June 14, 1888.] 



FOREST AND STREAM. 



418 



SEALS DESTROY SALMON. 



THE enormous capacity of seals for destroying fish is 

 not fully known except to those who have kept 

 them in confinement, and when so kept the expense of 

 feeding prompts the owner to reduce the diet to the 

 minimum quantity. We have fed both seals and sea 

 lions in captivity, for months, and found that they were 

 expensive boarders, even when fed upon the cheapest 

 fish in New York markets, usually herrings. About iifty 

 herring per day kept the hair seals in good order, but 

 they always wanted more. "Old Dick," the sea lion 

 which a dozen years ago made the walls of the New York 

 Aquariun echo with his hoarse bellows for fish, and who 

 was the largest of his kind ever exhibited, at that time, 

 weighing over six hundred pounds, could be kept on one 

 hundred and fifty herrings a day, but no doubt twice that 

 number could have been eaten. When he traveled with 

 the circus, and his appetite was increased by the invol- 

 untary exerc se on the road, the attendant told us that he 

 never saw him so satisfied that he could not hold another 

 fish. 



On this subject. the Portland Oregonian. of late date, 

 savs: "The baby seal recently added to the free 

 menagerie on Morrison street has seemed content to bask 

 in the sun, eat the salmon given it, and whine for mote. 

 Saturday, however, it seemed to wake up to the exigen- 

 cies of life, and concluded it had to hustle, so it rolled 

 into the tank and started to catch one of the fish, and the 

 way the pair went round the tank was a caution to all 

 observers. The seal weighs only lOlbs., but it eats 41hs. 

 of salmon per clay and looks around for more. From this 

 a slight idea may be formed of the amount of salmon 

 consumed by the thousands of seals and hundreds of sea 

 lions which haunt the mouth of the Columbia, and it 

 would seem that while the Legislature and the United 

 States Government are endeavoring to keep up the supply 

 of salmou in the Columbia by means of a hatchery, they 

 might help the matter by taking some steps to extermi- 

 nate the seals and sea lions." 



It will strike most people that salmon is an expensive 

 diet for a seal, or would be on the Atlantic coast, even if 

 it only consumed 41 bs. per day, a fair allowance for a 

 "baby." No doubt the seals, which are protected in San 

 Francisco harbor, are most expensive luxuries, kept for 

 people to look at. The salmon which they destroy are 

 not seen. 



Maine Trout. — A correspondent of a Maine paper 

 says: "The fishing at the Upper and Middle Dams has 

 been exceptionally good. Freeland Howe of Norway 

 broke his former record and landed an eight pound 

 trout within twenty minutes after arriving at the Upper 

 Dam last Thursday. Thi3 was the first big fish caught. 

 P. W. JudMns has caught several good ones. His big- 

 gest one weighed over 51bs., two more weighed 3 and 

 libs. The best fishing seems to be at the Narrows and 

 at the head of the lake. C. G. Hasbrook, Cleveland, 

 caught one weighing 81 and another 7pbs; W. P. Clark, 

 Peabody, Mass., S^lbs. The Kings caught three that 

 weighed lSlb*. C. H. Lane of West Paris took one that 

 weighed iilhs. David Hague of Meridan, Ct., has 

 caught an eight pounder; Chas. D. Chase of Northum- 

 berland, N. H., caught a 5ilbs. trout and one or two other 

 good ones; E. W. Curtis of Meridan, Ct., took six trout 

 in a pool back of the Middle Dam, the heaviest was G.]r 

 and the lightest 5£lbs. This undoubtedly is the best 

 catch for the length of time consumed of any. "Viator" 

 Avritcs to us: "The following trout were taken at the 

 Middle Dam on May 35 and 26, besides numerous smaller 

 ones: One of 61bs", one of 5flbs., two of 4|lbs. each, 

 one of 4ilbs., one of 6,}lbs. The Middle Dam has al- 

 ways been one of the best fishing locations in the entire 

 Androscoggin Lakes Region, and we think this is a good 

 record for the opening of the season." 



