416 



FOREST AND STREAM. 



[Jttne 14, 1888. 



cheese, however wholesome, valuable or cheap, and however 

 openly and fairly the character of such substitute might bo owued 

 or published. In other words, that without any element in the 

 section of a design to deceive, it prohibited the manufacture 

 openly of a cheap substitute for butter and cheese. The Court 

 saw the design of the section was clearlv not to prevent, fraud and 

 deception, but to protect the dairy industry of the State against 

 the substitution of a cheaper article from cheaper materials than 

 real butter and cheese, which was not within the power of the 

 Legislature. The same principle thus underlies this case as the 

 Jacobs case. The acta both were, designed, not to protect the pub- 

 lic against any attempted injury, fraud or deceit, but to protect 

 one peculiar business or industry or branch thereof at the expense 

 and to the detriment of another. This interfered with the liberty 

 and rights of the citizen and was unconstitutional. 



The Arensburg case involved the constitutionality of Sec. 1 of 

 Ohap. 183, Laws 1885, "An act to prevent deception in the sale of 

 dairy products," and it was held the section which prohibited the 

 manufacture or sale of any oroduct not made from unadulterated 

 milk or cream, but made in imitation or semblance of dairy but- 

 ter was constitutional because it was designed to prevent fraud 

 and deception being practiced on the public. This distinction 

 (which I have suggested) was expressly made by the Court bet ween 

 the Jacobs and Marx cases and this case. 



The West case involved the constitutionality of Sec. 3 of the 

 same act considered in the Arensburg case; and it Was held the 

 section which prohibited the selling or bringing of any milk dilu- 

 ted with water or adulterated, or skimmed milk, etc., to any butter 

 or cheese manufactories to be manufactured into butter or cheese, 

 was constitutional, because it, like Sec. 7 in the Arensburg 

 case, was designed to prevent fraud and deception being practiced 

 on the public or the patrons of such factory. 



The Kibler case involved thelconstitutionality of Sec. 1 of the 

 6ame act considered in the Arensburg and West cases, and it was 

 held the section which prohibited the sale, exchange, or exposing 

 for sale or exchange of any unclean, impure, unhealthy, adulter- 

 ated or unwholesome milk, was constitutional. It was designed 

 to protect the public against deception and to preserve the public 

 health also. 



It is not difficult to understand the principle underlying thB.Be 

 cases, and the only question is whether they throw any light upon 

 the validity of the statute we are here considering. If the sole 

 object of this act is to prohibit the carrying on of an otherwise 

 legitimate business, fishing with nets in the interest and for the 

 benefit of another class of persons, the fishing with nets being in- 

 jurious to no public common right, then its validity cannot, be 

 maintained. The theory of the defendant Steele and of the pub- 

 lic he officially represents, however, is that the right of fishing in 

 the navigable waters of Lake Ontario and its bays and harbors is 

 public and common to all the citizens of the State; that fishing 

 with nets is injurious to such public and common right, in that it 

 tends to destroy the supply of fish, and that the State has the 

 power to regulate the extent and manner of fishing so as to pro- 

 tect equally the public and common right of all the citizens of 

 the State to take fish from these waters. The onlv authority in 

 this State to which my attention is called relating to this ques- 

 tion directly is the case of Smith vs. Levinus, 8 N. Y. 472. 

 This case involved tho constitutionality of "An act (Chap. 



... . 3 power 



authorized to make such laws and regulations as they .should 

 deem necessary, and provide for the enforcing of the same. To 

 provide for the protection of all kinds of shell and other fish 

 within the waters of their respective counties. The Board of 

 Supervisors of Queens county, under this act, passed an ordinance 

 that no person should take oysters from any of the public waters 

 of the county by means of the process known as dredging, under 

 the penalty of §100 for each offense. This action was brought to 



He said: "At common law a very concise definition of a public or 

 common nuisance was, that it was a public annoyance; butamore 

 extended definition was, an offense against the public:, either by 

 doing a thing which tends to the annoying of the public and com- 

 mon against all, or by neglecting to do a thing which the common 

 good requires. It was a principle of the common law that any 

 one might abate or remove a public nuisance without staying to 

 have the thing abated or removed, found to be a nuisance by a 

 jury, or in or by any preliminary legal proceedings. Of course 

 any one who undertook even in good fa i t h thus summarily to abate 

 a public nuisance of his own motion, by his own act showed that 

 he regarded and declared the thing stated to be a nuisance! But 

 he, nevertheless, took upon himself by his act the risk of being 

 able to show in a proper action by the party whose interests were 

 injuriously affected, that the thing abated was a public nuisance. 

