March 6", 1881.] 



FOREST AND STREAM. 



127 



Inate againat tbe citiiiens and products of other States In a matter 

 of commerce, and do not prevent game being brought into and 

 throntrh tbe States. 



In Gibbons vs. Ogden (9 Wheat. 203) the U. S. Supreme Court in re- 

 lation to tbe police powers in States: "Tbey form a portion of that 

 immense mass of legislation whicli controls everytbiTie: within the 

 territory of a State not surrendered to the general Governmeut, 

 all which can be most advantageously controlled by the States 

 themsi-lvcs," "Insppction laws, quarantine laws, health laws, 

 laws of every description, as well as laws regulating the internal 

 commerce of a State" "No direct general power over these 

 objects is granted by Congress, and consequently ibey remain 

 subject to State legislaiion." The exclusive authnriiy of State 

 legislation is strikingly illustrated in the case City of New York 

 vs. Miln (11 Pet. 103). In that case the defendant (Miln) was 

 prosecuted for not complying with a statute of New York which 

 required of every ma ster of a vessel arriving from a foreign port 

 in that of New York city to report the names of all his passengers, 

 with certain particulars of their age, occupation, last place of 

 settlement and place of their destination. It vcas argued this was 

 an invasion of the exclusive rights of Congress to ''rGgulate com- 

 merce with foreign nations and among the several States." It 

 cannot be denied that such a statute operated at least indirectly 

 upon commercial intercourse between the citizens of the United 

 States and of foreign countries. 



But notwithstanding this the United States Supreme Court held 

 it to be an exercise of the police power properly within the con- 

 trol of the State, and unaffected by the clause of the Constitution 

 which conferred on Congress the right "to regulate commerce 

 with foreign nations and among the several States." Pomroy's 

 Constitutional Law (page says: "The Constitution does not 

 Confer upon Congress an absolute and unlimited power over com- 

 merce." "Only that with foreign nations, the several States and 

 with the Indian tribes, is placed under tbe control of the National 

 Legislature." "Transit and trafltc therefore, which are entirely 

 vnthin the boundaries of a particular State, are completely sub- 

 ject to the jurisdiction of the Legislature." 



Pomroy's Const. Law (page 311), on the police power of a State 

 to regulate commerce, says: "It has been settled by a atid more 

 recent decision of the Supreme [U. S.J Court that a iaree mass of 

 the powers of control and direction over inter-State means of 

 traffic and transportation still remains in the State Legislature 

 and is exclusively theirs, being beyond the competency of Con- 

 gress. The measures which the States may thus adopt belong to 

 their police power and are not regarded as true regulations of 

 commerce, however much they may incidentally affect the pro- 

 cesses of traffic and transportation." 



In Peik us. Chicago R. R. Co. (9i U. S. Iflt) the U. S. Supreme 

 Court decided that a State had the power to prescribe a schedule 

 of charges to be made by railroad companies, not only for trans- 

 porting persons or property within the State but also persons or 

 property taken up outside the State and brought within it, or 

 taken inside and carried without. 



In Prigg t)s. Pennsylvania (16 Peters 539) Mr. Justice Story, of 

 the U. S. Supreme Court, says, in relation to the police power of 

 a State, as follows; "Ttie police power belonging to the States in 

 virtue of their general sovereignty extends over all subjects 

 within the territorial limits of the States and has never been con- 

 ceded to the United States." 



In Leicy vs. Hardin (135 U. S. 128) Mr. Justice Gray, of the U. S. 

 Supreme Court, said; "The police power [of a State] includes all 

 measures for the protection of life, the health, the property and 

 the welfare of the inhabitants, and for the promotion of good 

 order and the public morals." 



In Sherlock vs. Ailing (93 U. S., 99) the U. S. Supreme Court said: 

 "In conferring upon Congress the regulation of commerce it was 

 never intended to cut the States off from legislation * * * though 

 the legislation might indirectly affect the commerce of the coun- 

 try." "Legislation in a variety of ways may affect commerce and 

 persons engaged in it, within the meaning of the Constitution." 

 The U. S. Supreme Court very properly said in case of State Tax 

 on Railway Gross Receipts (15 Wall. 298) that "it is not everything 

 that affects commerce that amounts to a regulation of it, within 

 the meaning of the Constitution." In Munn vs. Illinois (94 U. S. 

