42 



FOREST AND STREAM. 



[Aug. 18, 1886. 



furnish a marlcet for game, nor furnish game for a mattet. 



IM People «. Manner. 



The Missou ri Court of Appeals has expressed itself with equal 

 clearness and emphasis: "It is urged by defendant that inas- 

 much as it appears that these prairie chickens were imported 

 from Kansas, there can be no conviction. But tlie act in ques- 

 tion makes it a penal offense to have prairie chickens in one's 

 possession from February first to August fifteenth in Mis- 

 souri, no matter where the birds were caught. It is insisted 

 that if this be the meaning of the act, it is in violation of the 

 Constitution of the United States, Congress alone having 

 power to regulate commerce among the several States. We 

 see nothing unconstitutional in the act, The game law 

 would be nugatory if, during the prohibited season, game 

 could be imported from the neighboring States. It would 

 be impossible to show in most instances where the game was 

 caught. The State of Missouri has as much right to pre- 

 serve its game as it has to preserve the health of its citizens, 

 and may prohibit the exhibition for sale, within the State, of 

 provisions out of season, without any violation of the Con- 

 stitution of the United States. So far as we know, this 

 right has never been disputed, and its exercise hy the abso- 

 lute prohibition of the having in possession, or sale, of game 

 within the State limits, during certain periods of the year, is 

 no more an illegal attempt to regulate commerce between the 

 States than would be a city ordinance against selling oysters 

 in July." T/is State v. Randolph, 1 Mo. App. 15. 



To sustain his position antagonistic to the foregoing 

 eminent authorities. Judge Turner has sought to gain sup- 

 port from an opinion of the United Slates Supreme Court. 

 But has he succeeded in doing so? Does the case of the 

 Railroad Company v. Ilusen, in any way apply to the 

 question before him? The Missouri statute before the 

 United States Supreme Court was very different from that 

 considered by Judge Tu^rner. It was aimed directly at and 

 was clearly a regulation of inter-State commerce. As the 

 court expressed it: ^'The Missouri statute is a plain intrusion 

 upon the exclusive domain of Congress. It says to all 

 natural persons, and to all transportation companies, 'You 

 shall not bring into the Slate any Texas cattle, or any 

 Mexican cattle, or Indian cattle between March first and 

 December first, in any year * * * and, if you do bring 

 tl^em in, even for the purpose of carrying them through the 

 State without rmloading them, you shall be subject to extra- 

 ordinary liabihties.' " The object and effect of this statute 

 were held to be to obstruct inter-State commerce, and to 

 discriminate between the property of citizens of one State 

 and that of citizens of other States. But in reaching this 

 conclusion the court made admissions quite bi'oad enough to 

 include a statute differing so much from the one before it as 

 does the statute of Waslnngton Territory, which does not 

 directly touch upon the subject of transportation, or com. 

 merce, and makes no discrimination between the property of 

 citizens of different States. Their words are: "We admit 

 that the deposit in Congress of the power to regulate foreign 

 commerce and commerce among the States was not a sur- 

 render of that which may properly be denominated police 

 power. What that power is it is difficult to define with 

 sharp precision. * * * It extends to the protection of 

 the lives, limbs, health, comfort, and quiet of all persons, 

 and the protection of all property within the State. * * * 

 Many acts of a State may indeed affect commerce without 

 amounting to a regulation of it in the constitutional sense of 

 the term. And it is sometimes difficult to define the 

 distinction between that which merely affkcts or influences 

 and that tohicJi regulates a rule for conduct." 



Was Judge Turner right when 1 e said of the statute of 

 Washington Teratory: "This is a regulation of commerce be- 

 tween the States within the meaning of the Constitution of 

 the United States," or is it rather a legislative act as to a 

 matter not strictly national, but local in its character, con- 

 cerning which Congress has made no legislation, and affect- 

 ing rather than regulating inter-State commerce — in other 

 words, a proper exercise of the police power of a State or 

 Territory? Is it not more nearly allied to those State enact- 

 ments which authorize the bridging of navigable streams, or 

 prohibit the sale or manufacture of intoxicating liquor, both 

 of which have been repeatedly sustained by the United 

 States Supreme Court? Chief Justice Taney said in decid. 

 ing a case which involved the right of a State to require a 

 license for the sale of a package of gin imported from another 

 State: "As Congress has made no regulation on the subject, 

 the traffic in the article may be lawfully regulated by the 

 State as soon as it is landed in its territory, and a tax im- 

 posed upon it, or a license required, or the sale altogether 

 prohibited, according to the policy which the State may sup- 

 pose to be its interest or duty to pursue." 