 No one has probably ever suggested that Magna. Charta interfered 

 with the process of summarily abating a public nuisance. If the 

 abatement involved the deprivation of property, the owner was 

 deprived of his property ^by due precess of law,' if the thing 

 abated w r as a public nuisance, for there the summary process of 

 abatement, was authorized by the common law, and any process 

 authorized by law must be due process. I am not willing to con- 

 cede that the Legislature can create a public nuisance, or a new 

 definition of a public nuisance unknown to the common law de- 

 cisions, or declare an act or anything a common nuisance which 

 palpably, according to our present experience, or information, 

 is not. and cannot be under any circumstances a common nuisance, 

 by the common law definition or common law decision. By such 

 an unlimited power it is easy to see that any citizen might, be de- 

 prived of his property without compensation and without any 

 tolerable pretext the public good required such deprivation." 



This language, or some of it, was cited with approval by Judge 

 Earl in the Jacobs case, as hereinbefore referred to. In that case 

 the police power was sought to bo upheld for the promotion of the 

 public health, welfare and safety, and it was said "The police 

 power is not. without limitation, and that in its exercise must 

 respect the f undamental rights guaranteed by the Constitution. 

 If this were otherwise the power of the Legislature would be 

 practically without limitation. In the assumed exercise of the 

 police power in the interest of the health, the welfare or the safety 

 of the public, every right of the citizen might be invaded and 

 every constitutional barrier be swept away. Generally it is for the 

 Legislature to determine what, laws and regulations are needed 

 to protect the public health and secure the public comfort and 

 safety; and while its measures are calculated, intended, conven- 

 ient and appropriate to accomplish these ends, the exercise of its 

 discretion is not subject to review by the courts, but they must 

 have some rclition to these ends. Under t he guise of police regu- 

 lation personal rights and private property cannot be arbitrarily 

 invaded, and the determination of the Legislature is not final or 

 conclusive. If it passes an act ostensibly for the public health 

 and thereby destroys or takes away the property or a citizen or 

 interferes with his personal liberty, then it is for the courts to 

 scrutinize the act and see whether it really relates to and is con- 

 venient and appropriate to promote the public health.' 



for the common benefit and to promote the convenience and en- 

 joyment of all the citizens. One of the purposes for which the 

 people own the beds of such waters is to protect and reirulate 

 the rights of fishing in tuem. The Legislature mav make such 

 laws for this purpose as it deems most beneficial to the common 

 enjoyment of the right, in the same maimer that it may for the 

 public convenience authorize wharves to be erected upon navi- 

 gable waters. So it doubtless may for commercial purposes 

 authorize the filling up of a part of a bed of a stream or cove 

 which prevented a desirable fishing place. All t hese powers are 

 within the scope of legislation." 



In State against Roberts, 59 N. Y. 250, (Sec.) 47, American R. 199, 

 which was an indictment for taking fish from navigable waters 

 out of the season prescribed by statute, it was said by the Court, 

 "At common law the right of fishing in navigable" waters was 

 common to all. The taking and selling of certain kinds of fish 

 and game at certain seasons of the year tend to the destruction of 

 the privileges or right by the destruction consequent upon the 

 unrestrained exercise of the right. Thisisregardcdasinjuriousto 

 the community, and therefore it is within the authority of the 

 Legislature to impose restriction and limitation upon the time 

 and manner of taking fish and game considered valuable as 

 articles of food or merchandise. For this purpose fish and game 

 laws are enacted. The power to enact such laws has long been 

 exercised and so beneficially for the public that it ought not now 

 to be called in question." 