 U3) the U. S. Supreme Court in relation to warehouse changes and 

 police power said; "Their regulation is a thing of domt stic con- 

 cern, and, certainly, until Congress acta with reference to their 

 inter-State relations, the State may exercise all the powers of 

 government over them, even though it may indirectly operate 

 upon commerce outside its immediate jurisdiction." 



"Under these Lpolicel powers the government (State) regulates 

 the conduct of its citizens one toward another, and the manner 

 in which each shall use his own property, when such regulation 

 becomes necessary for the public good." 



Mr. Chief Justice Taney, of the U. S. Supreme Court, in the 

 License Cases (5. How. K3), said regarding the police powers of a 

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

 ment inherent in every soveroigntj% * * * that is to say, * * * 

 the power to govern men and things." 



The State of Iowa had a law which read: "Section 4,058. If any 

 person bring into this State any Texas cattle, he shall be lined not 

 exceeding one thousand dollars or imprisoned in the county jail not 

 exceeding thirty days, unless they [cattle] have wintered" at least 

 one winter north of the southern boundary of the Missouri or 

 Kansas line." 



This law was claimed to he unconstitutional, and a case was 

 carried to the U. S. Supreme Court in deciding this case, Kimmish 

 vs. Ball (129 U. S. 222), the court said: "The section in question is 

 not unconstitutional by reason of any conflict with the commer- 

 cial clause [Congress to regulate commerce among the Statee] of 

 the constitution." It would appear that when a State statute 

 which forbids tbe importation of Texas cattle, unless those cattle 

 "have wintered at hast one winter," and the statute even specify- 

 ing the limits, and the highest court of this country declares the 

 section "not unconstitutional by reason of any conflict with the 

 commercial clause of the constitution," a State ought to control 

 the transportation of game killed and shipped within its limits. 



Many other cases can he cited bearing on the point that a State 

 can legislate for the transportation of poul try within its territorial 

 bounds without coming in conflict with the power of Congress "to 

 regulate commerce." A, C. Collins. 



Habtfohd, Conn. 



The full texts of the game fish laws of all the States, 

 Territories and British Provluces are given in the BooJi of 

 the Qanie Laws. 



THE NEW YORK FISH COMMISSION. 



Editor Forest and Stream: 



Several articles have appeared ia your paper lately ad- 

 verseably criticising Article I. of the proposed new game 

 code reported by . the Commissioners. The reasons for 

 the recommendation of this article are that the present 

 laws on this subject are meager, vague, incomplete and 

 in as much need of revision as the game laws proper, and 

 they are in such intimate connection with the game laws 

 that for convenience of reference only, if there were no 

 other reasons, they should be included in the same 

 chapter. 



The Commission of Fisheries in this State was estab- 

 lished in 1868. The original purpose was to aid Seth 

 Green in his then important experiments in fishculture. 

 The Commissioners were to serve for two years, and were 

 to make examinations of waters with reference to ascer- 

 taining whether they could be rendered "more productive 

 of fish," and were to report at the next meeting of the 

 Legislature, which they did, and their duties were ended. 

 But in 1870, before their terms of office had actually ex- 

 pired, and in view of the success of Mr. Green's experi- 

 ments, a three years' extension of their term of service 

 was granted and they were directed to "establish the arti- 

 ficial propagation of shad, whitefish and salmon trout and 

 take such other steps as they should deem necessary to- 

 ward improving the fisheries of the State." In 1873 the 

 Commissioners, then consisting of Horatio Seymour, 

 Robert B. Roosevelt and Seth Green, were by a further act 

 of the Legislature continued in office for three years, 

 Mr, Green resigned in order that he might take aotiye 



charge of the operations of hatching at his own establish- 

 ment at Caledonia and on the Hudson River, and Edward 

 M. Smith, of Rochester, was appointed in bis place. In 

 1873 an act was passed which continued the Commission- 

 ers in oflice indefinitely. The only further authority 

 given to make appointments was to the Governor to fill 

 vacancies. In IblQ a law was got through the Legislature 

 by the efforts of a Mr. McGovern, of Long Island, and 

 without-ihe knowledge of the other Commissioners, re- 

 quiring the appointment of an additional Commissioner 

 to be a resident of Long Island. Mr. McGovern expected 

 to be the Commissioner, btit while he beat the bush Mr. 