Striped Bass.— Ocean Beach, N. J., June 8.— The day 

 before yesterday while fishing in the surf with rod and 

 reel 1 landed a striped bass weighing 211bs. He measured 

 3ft. in length and 9in. in diameter and was as fat as a 

 British alderman. In endeavoring to find a good reason 

 for the increased numbers of striped bass along the coast 

 this year I sometimes think that as the bluefish kept off 

 shore more than usual last year this fact might be looked 

 upon as one of the causes. — Big Reel. 



A New Trolling Bait. — A novel trolling bait has 

 been invented by Mr. Wm. F. Brewster, of East Orange, 

 N. J. It is very compact and ia designed especially to do 

 away with the annoyance so common in trolling, the 

 catching of grass and weeds on the hooks. This trouble 

 is avoided in the new bait by having the hooks lie within 

 the body of the fictitious minnow until they are released 

 by the bait^being seized by a fish. When this takes place 

 the hooks i-pring into place and become available. The 

 last model made by Mr. Brewster is Siin. long and about 

 fin. thick. A practical trial of this model was made by 

 Mr. Brewster a short time ago at Lake Hopatcong, New 

 Jersey. The greater part of the time was devoted to 

 using the bait among weeds and lily pads, and in no case 

 did it catch or make any trouble. On the way home the 

 bait was thrown over for fishing, and the line intrusted 

 to Mr. Brewster's 10-year-old son. In a few movents a 

 very lively pickerel was hooked, and before long safely 

 landed. The new bait appears to be perfectly weed-proof 

 and entirely effective. 



Fish Poles. — We are sometimes asked where a good 

 fish pole can be bought, and if it occurs in the course of 

 a private conversation and we are familiar enough with 

 the questioner to warrant it, we refer him to any of the 

 shad fishermen who drive down entire trees to string 

 their gill nets on, in the Hudson River. Then, as the 

 talk goes on we suddenly learn that it is a rod that is 

 needed. Th re are poles and rods, but, an angler who 

 owns a fine piece of workmanship, made by his favorite 

 maker, every inch of which has its true taper and bears 

 its own proportion of the strain and contributes to the 

 elasticity of the whole, feels his heart sink when an 

 acquaintance picks it upland says: "That's a good pole!" 

 A pole, forsooth! as if it might be used for supporting a 

 clothes line when not in other service. If you speak of 

 his flee breechloader as a "musket" he will not be more 

 hurt, so please spare him when you have occasion to men- 

 tion the excellence of his rod. 



Tom-alley.— A correspondent wants to know where 

 the name "tom-alley," as applied to the green fat of the 

 lobster, comes from, and says that he has heard the same 

 term applied to the "coral," or immature eggs. Webster 

 gives the word as spelled above and says that it is some- 

 times called "tomaline," and that it is the liver of the 

 lobster, whioh turns green when boiled, but says nothing 

 of the deiivation of the word. Who oan tell what tom- 

 ailey, or, as we have seen it spelled, tomally, is derived 

 from? We never heard it applied to the coral. 



A TEST NET CASE. 



Editor Forest and Stream: 



The Fish and Game Association of Southern Jefferson 

 County applied in 1887 to the State Fish Commission, 

 under Chap, 317, Laws of 188S, for the services of a game 

 protector to protect the waters of Black River Bay from 

 depredations of illegal netters; the bay having been in- 

 cluded in Chap. 141, Laws of 18S0, as waters in which all 

 netting was prohibited. In response to the request, Wm. 

 N. Steele, of Clayton, one of the regularly appointed 

 State game protectors, was dispatched to the locality and 

 made certain seizures (destroying the nets seized), for 

 which subsequently suit was brought against him for the 

 value of nets destroyed. The County Association, having 

 a deep interest in the matter, and acting as sponsors for 

 Mr. Steele, have defended this suit, and have further de- 

 cided to assist in taking an appeal from Judge Williams's 

 decision, which holds the law, or all laws, directing the 

 summary seizure of nets unconstitutional. The Associa- 

 tion feel, however, that the question is one in which all 

 game protective associations and all sportsmen have an 

 equal interest, and t hat it is of vital importance, not to 

 one alone, but to all. 



