the letters and the parol testimony, was simply that Dougherty should complete the plumbing work for $2,900 to be paid to him by the trust company as the work progressed. When the circumstances of the case, existing at the time of Bihlmaier's failure, are considered, it is unreasonable to suppose that Dougherty agreed to waive his claim on the five houses. He had at that time done work on which there were due and unpaid $1,150, and work of the value of $1,900 was yet to be done to complete the contract, or $3,050 in all, beside the $2,600. If the contention of the defendants be correct, he agreed in consideration of the payment of $2,900 to do the balance of the work and also release his claim for $2,600. Such a proposition would certainly not present itself very favorably to the judgment of a practical business man. The trust company was obligated to complete the buildings, and Dougherty was required by his bond to complete the plumbing in accordance with his contract. Each party, therefore, was required to complete his contract. There is no apparent reason why Dougherty should be compelled to waive or lose his claim of $2,600. He was not a defaulter in any respect, and was entitled, at the time he made his contract with the Tradesmen's Trust Company, to receive the balance due him on the work as it progressed, and, in addition thereto, the $2,600 which was secured by his "equity" in the five houses. The trust company was not in a position to demand that he release either the houses or Bihlmaier from any part of

his claim.

If it be contended that Mr. Brooks' offer in

his letter of November 26, 1907, was accepted by the conduct or acts of the plaintiff, it would still be a question for the jury whether such conduct or acts amounted to an acceptance. The contract would have to be ascertained from the letters and the acts of the parties, and in such case the question is for the jury, and not for the court. McClure v.

or game by unnaturalized foreign-born residents, and forbidding the ownership or possession of shotguns or rifles by any unnaturalized foreignborn 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.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 704, 765-824, 907-924; Dec. Dig. §§ 236, 278.*]

2. GAME (§1*)-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. [Ed. Note. For other cases, see Game, Dec. Dig. § 1.*] 3. TREATIES (§ 11*)-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 citizens.

[Ed. Note. For other cases, see Treaties, Cent. Dig. § 11: Dec. Dig. § 11.*] 4. TREATIES (§ 7*) - 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.

[Ed. Note. For other cases, see Treaties, Cent. Dig. § 7; Dec. Dig. § 7.*]

Appeal from Superior Court.

Joseph Patsone was convicted of having a gun in his possession, he being an unnatu

293.

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 fol

[1] "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 due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

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. 411..

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.'

[2] "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

*

in 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 note.

"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, 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 earlier enactments.

"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 citizen.

"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

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 longrange firearms does not in any way deprive