 Blackford caught the bird. In 1888, when the oyster 

 franc^hise law was passed, a provision was inserted for the 

 appointment of still another Commissioner, who should 

 be a "practical oysterman," and under this law Com- 

 missioner Joline was appointed. The laws above referred 

 to, tbe several statutes authorizing the establishment of 

 hatcheries at Caledonia, Cold Spring, Adirondack and 

 Sacandaga, which conferred no new general powers on 

 the Commissioners, and the law of 1888, authorizing them 

 to appoint game and fiah protectors who should make re- 

 ports to them, are all, aubstAutially, that the statutes 

 contain in regard to the organization duties and powers 

 of the Commission. These powers are given in frag- 

 mentary statutes lacking cohesion, and many of them 

 lapsed by the execution of specific acts required by them. 

 The powers which the Commission possess to carry on 

 their current operations are derived, not so much from 

 the statutes referred to as from the terms currently used 

 in tbe annual appropriations made by the Legislatiire. 



Among other defects in the present laws is that they 

 have the tenure of office uncertain. The term at first 

 was for two years, then it was extended three years, and 

 then made indefinite, It was the understanding of the 

 Commissioners up to a recent time, that they held by a 

 life tenure, and in this view Governor Seymotir held for 

 twelve years and Mr. Roosevelt for twenty, when their 

 service ended by their respective resignations. Attorney- 

 General O'Brien, by request of Governor Hill, for a con- 

 struction on this point, gave an opinion, from an exam- 

 ination of all the statutes bearing on the subject, that the 

 legal term was five years; but as there has been no ap- 

 pointment since the creation of the Commission to fill a 

 vacancy except by death or resignation, there has been 

 no jitdicial test on the subject. According to the Attor- 

 ney-General's opinion the terms of Commissioners Black- 

 ford and Bowman have expired; so that the change pro- 

 posed by the Game Code Commissioners has necessarily 

 no bearing upon them. The Governor may make ap- 

 pointments m their places at any time. He could do no 

 more under the new provision. Messrs. Bm-den, Joline 

 and Huntington have yet several years to serve, and if 

 the code bill passes in its present shape, two of them 

 must be necessarily dropped. 



It is obviously proper, with the state of facts presented, 

 that the law should provide some definite time of service. 

 Whetheir that term should be one, two, three or five years 

 is not material as long as it is precisely specified. A life 

 tenure is inconsistent with a republican form of govern- 

 ment and ought not to be permitted in any oflace. All 

 public otfices should be amenable to the appointing 

 power, and the nearer any official can be brought to an 

 accountability to bis constituents the better will be the 

 safeguard to honesty and faithful service. Long tenures, 

 even if for less than life, are also objectionable. No 

 oJficer, from Governor down to constable, ought to be 

 placed out of reach of popular discipline. 



The p' oposed code provides that the Governor shall ap- 

 point three commissioners to serve for terms at first of one, 

 two and three years respectively, and after the first term 

 each serves for three years. This secures always in ser- 

 vice two experienced commissioners and gives oppor- 

 ttmity each year to infuse new blood if the appointing 

 power deems it desirable. To preserve a just equilibrium 

 between the difl'erent sections of the State it is further 

 provided that no two commissioners shall be appointed 

 from the same judicial department. There are five such 

 departments, and the efl:ect would be to give to the St. 

 Lawrence and Adirondack regions, Avhich now have no 

 representative in the board, one commissioner. As the 

 Commission is now constituted, four of the five commis- 

 sioners are located in one department, and that is all at 

 tidewater. The great interior of tbe State has but one 

 representative, Mr. Bowman, of Rochester. The mode 

 of appointment is not changed. The power is still with 

 the Governor, to be exercised as he shall deem wise. If 

 he chooses to appoint three of the present commissioners 

 he may do so; but two are to be dropped. Who these two 

 may be is no concern of the commissioners. In their work 

 they do not rejiresent persons, but have in view only the 

 public interest as they regard it from an impartial stand- 

 point. Tbey do not at all recognize the necessity of five 

 commissioners, but hold that the work may be more eco- 

 nomically and better done with three, AH experience 

 goes to show that the smaller the number of any public 

 commission the better will be the work. The larger the 

 number the less will be the individual responsibility. The 

 work of commissions and committees, whether the num- 

 ber be great or small, falls on one or two of the most 

 earnest. A late member of the Assembly, noted for his 

 industry and usefulness, remarked that the only commit- 

 tee on which he had satisfactorily served was "composed 

 of himself and one other member, and that the "other 

 member" was too sick to do anything himself. 