Gen. R. U. Sherman has written on the subject to the 

 president of the Jefferson County Association: "The 

 Board of Commissioners have no funds in their control 

 applicable to pay the expense of such a proceeding, but 

 the various anglers' associations of our large rivers and 

 interior lakes who have such a great stake in the premises 

 should promptly take the case in hand and raise a con- 

 tribution from their resources sufficient to pay for the 

 most competent counsel to study the authorities and argue 

 the case before the higher courts." 



While this local association is unwilling to go far to 

 solicit the favor of others, they believe that voluntary 

 action in this direction would be only a just assumption 

 of a commou burden, and that failure so to act would be 

 an abandonment of the common interest by other associ- 

 ations. 



It may be well to add that, the law being held uncon- 

 stitutional, it is no protection to the officer who executes 

 it. Mr. Steele has been sued and a judgment recovered 

 against him, not as a public officer, but as a private indi- 

 vidual and a trespasser and wrong-doer. All the pro- 

 visions of law, therefore, in relation to payment of ex- 

 penses and for the protection of the officer, fail in the 

 case, and throw the burden upon him personally or upon 

 those that step in as interested parties in reversing the 

 decision and upholding our protective laws. 



If Fish Commissioner Sherman's recommendation meets 

 the approval of other associations or individuals, and 

 they desire to assi-t in vindicating the fish laws, they can 

 communicate to that end to the president of the Associ- 

 ation at Watertown, N. Y. 



E. L. Sargent, President. 

 Elon R. Brown, Attorney. 

 J. Q. Adams, Secretary. 



THE FISH NET OPINION. 

 George W. Lawton and another, ) 



vs. y Opinion (9-66). 



William N. Sishgeb! and otheus. ) 



Jefferson Circuit. Tried April 16, 1888. Decided May 22, 1888. 



Action to recover damages for the conversion of fishmpf nets. 



Tried before a jury, verdicts ordered subject to the opinion of 

 the Court, for plaintiff against defendant Steele for $216, and in 

 favor of defendants Sargent and Sherman. The case is nowto be 

 disposed of pursuant to Sec. 1,185. Code Civil Procedure. 



The facts are undisputed. The nets were the property of 

 plaintiffs and were taken away by defendant Steele and destroyed. 

 They were worth $318. At the time of the taking most of the nets 

 were in tne waters of Black River Bay, being used for fishing pur- 

 poses, and the balance were on the shore of that bay, having 

 recently been used for same purposes The plaintiffs were fisher- 

 men. The defendant, Steele, was a State game and fish protector. 

 The taking and destruction of the nets is claimed to iiave been 

 iusti liable under the statures of the State relating to the protec- 

 tion of game and fish. The plaintiffs claim there was no justifica- 

 tion under the statutes, and that the statutes, if in form they con- 

 stitute such justification, were unconstitutional. The defendant 

 Sherman, was a State fish commissioner, and the defendant, Sar- 

 gent, was president nf the Jefferson County Fish and Game Asso- 

 ciation, and plaintiffs claim these defendants are liable ou the 

 ground t hey instigated, incited or directed the taking and destruc- 



1 °&. G. Emerson for plaintiff, E. R. Brown for defendant. 

