American Fisheries Society. 37 



nets and tackle was held a depriving of property without due 

 process of law. In Jensen v. State, 7 Ohio Com. Pleas 18, it was 

 lately held that the statute of Ohio, giving the power to any per- 

 son to take and summarily destroy nets, etc., illegally set and 

 making it the duty of wardens, their deputies, sheriffs and con- 

 stables to destroy such apparatus wherever found, whenever such 

 officer should tliinlx: it was illegally set in violation of law, was a 

 depriving of property Mathout due process of law. 



It is manifest that such laws will always be debatable ground. 

 The power is a harsh one, but that it can be exercised within cer- 

 tain limits seems clear. 



Some statutes have gone further and authorized the seizure 

 and destruction or confiscation of property that is in possession 

 with intent to illegally use, or that has been illegally used, but 

 is not in such use when seized. Such laws are of doubtful con- 

 stitutionality and are unnecessary. Bittenhaus v. Johnson, 92 

 Wis. 586; 32 L. R. A. 380. 



But the power of the state to declare as public nuisances, 

 articles of property while in illegal use, is asserted in numerous 



cases. 



Cox V. Schultz, 47 Barb. 65 ; 



Ee Jacobs, 99 N. Y. 98 ; 



McLaughlin v. State, 45 Ind. 336; 



Miller v. New York, 109 U. S. 385 ; 



Wood on Nuisances, 1 ; 



Williams v. Blackwell, 2 Hurlst, etc. 33 ; 



Smith V. Com. 6 B. Monroe, 21 ; 

 . State V. Bailey, 21 N. H. 343 ; 



Meyer v. State, 42 N. J. L. 145 ; 

 And where one voluntarily places his property in a situation 

 where the law says it may be summarily destroj^ed, he cannot 

 recover either in value or kind. Cooley's Const. Lim. Ch. 16; 

 Com. V. Kelley, 163 Mass. 169; Campbell v. Evans, 65 N. Y. 

 356 ; Cook v. Evans, 46 N. Y. 439. 



VII. The Power of ^Yardens and other OfficiaU to enter 

 upon Private Lands and there seize and destroy Fish Baskets, 

 Traps, etc., set for illegal Fishing, even by the Proprietor of the 

 Soil, is well established. 



Weller v. Snoover, 42 N. J. L. 341. 