In Smith vs. State Maryland, 18 How. U. S. 71 the validity of au 

 act of the Legislature of the State of Maryland was involved. It 

 was "An act to prevent the destruction of oysters in the waters 

 of the State," and provided it should be unlawful to take or 

 catch oysters in any of the waters of the State, with a scoop or 

 drag or any other instrument than with such tongs and rakes as 

 were then in use and authorized by law; and forbidding all per- 

 sons to use such instruments on pain of forfeiting to the State 

 the boat or vessel employed for the purpose, etc. The Supreme 

 Court of the United States held there was the public and 

 common right of taking fish in Chesapeake Bay, as well shell fish 

 as floating fish, and the State had a right to protect this fishing 

 by making it unlawful to take or catch oysters With a scoop or rtra > a, 

 and to inflict the penalty of forfeiture upon the vessel employed 

 in the pursuit and that the law was constitutional. It may be 

 said perhaps of this case, that the ground urged why the law 

 under consideration is invalid, was not among those urged in that 

 case, that it interfered with the liberty of the citizen tho right 

 to carry on an otherwise legitimate business. It was said by the 

 Court in that case that the State might forbid all such acts as 

 would render the public right of fishing less valuable or destroy 

 it altogether; and that the power resulted from the ownership of 

 the soil under the water, from the legislative jurisdiction of 

 the State over it, and from its duty to preserve unimpaired 

 those public uses for which the soil was held- that the power had 

 been exorcised in many of the States; that the act in ques- 

 tion had for its avowed and real object to prevent the destruc- 

 tion of oysters within the State, by the use of particular in- 

 struments in taking them; that it did not touch the subject of 

 the common liberty of taking oysters, except for the purpose 

 of guarding it from injury, to whomsoever it might belong, and 

 by whomsoever it might be enjoyed; that the law might be cor- 

 rectly said to be not in conflict with, but in furtherance of 

 any and all public rights of taking oysters whatever they might 

 be. I entertain no doubts, after an examination and considera- 

 tion of these authorities, but that the act of 188(1 in question, was 

 within the power of the Legislature to enact and violate no con- 

 stitutional provision. Its object was not to prohibit fishing, but 

 to prescribe the manner in which it might be done and to prohibit 

 its being done by nets. The avowed object in the passage of the 

 act was to preserve the fish, and prevent the injury or the 

 destruction of the fishing in the waters covered by the act. 

 Whether the act was more severe than necessary to accomplish 

 the object sought, it was the province of the Legislature itself to 

 determine; and the court has, I think, no power to declare the 

 act invalid because it thinks a less rigid law would have answered 

 the purpose sought to be accomplished. 



As to the acts of 1883, providing nets illegally used were a public 

 nuisance, and might be abated and summarily destroyed, and it 

 should be the duty of any game and fish protector to seize, remove, 

 and forthwith destroy the same, and that no action for damages 

 should lie or be maintained therefor; it is said the Legislature had 

 no power to pass these acts, because they authorize one person to 

 deprivo another of his property without due process of law. The 

 statute would seem to be objectionable upon the ground stated, 

 unless it can be upheld under the police power, for it does not 

 provide for the summary destruction of the nets, and therefore 

 the taking of the property from the owner of the nets without due 

 process of law. Tue statute expressly provides and declares the 

 nets to be public nuisances, and therefore authorizes and directs 

 their destruction; and the only question is whether there was 

 power in the Legislature to declare them public nuisances. LTnless 

 this power existed the Legislature could not direct their 

 destruction summarily and without any legal proceeding-, in 

 which the owners of the nets should have a chance to be heard i 

 and should have their day in court. 