The highest courts of three States, New York, Illinois 

 and Missouri, are opposed to the conclusion reached by 

 Judge Turner; and in harmony with their ruling is the lan- 

 guage of the United States Supreme Court in decisions ren- 

 dered the present year : "The States have the power, in absence 

 of Congressional legislation, to regulate matters of local inter- 

 est which affect inter-State commerce only incidentally." 

 Brown v. Houston, 114 U. S., 6'<i3. Gloucester Ferry Co. v. 

 Pennsylvania. Id. 196. 



And where the question was the constitutionality of cer- 

 tain provisions of the constitution of the State of Illinois as 

 to the regulation of warehouses, the Court said: "Incident- 

 ally they [the warehouses] may become connected with in- 

 ter-State commerce, but not necessarily. Their regulation is 



a thing of domestic concern, and certainly until Congress 

 acts in reference to their inter- State relations, the State may 

 exercise all the powers of government over them , even though 

 in so doing it may indirectly operate upon commerce outside. 

 * * * * It is not everything that affects commerce that 

 amounts to a regulation of it, within this meaning of the 

 Constitution," Munn v. Illinois, 94 XT. S. 113. 



The interpretation by Judge Turner of the statute, to the 

 effect that it does not prohibit the possession within the 

 State of game lawfully taken without the State, is met by a 

 similar array of authorities The New York court, in Phelps 

 V. Racey, had imder consideration a .similar statvite, and held 

 that the language of the statute was plain and unambiguous. 

 ' 'Hence there is no room for construction . It is a familiar 

 rule that when the language is clear courts have no discre- 

 tion but to adopt the -meaning which it imports. The man- 

 date is that any person having in his or her possession be. 

 twecn certain dates, certain specified game killed, shall be 

 hable to a penalty. The time when or the place where the 

 game was killed, or when brought within the State, or where 

 from, is not made material by the statute, and we have no 

 power to make it so." And similar to this w^as the construe' 

 tion given to the Illinois statute, in the People v. Magner, 

 where the court said: "But, it is argued, this cannot be the 

 correct construction, because such a prohibition does not 

 tend to protect the game of this State. To this there seem 

 to be two answers: First, the language is clear and free of 

 ambiguity, and in such case there is no room for construc- 

 tion. The language must be held to mean what it says. 

 Second, it cannot be said to be within judicial cognizance 

 that such a prohibition does not tend to protect game of this 

 State. It being conceded, as it tacitly is, by the argument, 

 that preventing the entrapping, netting, ensnaring, etc., of 

 wildfowls, birds, etc., during certain seasons of the year, 

 tends to the protection of wildfowls, birds, etc., we think it 

 obvious that the prohibition of all posses.sion and sales of 

 such wildfowls or birds during the prohibited seasons, would 

 tend to theii protection in excluding the opportunity for the 

 evasion of such law, by clandestinely taking them beyond 

 the State and afterward bringing them into the State for 

 sale, or by other subterfuges and evasions." 



Judge Turner cites a Massachusetts decision in favor of his 

 construction. But the statute of Massachusetts was not like 

 that of Washington Territory. It failed to expressly exclude 

 or include, within the provision prohibiting the possession of 

 game within the State, such game as was taken without the 

 State, and when followed by a provision that possession 

 should be prima facie evidence "to convict under the act," 

