AprJl S, 188S. j 



FOREST AND STREAM. 



19 8 



every where in stream a 



the (Jam in question, and dTiosi 

 l- not ouly become a public nuisance, bu- 

 tie so Lae becom 



i oan be n'i question but that toe es 

 the legislative authority was ( 



' ' 



Ititveryifle 



■ 



m bhi feci rlist they ) 



orilv «i ohm the pasl •■ - 



This being so. there < 



ercise of the police poy 



proper one. 



The complete definition of what constitutes the poliei 

 of the State has probably only beer, approximat . -ly 

 pljshed. Like that of fraud, possibly none ,;: t ,i be mad 

 cannot he outrun and evaded ay the wit of man. t 1 u 

 pervading power in the body politic, eiiiiiiv.-iiii l ■ ■■ 

 preservation of public order and the prevention oil 

 a.Tainsf i.l.e St; ;._■ '.iiralpOtheostablishment.il" - I - 



of the- ml. - 'i :- ... -; • ,. ;_• ....; ,.- ■ .o ■ ■ ., ., 



are calculated to ore vent a conflict of rights, and toil 



nth 



11 



ealtn 



0, s.'ji. r. B 

 in- 



Co", v," McClelland. 



ah. 84: 



of Ne 



Peitilizing Co. v. Hyde Park, TO 111. ' i:; l ,- h,.'.-h rs of Hod- 

 sou Co. v. The state. -I Bab. 738: R. H. Co. v. Fuller, M Walt 

 .ji'.il; Mimii v. Illinois, 04 U. S. hia: Fuller y. E. I:. Co.. »1 Iowa. 

 iss, asi: People v. B, & A. It. B, Co.. to n. v .v/i); ill. Cen. H. 

 II. Co. v. Tin- People, '.to 111. :«::, Euggles v. Illinois, 01 111. :>5ii; 

 Beer Co. v, Mpss. 97 IT. S. 25. 



From the maxim ''sic t'/civ." etc. applied by this court, as I 

 have, already stated in Batavia Paper Manufacturing Co, v. 

 Newton Wagon Co. supra, these police powers come. 



Per Taney, CU. J . in the License Cases, 5 How, S8B: 



"They are nothing more or less than the powers of govern- 



et Inherent in every sovereignty, that is to say, the power 



■■■ ■ mi men and things." 



In the ease of City of New York v. Milu, sv.flra, it is said by 

 the Supreme Court of the United States: 



"We are aware that if is at all times diftieult to define any 

 3Ubjeetwith proper precision and accuracy; if this be SO in 

 general, it is Brttphatiftally so in relation to a subject so diver- 

 sified and multifarious as the drte which we are now consider- 

 ing. If wr were to attempt it, we. should say that every law 

 came within this description which concerned the welfare of 

 the whole people of a Slate, or any individual within it; 

 whether it related to their rights or their duties whether it 

 respected thorn- as men or as citizens oi a state; whether in 



their public or private relations; whether it related to the 

 right, trf persons, or of ptopert y of the whole people, of a State, 

 or of any individual within it; and whose, operatiou was 



l.i. Iil territorial limits of the. State, and upon the persons 

 and things within its jurisdiction," 



It was claimed below that the riparian owners upon Fox 

 River in this State, and in the sister State of Wisconsin, each 

 class aniountiug to thousandsin number, and t heir interests 

 did not long aggregate enough to oome within the. purview of 

 this power as a sufficient part, of t.lie public and of public in- 

 terests. 



It, remains to be seen whether the flshway act in quest ion, 

 under the circumstances already considered, can be justified 

 under 1h' 



In Cot 



Power C 

 It appea 

 conferre 

 darn HOT 



by the ! 



IStS, fo, 

 PUB i . : 



rda 



v. Holy 

 ider tin 



.ke .Tate 



,ideratiou 

 authorita 



to construct;, a:- mi -hi b .. 



ties bavin- fifehing rights beinj 

 assessments; and such damage 

 It further appeared that the 

 the lish from passing to their s 

 some extent caused them not t 

 sage Up the river to the sea, bl 

 of lisbitlg rights below thfi dair 

 " Of it. The O 



ies, mitlcr th 

 statute of ilu 

 determined t 

 structed flier. 

 la 



ithority 

 ite, subsequently exam 

 odde in which a fishv> 

 i hieh would cost about 



isami dot 

 diminish 

 jy might. 



thew 



.fesin- lo add b> the height of their dam by fish-boards. 