 Williams, J. , . , 



1 held upon the trial there was no evidence upon which the 

 jury would be justified in rendering any verdict against the de- 

 fendants, Sargent and Sherman, on the ground they neither in- 

 stiga ed nor directed the taking of the nets. There certainly was 

 no e\ idence to charge Sherman; and as to Sargent, I still adhere to 

 my opinion expressed at the trial. He only requested that defend- 

 ant Sti ele, as game and fish protector, to enforce any law that 

 evicted to protect the fish in Black River Bay. He did not assume 

 to direct as to what the law was, and it he is to be believed he 

 told defendant Steele he did not think he had the right to take 

 or destroy the nets. He did not, iti my view of the evidence, by 

 writiug the letter or ha vine the interview he had with defendant 

 Steele, render himself liable lor the taking and destruction of the 

 nets, if such taking and destruction Was unauthorized and unjus- 

 tifiable. If I was wrong at the trial in takiug the question of fact 

 from the jury 1 cannot well correct that error now, because Sec.1185 

 onlv relates to a case where there Hie no questions of fact. 1 could 

 not certamiv order judgment against the defe-.daut Sargent now. 

 If I was wrong as to this defendant I should have submitted the 

 question of fact to the jury. My refusal to do so can only only be 

 reviewed on appeal from the judgment as 10 these two defendants, 

 therefore the verdict ordered will not be disturbed, but judgment 

 thereon will be ordered. 



The questions to be here considered and determined relate to 

 the verdict ordered for plaintiffs against tUo defendant Steele. 

 Defendant Steele moves to set aside that verdict and that judg- 

 ment be directed for him against the plaintiffs; and this motion is 

 opposed by plaintiffs. In order to correctly determine this motion 

 it will be noctssar.s to decide whether the taking and destruction 

 of the nets was authorized and justifiable under the Statutes of 

 the State. The defendant Steele claims to have acted in taking 

 and destroying these nets, and to have been justified in so doing, 

 under Chan. 591, Luws 1880, and Chap. 317, Laws 1883, and Chap. 



^provided substantially by Sec. 1 of the act of 1880, that it 

 is the duty of a State game and fish protector to enforce the 

 statutes (or the preservation of fish or any other game law; and 

 by Sec, 3 of same acts, that any net or other means devised for 

 taking or capturiug fish, or whereby they may be taken or cap- 

 tured, set, put, n< ated, had, found or maintained in or upon any 

 of the waters of this State, or upon the shores of, or islands in any 

 such waters, ia Violation of any esistlug or hereafter enacted 

 statutes or laws for the protection of fish, is hereby declared to be 

 and is a public nuisance, and may be abated or summarily de- 

 stroyed bv any person; and it shall be the duty of any game and 

 fish protector to seize and removeand forthwith destroy the same, 

 etc., etc., and no action for damages shall lie or be maintained 



against any person for or on account of any such seizure or de- 

 struction. 



It is provided by Sec. I of the act of 1880 substantially, that, no 

 person shall at any time kill or take from the waters of Hender- 

 son Bay or Lake Ontario, within One mile from the shore, between 

 the most westerly point of Pillar Point and the boundary line be- 

 tween the counties of Jefferson and Oswego, or within a mile from 

 the shore of any island in Lake Ontario, which is a part of Jeffer- 

 son county, any fish of any kind by any device or means whatever, 

 otherwise than by hook and line or rod held in the hand; and by 

 Sec. 2. same act, that any person violating any of the provis- 

 ions of this act shall be guilty of a misdemeanor, and liable to a 

 penalty of $50 for each o (Tense. In order to determine whether 

 defendant Steele was authorized by the acts of 1830 and 1883 to 

 take and destroy these nets, it is necessary to inquire whether the 

 nets were set, put, floated, had, found or maintained in or upon 

 any water of this State, or upon the shore of any such waters, 

 In violation of the act of 1886. The nets were concededly in 

 the waters and upon the shore of Black River Bay, and were 

 there in the water within a mile from the shore. Others on 

 the shore had been used withiu a mile from the shore in the 



then the authority of the defendant Steele to take and destroy 

 the nets, so far as the statutes could authorize it, would seem to 

 be established. Black River Bay is a bay of Lake Ontario; it ex- 

 tends from the mouth of Black River to the lake. It is bonnded 

 upon the one side by Pillar Point, so called iu the town of Browu- 

 ville, and on the other side by the town of Hourmfieldand Sacket's 

 Harbor, which is in the latter 1 own. The harbor of the lake known 

 as Sac kef a Harbor is upon the shore of this bay. Directly adjoin- 

 ing Black River Bay ou the south, and wit h no lake between them, 

 is Henderson Bay, upon the shore of which lies a portion of the 

 town of Henderson and the town of Hounsfield, and in which 

 latter bay is the narbor of the lake, known as Henderson Harbor. 