 and the only penalty was a fine of $30, it could not, under the 

 ordinary rules of construction of penal statutes, be construed 

 in the broader sense of forbidding the possession of game 

 taken out of the State. So far from differing irom the New 

 York decision, it cited it, and approved of the construction 

 there given to the New York statute, which so closely re- 

 sembles the statute of Washington Territory. When Judge 

 Turner admits, as he was bound to do, that the possession of 

 game, though lawfully taken without the State, is an offense 

 within the letter of the act, and then admits that the statutes 

 and decisions of other States show that it has there been con- 

 sidered an aid to the policy of protecting game and fish, to 

 absolutely prohibit the having the same in possession at cer- 

 tain periods of the year, regardless of where the same was 

 killed or taken, he goes far toward admitting that it is also 

 an offense within the spirit and intention of the act. The 

 more so, hecause this construction would not render 

 the provision as to posssession being jmnia facie evi- 

 dence, etc., superfluous and inconsistent with other por- 

 tions of the statute. In Massachusetts the penalty was 

 a fine of $30, no discretion being left in the judge as to the 

 .severity of punishment, and the possession was prima facie 

 evidence "to convict under the act." But in Washington 

 Territory the punishment might be a fine of from $10 to 

 $300, "or imprisonment in the county jail where the offense 

 was committed" for from five days to three months, or both, 

 and possession of game is ";>nm(z /aae evidence in any prose- 

 cution for a violation of any provision of this act that the 

 person in whose possession the same is found, took, killed or 

 destroyed the same in the county wherein the same is 

 found, during the period when it was unlawful to take, kill 

 or destroy the same." When severe penalties of this kind 

 are prescribed, it is important that the prisoner should be 

 allowed to prove the extent of the offense committed. It 

 might well be that a person found with game, which he 

 could prove was lawfully taken without the State, or taken 

 by another in the State before the prohibited season, should 

 receive a punishment proportionate to his offense, and as 

 crimes are punishable in the county where they are com- 

 mitted, this provision is of great utility in rendering it easy 

 for the State to punish the person found with game in his 

 possession, not only for having the game, but also for kill- 

 ing it, the possession being prima, facie evidence that that 

 person killed it in the county where it was found; and a 

 person guilty of both these offenses, brought to trial with 

 this burden of proof against him, could only escape through 

 the dangerous expediency of perjury, while every person 

 arraigned is free to prove the extent of his offense. 



Section ten is therefore not only a most useful and im- 

 portant addition to other provisions of the statute, hut is in 

 this way capable of a construction consistent with an in- 

 terpretation of the statute which shall make the possession 

 of game an offense regardless of where taken. 



In this connection, the construction given to an English 

 statute in the case of Whitehead v. Sraithers, 31 Moak, 458, 

 is interesting. In that case dead plovers were shown to have 

 been received from Holland by a poulterer, and it was held 

 that their sale was prohibited by the general language of the 

 act, Lord Coleridge saying, "1 am of opinion that that argu- 

 ment is not well founded. It is said it would be a wrong 

 thing for the legislature of the United Kingdom to interfere 

 with the rights of foreigners to kill birds. But it may 

 well he that the true and only mode of protecting British 

 wildfowl from indiscriminate slaughter, as well as of pro- 

 tecting other British interests, is by interfering indirectly 

 with the proceedings of foreign persons. The object is to 

 prevent British wildfowl from being improperly killed or 

 sold under pretense of their being icbported from abroad." 



Address all communications to the Forest and Stream Publish- 

 ing Co. 



SPORT IN THE SIERRAS-IV. 



^^HE day following our -successful hunt was spent by all 

 JL our anglers upon a small stream lying some nine miles 

 away in a westerly direction. The trout were plentiful and 

 voracious, but small, and every one caught a surfeit of them 

 in a short time. They would rise greedily at any kind of 

 dark fly, and the sport soon became monotonous, as the fish 

 were not large enough to give any play. They would aver- 

 age about seven inches in length, and were not very fat. The 

 stream was fed from banks of snow, upon the highest moun- 

 tain in that part of the chain, and the water was very cold. 

 The valley it flowed through had an elevation of 7,000 feet, 

 and fish food seemed to be scarce in comparison with the 

 numbers of trout. The neighborhood was the home of an 

 immense colony of marmots, dozens of which could be seen 

 at any time sitting upright, like prairie dogs at the mouths 

 of their burrows, watching our motions. 



W. and H. leave the next morning, much to the regret of 

 those remaining. B. and myself pack our rods and lunch 

 pail into the buggy, and start for the lake where L. the fish- 

 erman dwells, being assured that we can there capture some 

 large trout. L., having been notified of our intention, meets 

 ns with his boats and takes us to the fishing grounds. He 

 assures us that no trout can be caught only by trolling, or 

 with bait in deep water. As he has spent several years at 

 this spot we think he ought to know, and follow his counsel. 

