
or necessary to trade upon the same terms as natives of the country, and article
3 providing that the citizens of each party in the territory of the other, as to
protection and security of body and property shall enjoy the same privileges as
natives, on their submitting to the conditions imposed upon the natives, it not
being intended to clothe unnaturalized foreign-born residents with the same
rights, immunities, and advantages conferred solely as a privilege on
4. Treaties--Construction. In construing a treaty the court is
to be guided by the intent of the parties, and if the words clearly express the
meaning and intent, no other means of interpretation can be employed.
Appeal from Superior Court.
Joseph Patsone was convicted of having a gun in his possession, he
being an unnaturalized foreign-born resident, and he appeals. Affirmed on the
opinion of the lower court.
The facts of the case appear in the opinion of
Orlady, J., of the court below, as follows:
"The defendant, an unnaturalized foreign-born
resident of this commonwealth, was adjudged guilty of violating the provisions
of the act of May 8, 1909 (P. L. 466), in owning and having
in his possession a double-barreled shotgun. The facts are not in dispute, and
it is conceded that the proceedings in the summary conviction before the justice
of the peace, and on appeal in the court of quarter sessions, were regular. The
principal contention is, that the provisions of this act are in violation of the
stipulations of the fourteenth amendment of the federal Constitution, viz.: 'Nor
shall any state deprive any (p.929)person of
life, liberty or property without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.'
"The act in question is entitled 'An act to give additional
protection to wild birds and animals and game, within the commonwealth of
Pennsylvania; prohibiting the hunting for, or capture or killing of such wild
birds or animals or game by unnaturalized foreign-born residents; forbidding the
ownership or possession of shotgun or rifle by any unnaturalized foreign-born
resident, within the commonwealth, and prescribing penalties for violation of
its provisions.' The first section provides: 'It shall be unlawful for any
unnaturalized foreign-born resident to hunt for or capture or kill, in this
commonwealth, any wild bird or animal, either game or otherwise of any
description, excepting in defense of person or property; and to that end, it
shall be unlawful for any unnaturalized foreign-born resident within this
commonwealth to either own or be possessed of a shotgun or rifle of any make.
Each and every person violating any provision of this section shall upon
conviction thereof, be sentenced to pay a penalty of twenty-five dollars for
each offense, or undergo imprisonment in the common jail of the county for the
period of one day for each dollar of penalty imposed: Provided, that in addition
to the above-named penalty, all guns of the before-mentioned kinds found in the
possession or under control of an unnaturalized foreign-born resident shall,
upon conviction of such person, or upon his signing a declaration of guilt as
prescribed by this act, be declared forfeited to the commonwealth of
Pennsylvania, and shall be sold by the Board of Game Commissioners as
hereinafter directed.' The third section provides: 'That the possession of a
shotgun or rifle at any place outside of buildings within this commonwealth, by
an unnaturalized foreign-born resident, shall be conclusive proof of a violation
of the provisions of section one of this act, and shall render any person
convicted thereof liable to the penalty as fixed by said section.' And the
fourth section: 'That the presence of a shotgun or rifle in a room or house, or
building or tent, or camp of any description, within this commonwealth, occupied
or controlled by an unnaturalized foreign-born resident, shall be prima facie
evidence that such gun is owned or controlled by the person occupying or
controlling the property in which such gun is found, and shall render such
person liable to the penalty imposed by section one of this act.'
"As stated by the learned trial judge: 'The right to hunt game is but
a privilege given by the Legislature, and is not an inherent right in the
residents of the state. Wild animals and game of all sorts have from time
immemorial been the property of the sovereign, and in Pennsylvania the property
of the state. Its power to regulate and prohibit the hunting and killing of game
has always been conceded.' This subject has been a fruitful source of
legislation, and the frequent changes in our game and fish laws represent a
zealous intention to define and supervise wild birds, animals, game, and fish;
to regulate how they are to be preserved and taken; declare the open and closed
season when they may be taken; the manner and amount of the killing; and the
device, implement, and method permitted. Com. v. Immel, 33 Pa.
Super. Ct. 388; Com. v. McComb, 39 Pa. Super. Ct.