 Henderson Bay is much wider than Blaek River Bay and oth< r 

 smaller bays between Pillar Point and tne line between Jefferson 

 and Oswego counties, and some points in Henderson Bay can evi- 

 dently be selected which would be more than a mile from the 

 shore of the bay or of Lake Ontario. The plaintiffs claim the act 

 of 1880 docs not cover or include Black River Bav and the other 

 bays along the lake between Pillar Point and the Oswego county 

 line, except Henderson Bay, because the latter bay alone is named 

 m the act, the language being: "the waters of Henderson Bay or 

 Lake Ontario within one mile frooi the shore," between the points 

 named. The argument is thai, while "Lake Ontario," if those 

 words alone were used, might naturally include all bays that are 

 navigable waters, when ono bay is named by words in tne act, 

 that shows the legislative intent to exclude all other bays from 

 the act. There would nowhere be any good reason for such an 

 intent ou the part of the Legislature, and therefore we naturally 

 louk to see if the language of the act is susceptible of anv other 

 reasonable construction. The naming of Henderson Bay in the 

 act must be presumed to have been done for some prroose. And 

 if there was no other reason we might be compelko to adopt the 

 construction contended for by the plaintiffs; upon tne theory 

 that the Legislature intended in the term "Lake Ontario" to in- 

 olude all bays that ore navigable waters. Are the words Hender- 

 sou Bay useless and unnecessary? It seems to me not. If Hen- 

 derson Bay was not named in the act but it read merely, "Tne 

 waters of Lake Ontario within one mile from the shore" there 

 would still remain some parts of Henderson Bay that would be 

 more than a mile from the shore, and in whioh fishing v ith nets 

 would still be allowed. This would not be true of any other bay 

 between the points designated in the act. I am led to believe 

 therefore, the reason this bay was specifically named in the act, 

 was that the Legislature intended and desired to cover the whole 

 of Henderson Bay by the act, which could not be done by the 

 other language used in the act, without expressly naming the 

 bay. Unless this be true, why was Pillar Point fixed as one of 

 the points between which the shores of ihe lake were bounded? 

 Why not say, "the waters of Henderson Bay and of Lake Ontario 

 between the line between the counties of Jefferson and Oswe- 

 go?" There was no lake shore north of Henderson Bay toward 

 Pillar Point except. Black River Bay. It is possible the Legisla- 

 ture in passing the act in question may have had no particular 

 intent at aU. That form of the act may have been the result of 

 carelessness in drafting, or of amendments made while the bill 

 was before the Legislature, the outgrowth of severe opposition 

 and feeling weU understood to have existed between the sports- 

 men and the fishermen so called. We are compeUed, however, 

 to consider what was the legislative intent as indicated by the 

 language used; and it seems to me such intent must have been as 

 I have indicated. In this construction I read the words "within 

 one mile of the shore" as applying alone to the words Lake On- 

 tario; so as to prohibit the fishing in the whole of Henderson 

 Bay and of Lake Ontario within a mile from the shore only. 



