36 Thirtieth Annual Meeting 



Some diflficulty has arisen liere. The statutes are variant. 

 Some include fish and game lawfully taken in the close season, 

 and game or fish sent into the state from beyond its borders. 

 Others, except these; and in some cases, where the statutes were 

 silent on the point, the courts have held the state laws inappli- 

 cable to game lawfully taken and to that brought into the state. 

 The burden of proof being on the state to prove that the game 

 was of domestic origin, great difficulty in procuring conviction 

 was found. 



VI. The Poiver of Wardens to seize and destroy Nets in 

 iUcgal use. — The legislature may by law declare all seines, nets, 

 set-lines, traps, spring guns, etc., set for the unlawful killing of 

 fish or game, public nuisances, and may authorize the officers to 

 destroy them when found in such unlawful use. Weller v. 

 Snoover, 42 N. J. Law, 341; State v. Lewis, 134 Ind. 133; Law- 

 ton V. Steels, 119 N. Y. 226-234. This kind of statute does 

 not interfere with a constitutional right. It is analogous to 

 those that declare it criminal to have in possession counterfeit 

 money or dies or tools for making the same, or the laws which 

 authorize the seizure of liquors kept for illegal sale. Mugler v. 

 Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1. 



The case of Lawton v. Steels, 119 N'. Y. 126 is a leading and 

 important one on this point. It was held by the court of Appeals 

 of New York that the state might declare illegally set nets, when 

 found in unlawful use, public nuisances, and that officers might 

 destroy them when so found and seized. The case then was 

 taken to the Supreme Court of the United States, the conten- 

 tion being that the state law deprived the owner of his property 

 without due process of law. That tril)unal affirmed the decision 

 of the New York Court, and Mr. Justice Brown in his opinion 

 discusses at some length the cases where there may be a summary 

 destruction and those in which there should be an adjudication 

 before there could be a destruction of the property. The in- 

 stances where there should be a condemnation are those where 

 the property is of very considerable value, such as a vessel, teams 

 and supplies in lumbering horses, etc. There are several cases 

 in the state courts, where a technical view has been taken and 

 such laws declared unconstitutional. For example; In leck v. 

 Anderson, .57 Cal. 251, the summary confiscation of the boats. 