"In Lawton v. Steele, 152 U.S. 133, 14 Sup. Ct. 499, 38
L.Ed. 385, the Supreme Court of the United States declared: 'The
preservation of game and fish has always been treated as within the proper
domain of the police power, and laws limiting the season within which birds and
wild animals may be killed and exposed for sale, and prescribing the time and
manner in which fish may be caught, have been repeatedly upheld by the courts.
* * * It is within the authority of the Legislature to impose
restrictions and limitations upon the time and manner of taking fish and game,
considered valuable as articles of food or merchandise. The power to enact such
laws has long been exercised, and so beneficially for the public that it ought
not now to be called into question.' Even as between states, restrictions may be
placed upon nonresidents, which differ from those imposed on residents, in
regard to license charges and other regulations. Allen v. Wyckoff,
48 N.J. Law, 90, 2 Atl. 659, 57 Am. Rep. 548; Geer v.
Connecticut, 161 U.S. 519, 16 Sup.Ct. 600, 40 L.Ed. 793; James v. Wood, 82 Me. 173, 19 Atl. 160, 8 L.R.A. 448, and
"The authority of the Legislature being conceded, and the purpose
being so meritorious, then every lawful provision deemed necessary to effect the
purpose is within the legislative power. Due process of law is observed in the
destruction of fish nets (Lawton v. Steele, 152 U.S. 133, 14
Sup.Ct. 499, 38 L.Ed. 385), in the forfeiture of vessels even though
engaged for the coasting trade under the act of Congress (Smith v.
Maryland, 59 U.S. 71, 15 L.Ed. 269), and in the summary abatement of
nuisances and destruction of property. Cards, dice, and other articles used for
gambling purposes are perfectly harmless in themselves, but may fall under the
ban of the law and may be summarily destroyed. Many instances of the use of the
police power are to be found. The segregation of bawds, and prohibiting the use
of public sidewalks by public prostitutes (L'Hote v. New Orleans,
177 U.S. 587, 20 Sup.Ct. 788, 44 L.Ed. 899), the use of certain sections
of a city for the manufacture of fertilizers (Fertilizing Co. v.
Hyde Park, 97 U.S. 659, 24 L.Ed. 1036), and other like instances, have
been held to be clearly within (p.930)the
police power. Pittsburg's Petition, 32 Pa. Super. Ct. 210;
4 Thomp. Corps. 5488.
"As stated in Barbier v. Connolly, 113 U.S. 27, 5
Sup.Ct. 357, 28 L.Ed. 923, 'Neither the amendment (14) broad and
comprehensive as it is, nor any other amendment was designed to interfere with
the power of the state, sometimes termed its police power, to prescribe
regulations to promote the health, peace, morals, education, and good order of
the people.' We are within the provisions of the Constitution when we regulate
the manufacture and sale of food stuffs (Com. v. McCann, 14 Pa.
Super. Ct. 221); the number of hours adult females should labor (Com. v. Beatty, 15 Pa. Super. Ct. 5); and in prohibiting women
and children from working in coal mines (Act May 15, 1893 [P. L.
52]); in prescribing the qualifications for physicians and undertakers
(Com. v. Hanley, 15 Pa. Super. Ct. 271); when musical bands
may play in the public streets (Wilkes-Barre v. Garabed, 11 Pa.
Super. Ct. 355); when we authorize the killing of dogs following the
track of protected game (Com. v. Frederick, 27 Pa. Super. Ct.
228); and in denying the right to aliens to obtain licenses to sell
intoxicating liquors (Trageser v. Gray, 73 Md. 250, 20 Atl. 905, 9
L.R.A. 780, 25 Am. St. Rep. 587).
"The creation of the Board of Game Commissioners of the state, whose
duty it is to protect and preserve the game, song, and insectivorous birds and
mammals (Act June 25, 1895, P.L. 273), and the department
of fisheries having charge of the protection, propagation, and distribution of
fish (Act April 2, 1903, P. L., 128), are but legislative
conclusions that have been reached after more than a century's experience on
this subject, and it was deemed necessary and important to add the provisions of
the act of 1909 in order to carry out more effectually the provisions of the
"This legislation is not directed against any particular nationality
or special class of aliens, but prohibits 'any unnaturalized foreign-born
resident' from hunting, capturing or killing any wild bird or animal, and 'to
that end it shall be unlawful' for such person 'to have or be possessed of a
shotgun or rifle of any make.' The act of May 5, 1864 (P. L.