In Coo vs. Siiults, 47 Barb. 04, flic principles of the law appli- | 

 cable to the subject of public nuisances, and the abatement 

 thereof, was considered by Judge Sutherland at Special Term. I 



In matter of petition of Ohccscbrough, 78 N. Y. 232, the subject 

 of the police power was discussed in considering the drainage act, 

 and it was said! "The police power possessed by the State and 

 conforred upon municipal corporations is very broad and far- 

 reaching, and it is impossible to place upon it any precise limita- 

 tions. By its exercise in many cases rights of property and of 

 person may be interfered with and largely impaired, without any 

 compensation. jN uisanees may be abated by private persons with- 

 out, any liability to damages, and by the public without making 

 any compensation, because no one has the legal right to maintain 

 a public nuisance. In cases of actual necessity, as that of pre- 

 venting the spread of Are, the ravages of pestilence, the advance 

 of a hostile army, or any other great calamity, the private prop- 

 erty of any individual may be lawfully taken, used, or destroyed 

 for the general good without subjecting the actors to personal 

 responsibility. In such cases the rights of private property must 

 be made subservient to the public welfare; and it is the imminent 

 danger and the actual necessity which furnishes the justiUcation. 

 If. is under the police power that municipal corporations make 

 ordinances to preserve health, prevent fires, regulate the use and 

 storing of dangerous articles, establish and control markets, regu- 

 late the burial of the dead, and the like; and this police power 

 may generally be exercised without making compensation for 

 property and rights interfered with." 



1 am unable to see, under the principles I have quoted, how the 

 act in question can be upheld under the so-called "police power" 

 of the State. 



It will not do to say the Legislature has the power arbitrarily 

 to declare property a "public nuisance" and authorize its sum- 

 mary seizure and destruction. Such a doctrine would permit the 

 Legislature to violate every private right of properly, and the 

 enjoyment thereof guaranteed by the constitution. Nor do I think 

 the mere fact the property is used in the commission of crime 

 entitles the Legislature to declare it a "public nuisance," and 

 authorize its summary destruction. The Legislature cannot 

 declare I hat property to be a public nuisance which is clearly not 

 such, and for the immediate destruction of which there is no 

 necessity whatever. Fishing nets are not and cannot be con- 

 sidered in and of themselves ".public nuisances." It is only the 

 illegal use made of them that disturbs the public or interferes 

 with its rights. There can be no immediate necessity of requir- 

 ing these nets, even if they are being illegally used, to be 

 summarily destroyed. The Legislature might just as safely 

 to the public have provided further seizure and detention 

 until it should be judicially determined they were being used 

 in violation of the law, and should he ordered destroyed 

 before its destruction should take place, as to make this 

 provision for summary destruction. 'Pais would not be true 

 of property which the public health required to be destroyed, 

 or the public safety from fire or pestilence or some other things, 

 clearly within the "police power" of the State. I am clearly ot 

 the opinion the Legislature exceeded its powers under the con- 

 stitution in these provisions of thelacts in question, anil in these 

 respects the acts are invalid. This conclusion leads to the deter- 

 mination of the. present application adversely to the defendant 

 Steele. These acts being iuvalid afforded him no protection for 

 the taking and destruction of the nets. The taking and destruc- 

 tion were therefore illegal; and the defendant Steele is liable in 

 this action to plaintiff for the value thereof. The verdict ordered 

 against him at the trial will not therefore be disturbed, but judg- 

 ment will be ordered fchdreou. 



Counsel will agree upon the form of order in accordance with 

 the views expressed in this opiniou, and same will be presented to 

 me for siguature. Ten dollars costs of motion allowed to prevail- 

 ing parties; that is to such as are entitled to have costs against 

 the others, 



MENHADEN IN RARITAN BAY. 



THE Governor of New York has signed the bill entitled 

 "An act for the better protection of fish in the waters 

 of Richmond county," and we learn from excellent authority 

 that the Governor of New Jersey has signed two bills of a 

 similar nature. We have already published the New Y ork 

 bill, which forbids the use of any purse net, pound, weir, or 

 other device, except fykes and hook and line, for the capture 

 of any fish in the waters of Raritan Bay, Within the juris- 

 diction of the State, under certain penalties. 



The question was argued at length before the legislative 

 committee by both sides. It was shown that the waters are 

 only from 5 to 17>i feet, three channels excepted, all over 

 the bay, and that many of the menhaden nets are sixty feet 

 deep and rake the bottom, unavoidably taking up oysters. 

