Geer v. Connecticut

the Confusion of the "Collective"

After summarizing the subtle differences between "public domain"and "commons" as related to game in Geer v.Connecticut, 161 U.S. 519 (1896,) Justice White, never-the-less, takes a detour into positive "collective" public ownership and the concept of "public trust" or the State acting as the agent of the proprietor. This creates a confusion that persists until over-ruled in Hughes vs. Oklahoma in 1979.

Stated Justice White in Geer: 

"...Therefore, for the purpose of exercising this power, the state, as held by this court in Martin v. Waddell, 16 Pet. 410, represents its people, and the ownership is that of the people in their united sovereignty. The common ownership, and its resulting responsibility in the state, is thus stated in a well-considered opinion of the supreme court of California:

'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 traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good.' Ex parte Maier, ubi supra.

The same view has been expressed by the supreme court of Minnesota, as follows:

'We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the state, not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common.' State v. Rodman, supra."

"The foregoing analysis of the principles upon which alone rests the right of an individual to acquire a qualified ownership in game, and the power of the state, deduced therefrom, to control such ownership for the common benefit, clearly demonstrates the validity of the statute of the state of Connecticut here in controversy. The sole consequence of the provision forbidding the transportation of game killed within the state, beyond the state, is to confine the use of such game to those who own it,- the people of that state. The proposition that the state may not forbid carrying it beyond her limits involves, therefore, the contention that a state cannot allow its own people the enjoyment of the benefits of the property belonging to them in common, without at the same time permitting the citizens of other states to participate in that which they do not own.... The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose. The qualification which forbids its removal from the state necessarily entered into and formed part of every transaction on the subject, and deprived the mere sale or exchange of these articles of that element of freedom of contract and of full ownership which is an essential attribute of commerce..."