823), prohibiting the carrying of concealed weapons is not obnoxious to
the bill of rights, saving the rights of citizens to bear arms in defense of
themselves and the state. Wright v. Com., 77 Pa. 470. Nor does the
provision in the fourteenth amendment, which declares, 'No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States,' affect this defendant in any way, as he is not a
"An alien while domiciled with us is entitled to the protection of
the laws, and owes in return for this protection a temporary and local
allegiance which continues during the period of his residence. 2 Am. &
Eng. Ency. of Law (2d Ed.) 64. We legislate primarily for our own
citizens in granting the special privileges that are independent of our inherent
rights. The alien is prohibited from doing many things to which a native-born or
a naturalized citizen is entitled. He cannot exercise any political rights
whatever, nor be compelled to fill any elective or appointive office; he is not
qualified to serve as a juror; or to receive a license to sell liquor, hawk or
peddle. A nonresident debtor is not entitled to the benefit of our $300
exemption law. Each state has its own exemption laws for the benefit of its own
citizens. Collom's App., 12 Wkly. Notes Cas. 309; Chemung Canal Bank v. Lowery, 93 U.S. 72, 23 L.Ed. 806; Deni v.
Penna. R. R. Co., 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676. The privilege
to hunt game has been limited to our citizens, and, as was said in Presser v. Illinois, 116 U.S. 252, 6 Sup.Ct. 580, 29 L.Ed.
615: 'If the plaintiff in error has any such privilege he must be able to
point to the provision of the Constitution or statutes of the United States by
which it is conferred. For as was said by this court in United
States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, the
government of the United States, although it is within the scope of its powers
supreme and beyond the states, can neither grant nor secure to its citizens
rights or privileges which are not expressly or by implication placed under its
jurisdiction. All that cannot be so granted or so secured are left to the
exclusive protection of the state.'
"A state has the same undeniable and unlimited jurisdiction over all
persons and things within its territorial limits as any foreign nation, when the
jurisdiction is not surrendered or restrained by the Constitution of the United
States. By virtue of this it is not only the right, but the bounden duty, of the
state to advance the safety, happiness, and prosperity of its people, and to
provide for its general welfare by any and every act of legislation which it may
deem conducive to these ends. New York v. Miln, 36 U.S. 102, 9
L.Ed. 648. The act of 1909 defines two several and independent offenses:
First, the hunting of game by an alien; second, for an alien to either own or be
possessed of a shotgun or rifle of any make. The primary subject of the act is
the preservation of wild birds, animals, and game, and under all our authorities
the privilege of hunting and taking game is limited, under defined restrictions,
to our own citizens. Since long-range firearms--shotguns and rifles--are
generally used in killing wild birds and animals, it is clear that the
Legislature, in prohibiting a foreign-born, unnaturalized resident from hunting
game, intended to make the hunting of game by an alien the more difficult by
taking away from such persons the means by which game is usually killed. This
prohibition against having deadly and long-range firearms does not in any way
deprive the alien of property without due process of (p.931)law, but simply defines and limits his right to use
firearms, by restricting such right to the use of short-range
firearms--revolvers, and pistols--and such other weapons, as may be necessary
for defense of his person and property. 'Whatever one may claim as a right under
the Constitution and laws of the United States by virtue of his citizenship is a
privilege of a citizen of the United States. Whatever the Constitution and laws
of the United States entitle him to exemption from, he may claim as an exemption
in respect to, and such a right or privilege is abridged whenever the state law
interferes with any legitimate operation of federal authority which concerns his
interest, whether it be an authority actively exerted, or resting only in the
express or implied command or assurance of the federal Constitution or law. But
the United States can neither grant nor secure to its citizens rights or
privileges which are not expressly or by reasonable implication placed under its
jurisdiction, and, all not so placed are left to the exclusive protection of the
states.' Cooley's Principles of Constitutional Law, 246, 247. See,
also, Bryce's American Commonwealth, 406.