 Witnesses before the committee testified to seemg lobsters, 

 clams, conch shells, and bits of iron in the nets, and that the 

 damage to the fisheries of the bay by these nets was exceed- 

 ingly great. All the inhabitants of the south shore of Staten 

 Island asked for the passage of this bill. Cant. Polworth 

 has a ''dead bed" of 7,000 baskets of oysters which cost to 

 seed it $8,500, and he told the committee how he knew that 

 the oysters were destroyed by the nets, and not by the drum- 

 fish. 



The menhaden men are reported to have acknowledged to 

 thirty car loads of weakfish at factory dump, on Long 

 Island. The regular menhaden boats are followed by tramp 

 boats, out for a cargo, the owners of which conceal the names 

 of their boats by strips of canvas, or a board, with some 

 alias chalked or painted on it, which is changed as occasion 

 requires, thus showing a desire to escape responsibility for 

 any damage done. 



The large nets have unavoidably removed the oyster stakes 



which mark the lines of ownership, for when the net is full 

 the stakes have to give way when it is pulled through the 

 water. As Raritan Bay is but a small spot, compared with 

 the menhaden grounds of the Atlantic coast, and, as it is a 

 favorite place of resort for many valuable food fishes, and 

 the anglers of New York city and vicinity, it would have 

 been wise in the menhaden fishers to have conceded this 

 spot to the hook and line men, but they preferred to fight it. 

 Capt. Hawkins, State Senator from Long Island, and an 

 owner in menhaden steamers and factories, denounced the 

 bill as "infamous," because it saved one little bit of water 

 from the all-scooping purse nets. As Capt. Church has re- 

 cently described square miles of menhaden off other parts of 

 the coast, it would seem that the menhaden interests cannot 

 suffer much from the protection of Raritan Bay. 



LOBSTERS FOB. THE PACIFIC COAST.— The lobster 

 hatching at Wood's Holl has been successful this season and 

 £ car load will be sent to the Pacific about the middle of the 

 month. Young lobsters have never been transported such a 

 distance and it is not certain that they will endure the trip 

 although the experiments made with them seem to prove 

 that they will go through. 



THE FISHERIES EXHIBIT AT CINCINNATI.— The 

 U. S. Fish Commission will make a display at the Cincinnati 

 Exposition, beginning July 4. A pump of a capacity of 200 

 gallons per minute will force water up over rock work and 

 make a picturesque water fall. Aquaria, and apparatus of 

 the fisheries and fishculttire will be displayed. Capt. J. W, 

 Collins will be in charge. 



THE AMERICAN FISHERIES SOCIETY.— At a meet, 

 ing of the publication committee, held at Mr. Blackford's, 

 June 1, it was decided to have the papers printed and ready 

 for mailing by August 1, 



F I XT U R E S. 



DOG SHOWS. 



Sept. 11 to id.— First Dog Show of the Buffalo International Fair 

 Association, at Buffalo, N. Y. C. W. Robinson, Secretary. 



Sept. 21 to 27.— Fifth Dog Show at London, Ont. C.A.Stone, 

 Superintendent. 



Oct. 9 to 12.— First Dog Show of the Virginia Field Sports Asso- 

 ciation, at Richmond, Va. B. II. Grundy, Secretary, Room 26, 

 Shafcr Building. Entries close Oct. 1. 



Feb. 18 to 22, 1889. --Thirteenth Annual Show of the Westminster 

 Kennel Club, New York. James Mortimer, Superintendent. 



Feb. 211 to March 1, lSsfl.— Second Animal Show of the Renssalaer 

 Kennel Club, Troy, N. Y. Alba M. Ide. Secretary. 



March f> to 8, 183v». — Second Annual Bog Show of the Albany 

 Kennel Club, at Albany, N. Y. Geo. B. Gallup, Secretary. 



FIELD TRIALS. 



Sept. 11.— Third Annual Field Trials of the Manitoba Field 

 Trials Club. Derby entries close. July 1. All-Aged en tries Aug. 1. 

 Thoe. Johnson, Secretary, Winnipeg, Manitoba. 



Nov. 1.— Second Annual Field Trials of the Indiana Kennel 

 Club, at Bicknell, Ind. P. T. Madison. Secretary, Indianapolis, 

 Ind. 