The plans and specifications of such flshway were furnished 

 mil the .lit", ndants, under the Fishway Act, rapared to eon- 

 i -i a- -auie. This thev refused to do, upon the ground 



hat th ■ 3tat< had no por* .a 01 i iglo to Compel them, for the 



ii that tin? statutes of the State wen- inoperative and 

 void as impairing the obligation of the contract between thf 

 State and the Hadley Falls Company. But it was held that 

 the right to ha 

 course up and d< 



navigable, was a public right and might be regulated and pro- 

 tected by the Levi '.axon in such manner through such 

 officers, and bj means of such farm of judicial process as It 

 might deem appropriate; a dtha even grantor the right to 



main tain a. iniil-dam across a, stream where -noli fi-h are ae- 

 i i r a ; s -■■ -i i;.-.-i lo the condition or limitation 



thatasultlci.-ui -ii -..-I n .-■ - !• --ay shall be allowed tor the 



ii~h uuli-ss em ofl by expr p . isaon or obvious imphcatioirs 



in the grant. 

 This doctrine, was Held irrespective of the general provision 



of law existing iu that State that charters should at ah times 

 ,. iiiii,-i to arneiidmentj alteration or repeal at the pleasure 



of the legislature, 

 The case went up by writ of error to the Supreme. Court of 



the United States where the decision of the Supreme Court 

 of Massachusetts was affirmed: Holvoke Co. v. Lyman, lo 

 Wall, 500, In the opinion of the court by Clifford, J., the 

 whole doctrine contended for by us in this case was clearly 



impairing the obligation of the contn 

 id the Hadley Falls Company. But ii 

 migratory fish pass in tl 

 i rivers arid streams thougl 



and ( 



uly stated. 



"Rivers, tin, ugh not navigable 

 small.]- s' roams of water, may lie i 

 rights. Rtiliject to legislative eonirc 



■ : Jil.l Mi.-ielic-.ei-y 



valuable supply of fish, suitable 



water in, v. , r 1-, ,?-. ;r-'',-liere regit n. I 



of tie- kind, even iu waters not i 

 rights, that the Legit';. a a , ... tie 

 regulations lo prevent obstruction 

 mule the usual and urdterrnplei 

 riparian o\\ 



r rafts, 



k tors "of the kind, if they 



,11,,.. :• 



and in 



may a I 

 limits, 

 to rime 



I oil 



. ii..-r 

 .-it-, ;■■: 

 right a 

 to suet 

 Whei 



stream 

 used a 



ery, ex- 

 law, an 

 the owi 

 streain. Hows. Xu the:-* 





eSta 



the following] 



owners of 'the laiirl above "the dam "far dtnii 

 flowing liieft- lands, (ii. 'I'hat, he must so cot 

 fish will net he iatoiTlipte.l in their passage 

 spawn," Adding, "That every owner of a w 

 It on the e.-mdition that a sunk-lent and 

 shall be allowed for the tish." 



The com-! also cites with approval the fo 

 tain om position: hurulein. v. Webster. :, ; 



eonimuuity 

 ietlug inter- 

 ive found It 



which have 



the river to east their 

 rniill or dam. holds 

 sonable passage way 



Chn 



i. S Pick. 30*. 



The question raised by the other side is under the .National 

 Constitution prohibiting- the States from passing laws impair- 

 ing the Obligations of contracts. Upon the construction of 

 the Federal Const tiitions, the decision of the courts eifthe. 

 Cubed Stares are final and Conclusive, and will be followed 

 by the courts of i he several Slate:-: whatever ma v be th-jr own 

 views upon the question. Hicks v. Iloehkin, i Johns. Ch, 237. 

 Matthias, v. Bush, Hi Johns, m People y. Piatt, 17 Johns. 

 Ida. Matter of Wendell. 10 Johns, 15* Mi-Ce-rmick v. Pieic- 

 ering, 4 N. Y. Site. Roosevelt v. Cebra. 17 Johns. 108. Coch- 

 ran v. Van Surlay, 20 Wend. f!(55. Ktmzler v. Kohans, a Hill. 

 North Hirer Steamboat Co. v. Livingston, i! Cow. 713. 



The same di.etrini-, so held by the Supreme Court of the 



th sides of the stream he (defendant) is clearly entitled to 

 e soil entirely across the river, subject to an easement in 

 9 public for the purpo-.s ,,i the transportation of lime, flour 

 d other snide- ,n t1a i, and canoes. He is also, as such pro- 

 ietor, entitled to the exclusive right of fishing entirely 

 ross the stream; bin as the proprietors above him have, the 

 BIB right to catch fish on their soil, his right must be so 

 ml as not to prevent a reasonable use. of theirs. Hence he 

 n not by force of his riparian proprietorship merely, erect 

 y dam." or put any other obstruction iu the river, so as to 

 event, altogether, tin- passage of tish up it. The golden 

 k- of hue 'Hie tilrrr /to. „l olienum ami /otaW applies to 

 hi, and its observance may. no doubt, be enforced by BttttU- 

 iv enactments. Hence, the various acts which have been 

 ssed by the Legislature from time to time for the last hun- 

 ,-d years for the purpose of preventing obstruction to the 

 ssage of fish, up almost all the rivers and creeks of any size 

 the State, and for regulating, iu other respects, the rights 

 fishing, are not inconsistent with any provision of the Con- 

 fution, and have generally been directed by a sound and 

 iTeet policy, and of them the defendant as a riparian pro- 

 ie.tor merely, would have no just, cause of complaint," 

 iVithoui, tiirUiLi-ui-giini. ut I may n.-peetfully submit that; 



atleetilig t 



he rights 



people in 





sti-eam as 



part of tl 



teeted iu 



a reuson 



property. 



