declared it unlawful to kill or possess any woodcock, ruffled grouse, or quail for transportation, or to transport them, beyond the limits of the State. The question was whether the State had power to regulate the killing of game so as wholly to confine its use within the limits of the State. No part of the game was permitted by the statute to become an article of interstate commerce. The Court said (p. 529) that the sole consequence of the provision was "to confine the use of such game to those who own it, the people of that State" and that (p. 530) "in view of the authority of the State to affix conditions to the killing and sale of game it may well be doubted whether commerce is created by an authority given by a State to reduce game within its borders to possession, provided such game be not taken, when killed, without the jurisdiction of the State. Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the State . . . created internal State commerce, it does not follow that such internal commerce became necessarily the subject-matter of interstate commerce, and therefore under the control of the Constitution of the United States.

(p. 532). The fact that internal commerce may be distinct from interstate commerce, destroys the whole theory upon which the argument of the plaintiff in error proceeds."

But that case is essentially unlike this one. The purpose of the Louisiana enactment differs radically from the Connecticut law there upheld. It authorizes the shrimp meat and bran, canned and manufactured within the State, freely to be shipped and sold in interstate commerce. The State does not require any part of the shrimp. to be retained for consumption or use therein. Indeed only a small part is consumed or needed within the State. Consistently with the Act all may be, and in fact nearly all is, caught for transportation and sale in interstate

commerce. As to such shrimp the protection of the commerce clause attaches at the time of the taking. DahnkeWalker Co. v. Bondurant, supra. Penna v. West Virginia, supra 596, et seq. As the representative of its people, the State might have retained the shrimp for consumption and use therein. But, in direct opposition to conservation for intrastate use, this enactment permits all parts of the shrimp to be shipped and sold outside the State. The purpose is not to retain the shrimp for the use of the people of Louisiana; it is to favor the canning of the meat and the manufacture of bran in Louisiana by withholding raw or unshelled shrimp from the Biloxi plants. But by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. Clearly such authorization and the taking in pursuance thereof put an end to the trust upon which the State is deemed to own or control the shrimp for the benefit of its people. And those taking the shrimp under the authority of the Act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause. They are not bound to comply with, or estopped from objecting to the enforcement of, conditions that conflict with the Constitution of the United States. Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389. Power Co. v. Saunders, 274 U. S. 490, 493, 497. Hanover Insurance Co. v. Harding, 272 U. S. 494, 507.

If the facts are substantially as claimed by plaintiffs, the practical operation and effect of the provisions complained of will be directly to obstruct and burden interstate commerce. Penna v. West Virginia, supra. Oklahoma v. Kansas Nat. Gas Co., supra. The affidavits give substantial and persuasive support to the facts alleged. And as, pending the trial and determination of the case,

MCREYNOLDS, J., dissenting.

278 U.S.

plaintiffs will suffer great and irremediable loss if the challenged provisions shall be enforced, their right to have a temporary injunction is plain. From the record it quite clearly appears that the lower court's refusal was an improvident exercise of judicial discretion.

Decree reversed.

Separate opinion of MR. JUSTICE MCREYNOLDS.

I think the court below properly applied the correct doctrine and that the challenged decree should be affirmed.

In Geer v. Connecticut, 161 U. S. 519, 529, 534, this Court upheld legislation by the State which permitted woodcock, ruffled grouse and quail to be killed for transportation and sale within her borders, but forbade the killing or possession of such birds when dead for transportation to other States. It accepted the rule relative to dominion over animals ferae naturae as stated in Ex parte Maier, 103 Calif. 476, [483]—

"The wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation, or the public good."

And commenting upon certain opinions which denied the validity of statutes whereby shipments of game beyond the State were prohibited, it said-" .. but the reasoning which controlled the decision of these cases is, we think, inconclusive, from the fact that it did not consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus overlooked the authority of the State over property in game killed within its con

1

MCREYNOLDS, J., dissenting.

fines, and the consequent power of the State to follow such property into whatever hands it might pass with the conditions and restrictions deemed necessary for the public interest."

Manifestly, Louisiana has full power absolutely to forbid interstate shipments of shrimp taken within her territory. These crustaceans belong to her and she may appropriate them for the exclusive use and benefit of citizens. If the State should conclude that the best interests of her people require all shrimp to be canned or manufactured therein before becoming part of interstate commerce, nothing in the Federal Constitution would prevent appropriate action to that end. This would not interfere with any right guaranteed to an outsider. How wild life may be utilized in order to advantage her own citizens is for the producing State to determine. To enlarge opportunity for employment is one way, and often the most effective way, to promote their welfare.

Certainly, I cannot accept the notion that the record discloses any subterfuge something resorted to for concealment-by Louisiana. And I think no weight should be given to the gratuitous allegation of such purpose by non-residents who are seeking to defeat control by the State in order that they may secure benefits for themselves from wild life found therein.

Any profitable discussion of this controversy must take into consideration the marked distinction between game and property subject to absolute ownership. Cases like Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, which concern property of the latter kind are not persuasive here. A State may regulate the sale and transportation of wild things in ways not permissible where wheat is the subject matter. Geer v. Connecticut, supra; Silz v. Hesterberg, 211 U. S. 31, 41; Clark Distilling Co. v. Western Maryland Ry., 242 U. S. 311.

Opinion of the Court.

JOHNSON, JR., ET AL. v. HAYDEL ET AL.

278 U.S.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA

No. 69. Argued April 18, 1928.-Decided October 15, 1928.

Denial of a temporary injunction to restrain enforcement of certain provisions of the Louisiana "Oyster Act," held erroneous, upon the authority of Foster-Fountain Packing Co. v. Haydel, ante, p. 1. Reversed.

APPEAL from an order of the District Court of three judges, refusing a temporary injunction in a suit to restrain enforcement of a statute of Louisiana concerning the taking of oysters. The case was argued with the one preceding, by the same counsel.

MR. JUSTICE BUTLER delivered the opinion of the Court.

Appellants, plaintiffs below, are engaged in the business of catching and canning oysters for shipment and sale in interstate commerce. Appellees, defendants below, are public officers in Louisiana charged with the duty of enforcing Act No. 258, known as the "Oyster Act," passed in July, 1926, entitled: "An Act To declare all oysters and parts thereof in the waters of the State to be the property of the State of Louisiana, and to provide the manner and extent of their reduction to private ownership; to encourage, protect, conserve, regulate and develop the Oyster industry of the State of Louisiana

Plaintiffs sued to enjoin enforcement of certain of its provisions on the ground, among others, that they violate the commerce clause of the Federal Constitution. The district judge granted a restraining order pending application for a temporary injunction. There was a hearing before the court, consisting of three judges, organized as required by § 266 of the Judicial Code, U. S. C. Tit. 28, § 380; it set