8 



Another point upon which opinions differ, and which causes 

 much trouble in the prosecution of such cases, relates to section 1, 

 which says: "No person shall place or cause to be placed or 

 erected any seine, weir, net, fish dam, or other obstruction in or 

 across any of the rivers, creeks, streams, ponds, lakes, sloughs, 

 bayous or other water courses, wholly within or running through 

 this State, in such a manner as shall obstruct the free passage of 

 fish up and down or through such water or 'water courses." The 

 extent to which a net or other device may be considered an ob- 

 struction to the free passage of fish has been the subject oE much 

 controversy. It is coatended oii the part o£ the fishermen and 

 their attorneys that so long as there is a possibility o£ a fish pass- 

 ing out or around such net or device, that no obstruction to the 

 free passage of fish up and down or through the waters exisits. 

 On the other hand, we have taken the position, which we believe 

 was the intent of the law when enacted, that any net, seine or 

 other device pladed in the water, which traps and takes fish, con- 

 stitutes an obstruction to the free passage of fish; that the only 

 possible construction to be placed upon the law which might con- 

 stitute an exception would be the use of a bait fyke, or hoop net, 

 which lure the fish by means of bait, while in all other instances 

 the fish are led or forced into the net by meeting just such 

 obstructions in their passage up, down or through the water as 

 was shown in our description of the construction a::d use of such 

 nets, etc., elsewhere in this report. As will readily be seen, the 

 prosecution of any case meets "with such a wide diversity of opin- 

 ion as to the meaning and purport of the law, whether left to a 

 jury or to a justice of a peace, as to render the application of the 

 law peculiarly elastic, and, as a consequence, a large percentage of 

 the cases fail. 



For the reason that the difficulty of obtaiuicg evidence of viola- 

 tion of the law is so great, we have, so far, found it impossible to 

 enforce that part of section 6 which says that "it shall be unlaw- 

 ful for any person to knowini^ly buy, sell or have in his possession 

 any fish, at any time, which shall have been caught, taken or killed 

 contrary to the provisions of this act," as the burden of proof lies 

 with the prosecution. 



We have no doubt that a great many of the fishermen are guilcy 

 of violations of the law thiough ignorance, or from following the 

 counsel of poor advisers. 



A certain class of fishermen who own large aud extensive rigs 

 have been in the habit of fishing in open violation of the law, at 

 seasons of the year when the catches are unusually large, that is, 

 during the spawning season, with the expectation of beiug arrested 

 and fined, but depending upon a merely nominal fine being im- 

 posed, the catch, as a rule, beiug so large that the fine would not 

 amount to more than a small item of the expense incidental to the 

 work, or taking the chances of escaping without a fine. 



The fact that men must be taken in the act of catching or kill- 

 ing fish often results in great hardship to some, as, in the greater 