n anothe 



The cast 



s cited b\ 



tercise of theii- rights of private 



her side, mentioned below, which 

 =iiipt to hold a, contra ry doctrine, will properly be cou- 

 >red under my next, subdivision. People, &c, v" Piatt. 17 

 ms. 195; State v. Glen, supra, ; Crenshaw v. Slate River 

 . ii Randolph. 2o-3; Commonwealth v. Pemi. Coal Co. 6(1 



i if the 



rivate 



ircising such power* 



r in- 



ie t; ( 



■'iff 



uld be othei 



n. ,i r 



i* of 



r a subsequent one 



ii : neither 



6 such exercise by 



the latter only sup- 



fjolie 





purfiostiS results from the ownership of the bed and the banks of the 



he State did nor bind itself as by contract in the private 

 question to pass no law regulating the use of the dam 

 mod by it, so that its use by its owner should be reason- 

 nd not materially impair the right of the. State under 

 ice power to protect its public property, the fish, and 

 their free passage up and down through the natural 

 is of the State, since such a right belongs to it by the 

 power in question. See authorities ante. 

 Tne police powers of the State are inalienable, and its Leais- 

 lature can not bind itaclf by contract, not to exercise them. 

 Stone V.Mississippi, 101 U.S. MLBeerCoinpa.ny v. Mass. 07 1 l".S. 

 :ia; Boyd v. Alabama, 0-1 IT. S). (Ho; Corn. v. Int.. Liq., 115 

 Mass. Ifw; Met. Hoard of Excise v. Barrio, lit N, Y. 657. 



See also cases cited by the Attorney General of the State, 

 in Ruggles v. Tho People etc., on error from this court and the 

 Supreme Court of the United States, also cited iu that, ease 

 when before this court. 



I can not, certainly, in the limited time permitted me, 

 expeot to add to the great research of the coimsel for the 

 State in the case last mentioned, and that of ex-Attorney 

 General E.isall, iu the 111. Central Ii. R. Co. v. The People, 

 also now pending in that court, from which latter lu-ief I 

 have collated the authorities which support my position. 

 M-ith-l shall I attempt to add anything to the "arguments 

 thole very elaborately made since they wer- --ila'antia lly 

 preseni. ed to this court, in the same eu.ses'when pending in this 

 court, already cited. 



It remains, therefore, to comment upon the cases cited by 

 tbe other side already mentioned in the. preceding sub-div? 

 sion. The ease of the People v Plait. 17 Johns., cited by 

 counsel, while full of great learning, and possibly 'consonant 

 with the understanding had at that" time, when the full con- 

 sequences of the Dartmouth Collegi ease hail in. I had time fo 

 be thoroughly considered, is wholly irreconcilable with tho 

 oases cited above iu support of my last main proposition. In 

 that case, as well as in the case of the State V. GieuB, supra, 

 it was held substantially that because the Stale was the 

 grantor of the soil to the respective defendants, it had. parted | 



by its grant to them with its right of regulating their use of 

 the. thing granted, so as not to restrict the reasonable use of 

 property rights otherwise vested and within the protection of 

 the law by other riparian owners upon the same stream. 



And this because the State was the grantor of the, particu- 

 lar fee which interfered with those other rights. 



In neither bf thftse cases, or rather in the ea^e of People v. 

 J latt, as 1 iiave said, was th- powerof the State bvuav ,,| 



t all considered, and 

 nu which followed the 

 feet of that police pow 



who 



igtio 



itth 



v. Penu Coal Co. ami Crenshaw v. State, cited bv cot 



wholly incompatible with the principal eases eit-d above and 

 should not be. followed as authority, especially rioco they not 

 only are not in accord with later and better considered eases, 

 but are squarely in opposition to the more binding precedent- 

 of our national courts. A further prolongation of this argu- 

 ment seems to be wholly unnecessary. 



m. 



