12 REPORT OF THE COMMISSIONER OF FISHERIES. 



that "the Commissioner may take or cause to be taken at all times in the waters of 

 the seacoast of the United States, where the tide ebbs and flows, and also in the 

 waters of the lakes, such fish or specimens thereof as may in his judgment from time 

 to time be needful or proper for the conduct of his duties, any law, custom or usage 

 of any State to the contrary notwithstanding." 



On November 6, 1903, which was during the closed season under the Michigan 

 statute, while the eggs of white-fish and trout for the purpose of jiroiJagation in 

 Michigan were being gathered near Marquette, in Lake Superior, under the direction 

 of S. P. Wires, superintendent of the United States fish hatchery at Duluth, he was 

 arrested by the defendants in this case, and the fish in his possession were confiscated. 

 The action of Superintendent Wires and his men in submitting to the humiliation of 

 the forcil)le boarding of their boat and the seizure and confiscation of the fish, with- 

 out forcible resistance, and appealing to the courts where controversies of this nature 

 between the two sovereign governments should be settled without friction, can not 

 be too highly commended. 



The defendants are the Michigan state game and fish warden and liis dejiuty, who 

 claim that all fishing by the United States Commissioner of Fish and Fisheries in 

 the Great Lakes bordering on the state of Michigan must be done under their super- 

 vision, and that the only right the United States Fish Commission has to fish, for 

 the purpose for which Congress created it, in Michigan waters during the closed 

 season, is considered by act No. 88 of the Public Acts of 1899, which reads: "It 

 shall be lawful for the United States Fish Commission, through its representatives 

 or employees, to fish with nets in any of the waters of this state, during any season 

 of the year, for the ])urpose of gathering sj^awn from such fish caught, to have and 

 to hold both rijie and unripe fish, and to have the privilege of selling such fish after 

 stripping to help defray the expense incurred in the work of propogation; that such 

 fishing by said Fish Commission shall be under the supervision and control of the 

 state game and fish warden: And prorided further, That at least seventy-five per 

 cent of the fry resulting from the spawn so taken shall be planted in the waters of 

 this state, the same to be determined by reports to the state game and fish warden." 



A deputy of the state game and fish warden demanded the right to superintend 

 the fishing operations of the United States Commissioner of Fish and Fisheries, 

 which demand was refused, and he then seized and confiscated the fish in the 

 possession of the Commissioner's agents, and caused the arrest of Wires and the 

 I)ersons found assisting him. 



If the United States has the right which Congress evidently intended to confer by 

 the legislation above quoted, and a deputy game warden can legally interfere with 

 the exercise of that right, in the manner admitted in the answer filed in this case, 

 then the Government is entitled to the contempt which the deputy game warden 

 exhibited toward it. The United States can not undertake any work where it is not 

 supreme, and a Government officer could not, in any legitimate function of the Gov- 

 ernment, be under the direction and control of a state officer. If the Federal statute, 

 by which it was intended to confer on the Commissioner the right to take or cause 

 to be taken in the waters of the lakes such fish as in his judgment is needful for the 

 proper conduct of his duties, is constitutional, the legislation is exclusive, and any 

 net of any state, so far as it confiicts with that legislation, is void. Tlie Attorney- 

 General in his brief says: "The defendants contend that the right of complainant 

 to so take fish can be exercised only pursuant to the authority granted to the United 

 States Fish Commission by the laws of the state of Michigan; that the power of 

 complainant is limited and defined by those laws, and that any enactment of Con- 

 gress contravening the statutes of this state in relation to such fishing is unconstitu- 

 tional and void." The act of Congress, if invalid, is so because it conflicts with the 

 Federal Constitution, and not because it contravenes the statutes of the state of 

 Michigan. If it is decided that the United States has no right to take fish, mider 