 After fishing about two hours without a bite, and exhaust- 

 ing my patience, I make him land me upon a long low reef 

 of rocks which show above the water. The reef is distant 

 about sixty feet from an island, both on the east and south, 

 and if there are fish to be caught in the lake, ought to >ield 

 some. A tolerably stiff westerly breeze is blowing, and at- 

 taching a stiff leader and two large lake flies to niy lino I 

 commence casting. A few casts and I have a rise, and no 

 minnow either, as my bending rod and singing reel will tes- 

 tify. He is a fighter from the word tro, and affords me some 

 moments of thrilling excitement. At last he yields to the 

 strain, comes gasping to the net, and is safely landed. Upon 

 this reef I capture five trout in an hour's fishing, and I am 

 not without one on the hook for an interval of two minutes 

 during that time, so large and vigorous are they and such 

 splendid fighters. B., seeing my success, gets L. to row him 

 into shallow water, and it is not long until he has his hands 

 full. When we cease fishing at 4 P. M. we have seventeen 

 beautiful trout, the smallest of which is a pound in weight, 

 and the largest not quite two and three-quarters. 



We make arrangements to return next week and take a 

 reluctant leave, as we lose the best hours of fishing by being 

 obliged to return so early. The next two days are passed 

 quietly, and on Tuesday the "Terror" drives B. and myself 

 to the lake and leaves us, promising to return on the follow- 

 ing evening to take us and our catch home. L. is true to his 

 appointment, and is on hand with his boat, and we are soon 

 at his cabin, situated on a small island. The cabm is built 

 of logs, and is low with an almost flat roof, in order that the 

 winds shall get as little surface hold as possible, as they 

 rage here with fearful violence during winter. The eleva- 

 tion is 800 feet, and only the high peaks surmount the 

 spot. The tiecs, mostly tamarack, are gnarled and distorted 

 with their continuous battling with the elements, and have a 

 white and ghostly look, from the bleaching effects of the 

 storms and scanty foliage. The outer and colored portion 

 of the bark is all worn off" by the constant cutting of the 

 frozen particles of snow, upon the west side of the trees; 

 that being the point of the compass whence comes the winter 

 storms. To-day there is a strong east wind blowing, and 

 sport is poor. Now and then we get a rise, but so seldom 

 that it is quite an event, and no large fish are hooked at 

 all. We had fished over all the likeliest places until tired, 

 and B. had ceased casting, and sat poking fun at me for pro- 

 longing a hopeless effort. 



1 was becoming discouraged and rather inattentive, and 

 was casting negligently with my left hand, when, just as I 

 started to recover the flies for another cast, a huge pair of 

 jaws came up and closed determinedly on my stretcher. 

 Through inattention 1 had carried the tip of the rod too far 

 backward before starting to recover, and was consequently 

 taken at a serious disadvantage. Knowing this, I struck 

 with all my might, expecting the rod to shatter in my hands. 

 It proved to be of staunch material and stood the shock well. 

 The reel slips out for a moment, then stops, and the line 

 comes back idly swaying in the wind, with leader and flies 

 all intact; there is nothing broken only the hold of the hook— 

 and my heart. I have been wielding a rod for five-and- 

 thirty years, and during that time have taken many a noble 

 trout, and can judge pretty accurately as to the weight of 

 one when fairiy seen on the rise, and if that fish weighed an 

 ounce less than six pounds I will eat a mate to him raw and 

 without salt. And to think that I should have one of the 

 fairest offers of all my life just at that unhappy moment 

 when unprepared! Brother angler, I ask your sympathy ; 

 my stock ot philosophy (I never had enough to load a freight 

 train) gave out completely under the strain. The loss of that 

 trout is a sore spot in my memory yet, and to touch upon it 

 makes me wince, and will to my dying day. 



That was the last bite we got during the day, as the wind 

 strengthened and blew away on into the night. A sweet 

 sleep on fresh fir boughs tends to restore serenity of mmd, 

 and B. and I rise for an early cast. The sun is not yet up, 