In conclusion, 1 need not refer to the assignments of error 

 not insisted upon in the argument upon the other side. Indeed 

 all the considerations which could be urged in support nf 

 them by plaintiff in error were exhausted by him under the 

 points 1 have, noticed, and so far as they relate to those ques- 

 tions have been fully answered. I liiay be pardoned, how- 

 ever, in tak'ng leave of the subject, for noticing the serious 

 charge which counsel for the plaintiff in error, somewhat 

 OTftside of the record, makes, that the law under which 

 plaintiff was couvieted is a direct thrust at the manufacturing 

 interest of this State, and his fling at those whom he calls the 

 sp, .rfingmembers of the Legislature, who be asserts take more 

 plea sure with the line and rod than i he\ do iu the growth and 

 development of the various maunfaettiriie- inn-rets which 

 line Fox River. Neither of the-e assertions comport with 

 the diguity with which the serious questions involved in the 

 case at bar should be considered. "The gentle sport of 

 angling" will not down, no matter what the private views of 

 counsel may ha with regard to it: neither can such consider- 

 ations wherever entertained affect the gravity which the 

 people place upou the due preservation of fish and gam, a- 

 elements ha ring a. direct bearing upon the material interests 

 of the people. 



Neither can the conservation of such interests by the legis- 

 lative power be fairly eonstnied as a.tall derogatory' to the due 

 encouragement of the manufacturing infciesrsof the Stt.tte.in 

 which it and its people luu 



Et 



R. P. til 



Of Counsel for the People. 



THE TF.A'AS CI HIMI sSION.-Last month the term of Mr. 

 R. R. Roberstson. Fish Commissioner of Texas, expired, and 

 we hope soon to hear of his reappointment. He has been a.u 

 energetic man and has done all and even more than might be 

 expected with the. facilities at his command and the hn-k ot 

 enterprise on the part of the State. Me began operations in 

 carp culture a year ago by stocking the State ponds on Bar 

 ton's Creek, near Austin. 'with this fish, which is eminently 

 adapted to Texas waters, and will ultimately prove a great 

 source-.-,? food supply to the people there. Texas needs a tish 

 commissioner and it should give him the moans to work with. 

 Mr. Robertson deserves to be continued in office if he will 

 accept the onerous position. 



F1SHCULTURE IN UERMANT.-Wa have received from 

 that enthusiastic fish-breeder, Hen- Max von dem Rome, ot 

 Bemeuchen, a circular printed in English, which gives a, de- 

 scription of his various adaptation Of fisheidtui.il 

 which are made and sold by C. W. Miililhaoh. oi Neiidat.; 

 near Ciistriu, Prussia. It is fully and excellently illustrated. 

 The apparatus is largely made of tin, and includes hatching 

 apparatus of different forms, filters, transportation cans, etc 



PUBLISHER'S DEPARTMENT. 



e. twenty shares of the Willew enme Club, par jSiSO Hake. 

 rand, etc., in Catskillsi, for sale for J8S5. George W, van 

 assail street, S.V.—Artr. 



ttlSSSsi 



.- Attei 



lain, ire 



ues. 



t 



On 



idled 1 

 t thev 

 taken 



..he 



-.nu ,a >lesf,rs. Hol'er 

 enterprise n. ttdver 



sunipliv,:- . rldeneeoi 



natural than f,.'- 11 

 he sells— Esterhre. 



''. : 'oe,/: 



--V 



1 



l!se'ih 



"7,s 



t popular steel pens 



"No, I didn't ha\ 

 I could scarcely , 



disease for ,,;, ..i . 

 known citizen -fK 



?s 



r Tm 



Va 



z 



tisfl 



^'s 



lieved iu a few hours, 

 uttered from Kilhiey 

 . T. HaUcock, a, weli- 

 und as a bale of India 



ORIENTAb. 



CiNTO 1. 



One nighl . the poor dis'-onsolatt 



jewels! wino 



dTy part. 



,rio 



.air were married yesterday. 



-..": . tul-aJVl. i;.- I ..:i,|.| ;. I-,:,!:.-, 



•and T. Feliv, a mighiy slice of cake. i,/r 



Some years ago the English sparrow was introduced into 

 California,. Wherever he has gone to tho rural districts he 

 has become the same nuisance as elsewhere. The persons who 

 introduced these birds were probably not aware that they 

 iverointhctiug a, damage upon the State equal to a hundred 

 thousand dollars or more. The owners of suburban fruit 

 orchards are exterminating this bird as a measure of protec- 



The 



ployed not less than 

 ild geese, which w 



s not lei. 



-,..u fo shoot 



..heat fields. The 



in the fruit, orchards. 



" "SS qv.v—,1-1 .. u.s,u mi.- urr.Liu . u.g u,.- , . m a u iimiid. J. Ut. 



scale-hug, eureulio, and wooly apis are in the. fruit, orchards. 

 Now conies the English sparrow to help along the destruction- 

 There is just one remedy, and that is to kill every one of 

 them.— 8an Francisco Bulletin, 



