sive title, from becoming an article or commodity of interstate

commerce.

In the same line may be cited the case of American Express Co. v. People, 133 Ill. 649; 23 Am. St. Rep. 641. The statute of Illinois for the protection of game permitted the killing of gamebirds for two months in the year. The statute forbade the sale of the game-birds at any time, and made it unlawful, under a penalty, for any carrier or corporation knowingly to receive and transport or convey them beyond the state for sale. Under the act, at the proper time, a person was permitted to kill game for his own use, but not to go upon the market as an article of commerce. The constitutionality of the act was upheld, the court declaring "the ownership was in the people of the state. This being so, it necessarily follows that the legislature had the right to permit persons to kill or take game upon such terms and conditions as its wisdom might dictate, and that the person killing game might have such property interest in it, and such only, as 186 the legis lature might confer. The legislature never conferred an absolute property in quail upon the person who might kill the same." It was held that the discretion of the legislature in making rules and regulations for the preservation and protec tion of the game-birds was not subject to judicial control.

The property rights of the oysters being in the state exclusively, and the legislature having full authority to prohibit it from becoming an article of interstate commerce, and to reserve the oysters for the sole use of its own citizens, and to regulate the sale between its own citizens and between different parts of the state; the question arises, when does the oyster, under the statute, become an article of interstate commerce, and what provision of the statute attempts to burden, restrict, or control it after it has this character. The first section explicitly declares, that "the title and property in all oysters in the waters of this state ... shall be divested in manner or form as herein authorized and provided." That this is a valid enactment, under the principles of law declared in many of the foregoing decisions, cannot be questioned. The second section gives a license to resident citizens to catch and take oysters the property of the state, and further enacts that "no person or persons, not a resident of the state of Alabama, is or shall be authorized to take or transport any such oysters from, in or through any of the waters of the state of Alabama; and it is unlawful for any person, whether a citizen

of the state of Alabama, or of any other state or country, to ship beyond the limits of this state any oysters taken from the waters of his state while the same are in the shells; provided that, between the middle of December and the middle of January, oysters in the shell may be shipped in barrels by railroad to other states," etc. That the state has the right to license its own citizens to catch and take oysters, and to deny to citizens of another state the right to take and transport them, and absolutely to prohibit the shipment of oysters beyond the limits of the state, and to regulate the sale of them within its own limits, not imposing any conditions or burdens or restriction upon the oyster as a commodity after it has entered another state, or after it may be legally delivered in this state for exportation to a common carrier or ways by which interstate commerce is effected, we think is clearly established by the following authorities: Haney v. Compton, 36 N. J. L. 522; The Daniel Ball, 10 Wall. 557; Coe v. Errol, 116 U. S. 517: Gibbons v. Ogden, 9 Wheat. 1; McCready v. Virginia, 94 U. S. 391; 187 Kidd v. Pearson, 128 U. S. 1; Reading etc. R. R. Co. v. Pennsylvania, 15 Wall. 250–252.

If the state has the power to prohibit the exportation of its oysters absolutely, a fortiori, it may limit the shipment of such oysters to such as may have been shelled. If the legis lature sees proper, as a means to prevent the exhaustion of its oyster-beds, to grant to the takers, who can only be resident citizens of the state, or their grantees within the state, such a qualified property right in the oyster as will permit its exportation only after it is shelled, where is the authority to judicially control this discretion, or what principle of the interstate commerce law is violated by such an enactment? The oyster is the absolute property of the state. The state certainly has the power to prevent its becoming an article of interstate commerce. Until it becomes an article of interstate commerce, Congress has no authority or control in the premises. The state, by the statute itself, expressly retains the title to the oysters, and prohibits their shipment beyond the state until shelled. Only after it is shelled does the state relinquish its title, and the grantee previously having but a qualified interest, becomes the absolute owner, and the oyster may then become an article of interstate commerce. When shelled, and the state has parted with its property rights, the state no longer interferes with the article. The owner ships it wherever he pleases, and by whatsoever transportation he prefers.

The statute nowhere interferes with or obstructs the sailing of the vessels. They can come and go when and whithersoever those in control see proper; but this did not authorize them to subvert the soil of Alabama, and to transport in September oysters in the shells from the reefs of Alabama to other states. The statute expressly prohibited it.

The vice in the argument of the defendant's counsel is in assuming that the oyster in the shell was an article of commerce, when in fact the taker, who could only be a citizen of the state, as we have seen, had but a qualified interest in the oyster, and which he could dispose of only in the state. It would be unsound reasoning to hold that the state could prohibit absolutely the taking of its oysters, or confine the use of them exclusively to its own citizens, and yet could not prevent the taker from shipping them beyond the limits of the state. If the statute had undertaken to invest the taker, or his grantee, with a full and absolute property right and title to the oyster in the shell, so as to 188 invest him with the power to convert it into an article of commerce, and had then undertaken to prevent its shipment, or burden its shipment with a tax, a different question might arise. That is not the case here. The state carefully guards against this condition, and it is only after being shelled can it be said that the oyster has become an article of interstate commerce.