it is suggested by plaintiffs' counsel that the act of 1888 does not 

 prohibit the using of nets in the water or on the shore for the pur- 

 pose of taking risn In the designated waters, but merely prohibits 

 ihe taking of the fish: and therefore the nets were not then in 

 violation of the law. If it was a violation of law to take the fish 

 in those waters with nets, was a misdemeanor, then attempting 

 to take the fish with uets and having the nets there for such pur- 

 pose is a crime (Penal Code, Sec. 34 and 686), and therefore i>-e 

 nets would be there in violation of law, or of the statute. My 

 conclusion, therefore, is that under the proofs of the case, and the 

 statutes in question, the defendant Steele was authorized and 

 justified in taking and destroying the nets, provided the statutes 

 were constitutional. . .. . , . , > 



While the trial court should not in my judgment readily hold 

 an act of the State unconstitutional, question the power of the 

 Legislature to pass the act, but leave that dutv to be performed 

 by ihe appellate courts; yet the plaintiff's counsel is so persistent 

 in his argument against the validity of these statutes, and the 

 case is likely to be determined soouer or later upon the sole 

 ground of the validity of the statutes under the State ana federal 

 constitutions, that I ought very likely to give some attention to 

 this question, and endeavor t > make such a disposition of the 

 case as will well be appro\ed and sustained by the appellate 

 courts, to Which the case is likely to be carried. 



First, as - " to the act of 1880, prohibiting the taking of fish with 

 nets in certain waters, and making such taking a misdemeanor, 

 it is said the Legislature had no power to pass this act, because 

 fishing with nets was a lawful, industrial pursuit which the citi- 

 zen had a right to follow, and which ho could not rightfully be 

 prohibited trom following; and the act, therefore, was an uncon- 

 stitutional interference with the liberty and privileges of the 

 citizen. The osgfep principally relied upon by plaintiff to sustain 

 this proposition are: , niiwvra 



Matter upp.iea. ion Jacobs, 98 N. \. 9b. 



Tne People vs. Marx, 99 N. Y. 377. 



The People vs. Arensburg, 108 N. Y. 123. 



The People vs. West, 100 N. Y. 293. 



The People vs. Kibler, 100 N. Y. 321. 



And the cases therein referred to and considered. It is weU to 

 unacrstand just what these cases are and what they decide. 



The Jacobs case involved the constitutionality of "an act (Chap. 

 272, Laws 1884) to improve the public health, by prohibiting the 

 manufacture of cigars and preparation in any form in tenement 

 houses, in certain cases, and regulating the use of tenement houses 

 i n certain eases," and it was held that while generally itis lor the 

 Legislature to determine what laws are required to protect and 

 seourethe public health, cemfort and safety, yet under the guise 

 of public regulation it may not arbitrarily infringe upon personal 

 or property rights, and its determination as to what is a proper 

 exercise of authority is not final or conclusive, but is subject to 

 the scrutiny of the Courts; and when it passes an act ostensibly 

 for the public health, but which does not relate to, and is inap- 

 propriate for the purpose, and which destroys the property and 

 fate "feres with tne rights of the citizen, it is within the province 

 of the Court to determine this fact, and to declare the act viola- 

 tive of the constitutional guarantees of those r gtts; and The act 

 in question was held unconstituti' nal because it did not relate to, 

 or protect or secure the public health, w« inappropriate for that 

 purpose, and it did interfere with the rights of the citizen, by pro- 

 hibiting ihe carrying on of a legitimate business, which in no 

 manner interfered" with the health, comfort, safety or welfare of 

 society. The prohibition applied only to the cities of New York 

 and Brooklyn, and yet if the business affec ed the public health it 

 would have done so in other cities of the State as well. The act 

 not onlv interfered with the business to be carried on relating to 

 cigar.- and tobacco, but also to the leasing of tenement houses 

 and the profitable use theieof to the lessor us well as the lessee. 

 The act was really designed to protect some manufacturers of 

 cigars against the cheaper manufacture thereof, which is not 

 wlthm the province of the Legislature. 



The Marx case involved the constitutionality of "Sec. of an 

 act (Char. 202, Laws 1881) to prevent deception in the sale of dairy 

 products." And it was held the section which prohibited the 

 manufacture or sale as an article of food of any article designed 

 to take the place of butter or cheese, produced from pure, un- 

 adulterated milk or cream, from any oleaginous substance or 

 compound of the. same, other than that produced from such un- 

 adufturated milk or cream, was unconstitutional, because it pro- 

 hibited its manufacture and sale of a substitute for butter or 