"This defendant is not a citizen of the United States nor of this
commonwealth. While he is within our jurisdiction he is entitled to the equal
protection of the laws, subject to the limitations of the class of which he is a
member. He is one of a very large class of aliens, whose sojourn in the country
is but temporary, and whose place of abode is capricious and uncertain, who
cannot speak our language nor understand our customs or laws, who pay no taxes,
and share no part of the public burden. Under all our decisions his right to
remain among us is subject to the limitations imposed upon all of his class.
Trageser v. Gray, 73 Md. 250, 20 Atl. 905, 9 L.R.A. 780, 25 Am.
St. Rep. 587; 1 Bouvier's Law Dict. title 'Alien'; 2
Am. & Eng. Ency. of Law (2d Ed.) 64. 'Equal protection of the laws'
cannot be said to be denied whenever the law operates alike upon all persons and
property similarly situated. Barbier v. Connolly, 113 U.S. 27, 5
Sup.Ct. 357, 28 L.Ed. 923; Walston v. Nevin, 128 U.S. 578,
9 Sup.Ct. 192, 32 L.Ed. 544. And in determining what is due process of
law we are bound to consider the nature of the property, the necessity for its
sacrifice, and the extent to which it has heretofore been regarded as within the
police power. *** So far as it is dangerous to the safety or health of the
community, due process of law may authorize its summary destruction. Sentell v. R.R. Co., 166 U.S. 698, 17 Sup.Ct. 693, 41 L.Ed. 1169;
Com. v. McComb, 39 Pa. Super. Ct. 411; In re
Campbell's Registration, 197 Pa. 581, 47 Atl. 860.
"This act of 1909 is not in contravention of the existing treaty
between the kingdom of Italy and the United States. The rule of construction to
be followed in such a case has but recently been considered by our Supreme Court
in Deni v. Penna. R.R. Co., 181 Pa. 525, 37 Atl. 558, 59 Am. St.
Rep. 676, and Maiorano v. B. & O. R. R. Co., 216 Pa.
402, 65 Atl. 1077, 21 L.R.A. (N.S.) 271, 116 Am. St. Rep. 778. By article
2 of the treaty between these countries (17 Stat. 846) 'the
citizens of each of the high contracting parties have liberty to travel in the
states and territories of the other, to carry on trade, wholesale and retail, to
hire and occupy houses and warehouses, to employ agents of their choice, and
generally to do anything incident to or necessary for trade upon the same terms
as natives of the country, submitting themselves to the laws then established.'
And article 3 provides: 'The citizens of each of the high contracting parties
shall receive, in the states and territories of the other, the most constant
protection and security for their persons and property, and shall enjoy in this
respect the same rights and privileges as are or shall be granted to the natives
on their submitting themselves to the conditions imposed upon the natives.' As
held in the last-cited case, 'In construing a treaty the general rule obtains
that the court is to be guided by the intention of the parties, and if the words
clearly express the meaning and intention no other means of interpretation can
be employed.' Is it a reasonable construction to hold that it was intended to
clothe unnaturalized foreign-born residents with the same rights, immunities,
and advantages as are conferred solely as a privilege on citizens? The whole
trend of our decisions is against such an interpretation. The terms of the
treaty provide for the protection and security of their persons and property,
and in this respect, to such protection and security, the enjoyment of the same
rights and privileges as are or shall be granted to the natives on their
submitting themselves to the conditions imposed on the natives.
"An unnaturalized foreign-born resident cannot comply with the
conditions imposed on a native-born or naturalized resident. Article 14 of the federal Constitution defines this condition:
'All persons born or naturalized in the United States and subject to the
jurisdiction thereof are citizens of the United States, and of the states
wherein they reside.' It would be a perversion of language to hold that the
phrase, 'the same rights and privileges as are or shall be granted to the
natives,' was intended to or could embrace all the regulations affecting our
franchise rights; the administration and execution of our laws; the special
rights granted as privileges by our government to particular classes of our
citizens. Such a construction would render nugatory the qualification for
President of the United States as provided by article 2, § 1, par.
5, of our federal Constitution, and other limitations that are (p.932)made equally explicit in our fundamental
"The assignments of error are overruled and the judgement is
Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER,
Marcel Viti, for appellant. W.H. Lemon and W.K.
Shiras, for appellee.
PER CURIAM. The judgement of the superior court is
affirmed on the opinion of Judge Orlady.