Nov. 19.— Tenth Annual Field Trials of the Eastern Field Trials 

 Club, at High Point, N. C. (Members' Stake, Nov. 15.) W. A, 

 Coster, Secretary, Saratoga Springs, N. Y. 



Dec. 3.— First Annual Field Trials of the Southern Field Trial 

 Club, at Aciory, Miss. T. M. Brumby, Secretary, Chattanooga, 

 Tenn. 



Dec 10.— Sect i ud Annual Field Trials of the American Field 

 Trials Club, at West Point, Miss. C. W. Paris, Secretary, Cincin- 

 nati, O. 



A. K. R.-SPECIAL NOTICE. 

 T^HE AMERICAN KENNEL REGISTER, for the registration 

 of pedigrees, etc. (with prize lists of all shows and trials), is 

 puhbshed every month. Entries close on the 1st. Should be in 

 early. Entry blanks sent on receipt of stamped and addressed 

 envelope. Registration fee (50 cents) must accompany each entry. 

 No entries inserted unless paid in advance. Yearly subscription 

 81.50. Address "American Kennel Register," P. O. Box 3832, New 

 Y ork. Number of entries already printed 6291. 



FIRST IMPRESSIONS. 



EVERY dog breeder knows how embarrassing it is when 

 showing one of his pets to a non-fancier friend to find 

 how little the good points of the animal are appreciated. 

 His friend sees in the distinguished canine simply a dog and 

 probably to him not a very preposessing one at that. Then 

 it is exceedingly annoying to have it made plain by the 

 friend's ill-suppressed yawns that the eulogy on the canine's 

 superior points is anything but interesting; anduotatall 

 flattering to notice by the quizzing looks that he considers 

 you slightly cracked on the dog question. 



Still if the most of us will look back we will find that at 

 one time we also cared as little for dogs as our unapprecia- 

 tive friends do now. 



As for myself I always had a liking for dogs in general 

 but it has not been so very long ago that I thought bull- 

 terriers had short faces, wore brindle patches over the eye 

 and were kept only by disreputable parties in red shirts. 

 Then I was actually verdant enough to suppose that collies 

 were used to drive cattle and sheep; that beagles were in- 

 tended to chase rabbits, and pointers and setters hunted 

 quail and other feathered game. Of course I know better 

 now, and that winning a prize at bench shows is the prime 

 reason for breeding, except the other prime reason of selling 

 them for a big price. 



The first wire-haired fox-terrier I ever saw was to me an 

 exact fac-simile of a dog that accompanied a colored indi- 

 vidual who twice a week emptied the contents of a slop 

 barrel kept in the rear of my back yard. So forcibly was I 

 impressed with this fact that the next time the man made 



! you have: 



"Yas, sar, he's a right smart 'ud; I brung 'ton up from a 

 little pup." 



"You did!" I exclaimed in astonishment, "why he looks 

 like a remarkably fine one; how is he bred? ' 



"Oh, he's breeded all right," answered the darky with a 

 grin, "his mudder was a black-in-tan terrier, an' a mighty 

 good un she war." 



"And his father?" I queried. 



"Wall, to tell de truff, sar, I 'spects he war about all de 

 dogs in de nayborhood." 



1 had no more questions to ask, so I went into the house 

 to ponder over this problem: Was the origin of the modern 

 wire-haired fox-terrier a black and tan bitch mated with a 

 multiplicity of sires? When I saw an Irish terrier for the 

 first time he struck me as bearing a suspicious resemblance 

 to the proverbial "yaller dorg," somewhat darker in color it 

 is true, and much shorter in tail, but very forcibly remind- 

 ing me of that legendary animal. 



Before I saw one I always imagined the St. Bernard to be 

 as large as a lion and strong as a bull. The picture in my 

 youthful geography had made these impressions. Wlen a 

 dog that I supposed to be an overgrown setter was pointed 

 out as one of tne celebrated Alpine breed, my cherished im- 

 aginative structures went clattering to the ground. Many 

 a time had 1 in my early boyhood on a winter's night when- 