These conclusions are fully sustained by the reasonings and principles declared in the case of Kidd v. Pearson, 128 U. S. 1, in which Mr. Justice Lamar discusses at length and with great clearness the doctrine of interstate commerce, and the application of the principles stated in Gibbons v. Ogden, 9 Wheat. 1, and Coe v. Errol, 116 U. S. 517, and other cases cited above.

The policy of the legislature in making provision to keep the shells within the state might be based upon many consid erations. However, this court is not called upon to adjudicate upon the policy of the legislature, and we will not consider this view further than to make the following citations from section 5, volume 2, United States Commission of Fish and Fisheries, 564: "Besides, being useful for making roads, streets, filling wharves and lowlands, and making lime, the shells are of great utility as stools for new oyster-beds, as experiments beginning fifty years ago have demonstrated.. These and other minor utilizations are disappearing, however, along the northern coast, through the increased value of the

shells to spread on the bottom for the foundation of new col· onies, as has been explained; and before long, no doubt, nearly all the shells accumulated will be saved by planters for this purpose, as a better economy than to sell them."

When tested by the rule declared in Ballentyne v. Wickersham, 75 Ala. 533, the statute is not obnoxious to the objection that it contains subjects not clearly expressed in the title. The rule as there held is, that it is "sufficient if they [the subjects] are all referable and cognate to the subject expressed" in the title.

Our conclusion is that the act is not unconstitutional, and that the court erred in its judgment.

Reversed and remanded.

GAME LAWS.-The ownership of game is in the people of the state, and the legislature may withhold from or grant to individuals the right to hunt and kill game, or qualify and restrict that right, as, in its opinion, will best subserve the public welfare: American Express Co. v. People, 133 Ill. 649; 23 Am. St. Rep. 641, and note with the cases discussing the right of property in animals feræ naturæ. For a discussion of the right of property in oysters see the note to Wheatley v. Harris, 70 Am. Dec. 261.

STATUTES-SUBJECT EXPRESSED IN TITLE.-The title of a statute and the act itself must correspond, not literally, but substantially: Macon etc. R. R. Co. v. Gibson, 85 Ga. 1; 21 Am. St. Rep. 135, and note. See also Blair v. State, 90 Ga. 326; 35 Am. St. Rep. 206, and note; note to Hronck v. People, 23 Am. St. Rep. 663, and the extended note to Neuendorf v. Duryea, 25 Am. Rep. 239.

INTERSTATE COMMERCE-WHAT IS. -For a thorough discussion of this subject, see the monographic note to People v. Wemple, 27 Am. St. Rep. 550.

JOHNSON V. OEHMIG AND WIEHL.

(95 ALABAMA, 189.]

SALE OF CHATTELS-FAILURE OF Title as Defense.—The purchaser of personal property in undisturbed possession cannot recover damages in an action on an implied warranty of title, nor set up want of title in his vendor as a defense to an action for the purchase money, although he offers to rescind, in the absence of fraudulent representations made by the vendor in regard to the title.

ACTION to recover two hundred dollars for personal property sold by plaintiffs to defendants. The defendants an swered that the sum sued for was the amount unpaid for a stationary engine and mill rocks purchased by them for three hundred dollars, one hundred dollars of which had been paid. The defendants also alleged that subsequently to such pur

chase and payment, they discovered that plaintiffs had no title to the engine, but before making this discovery they had made valuable improvements thereto; that they then offered, and still offer, to rescind their purchase by returning the property upon the payment to them of the one hundred dollars and the value of the improvements put on the engine; that the plaintiffs refused, and still refuse, to accept such offer, and that they represented that they had a good title to such engine at the time of the purchase. A demurrer to the answer was sustained in the court below, and judgment rendered for the plaintiffs. The defendants appealed.

Davis and Haralson, for the appellants.

L. A. Dobbs, for the appellees.

190 WALKER, J. In Ogburn v. Ogburn, 3 Port. 126, it was held that the vendee of personal property cannot, while holding possession thereof, defend against an action for the purchase money by proof of want of title in the vendor. In the course of the opinion in that case it was said: "We think no defense can be made to an action for the purchase money when the facts relied upon to make it would not, if the parties were changed and the money had been paid, enable the vendee to recover it back for the breach of the warranty of title." The defendants would not be entitled to such recovery on the facts stated in their second plea. In an action by a vendee of personal property against his vendor, for a breach of warranty of title, only damages for actual loss can be recovered. The plaintiff in such an action must not only establish that his vendor is without title to the property sold, and that another is the true owner, but also that he has restored the property to such owner; that it has been taken from him under compulsory proceedings, or that he has parted with money or property in consequence of a judgment obtained against him, or voluntarily in answer to a claim made for the property: O'Brien v. Jones, 91 N. Y. 193. In Harris v. Rowland, 23 Ala. 644, the property sold had been recovered on the adverse title. No such state of facts is shown by the second plea in this case. It is not averred that the defendants have in any way been disturbed in their possession of the property. If that possession remains undisturbed, their title will be perfected by lapse of time. If a paramount title is asserted, the plaintiffs may settle with the adverse claim