The case of the Commissioners of Fisheries is no ex- 

 ception to the general rule. It is true that each of four 

 commissioners has a hatchery in his charge; but this 

 charge is only nominal. It consists principaUy of an ex- 

 amination and formal approval of a monthly abstract of 

 expense. The detail of the work is wholly in charge of 

 the local superintendents, all of whom understand their 

 business and give it faithful attention. The work of the 

 Commission is legislative rather than administrative. 

 They hold monthly meetings to receive reports, dispose of 

 oyster applications and dispose of incidental business; but 

 in the intervals there is but little to do except to attend to 

 casual correspondence. One of the Commissioners, ifv. 

 Joline, having no hatchery to supervise, is put nominally 

 in charge of the work in the clerk's office in New York. 

 But Mr. Doyle, the clerk, a competent officer, both directs 

 and performs the work. 



Another reason for the more equable geographical loca- 

 tion of the Commissioners is to be found in the adminis- 

 tration of the oyster franchise department. The oyster 

 law of 1888 was so loosely drawn and gave such large die- 

 oretion to the Board, that in order to sufficiently guard 



the public interest they found it necessary to bind them - 

 selves by a rigid code of rules for the faithful administra- 

 tion of their trust. One of these rules required the assent 

 to be entered on their records of three ComDiigsirjners to 

 any grant. This was to give any one of the interior Com- 

 missioners, as it were, a veto power over the actB of the 

 two tidewater Comaiissioners, who might perchance, 

 from their location, be disposed sometimes to act from 

 favoritism. But by the accidents of appointments, this 

 check no longer exists, and three of the tidewater Com- 

 missioners may have the whole voice in making the 

 grants. The change which the Commissioners propose, 

 puts it out of the power of the tidewater men to favor ox 

 control local or personal interests. 



But one more subject of criticism remains for notice. 

 This is the objection urged against making the head- 

 quarters of the Commission at the Capitol. There is no 

 law at present making this headquarters anywhere. For 

 the convenience, it is alleged, of applicants for oyster 

 franchises the Commissioners have opened an office in 

 New York, which entails heavy expense for rent and 

 general maintenance. All the State Commiasioners ex- 

 cept this have their headquarters at Albanv, where ample 

 office room is provided in buildings erected for public 

 purposes. Here necessary interchange of communica- 

 tion with other public oftices is always available. The 

 Attorney-General is at hand to answer questions of law, 

 in regard to which none need to be more frequentiv in- 

 formed than the Commissioners of Fisheries. Tlie Comp- 

 troller's and Treasurer's offices, also important adjuncts, 

 are here. The Forestry Commission and the Chief Game 

 Protector's office are both in tbe Capitol, where they 

 ought to be, and the intimate relations betw-een these 

 and the Fish Commission demand that the offices sliould 

 be as near to each other as may be. As to the oyster ap- 

 plicants, why is it not as iiroper for theui to go to the 

 Commissioners as for the Commissioners to go to them? 

 But even this is not necessary. The code bi'u provides 

 that every alternate monthly meeting may be held else- 

 where than at the Capitol, so that if it should be more 

 convenient in the administration of the oyster business 

 to hold meetings at New York, Staten Island, Coney 

 Island, the Great South Bay or anywhere else within the 

 territory of the State, they have it in their power to 

 do so. 



It seems to me that the claim that the principal office 

 should be held in New York, contrary to the case of all 

 the other State Commissions, which are required to be 

 located at Albany, has no just or even plausible basis. 



Richard U. Sheuman. 



New Hartpord, Feb. 23. 



The New York Fishery Commission held a meeting on 

 Friday morning in the office of the Chief Game and Fiah 

 Protector, The only business of importance transacted 

 was the appointing of the president of the board, E. G. 

 Blackford, to the vacancy existing in the Codification 

 Commission, caused by the resignation of R. U. Sherman 

 from the Fishery Commission. 



RAINBOW AND BROOK TROUT CROSS. 



Editor Forest and Stream: 



Through the columns of the Highland Star, of High- 

 lands, Macon county, N. C, I have read an article on the 

 trout fishing of that section, from the able pen of Mr. 

 Henry Stewart. I also note your remarks about the 

 crossing of the Salveluius fontinalis and the Salmo 

 irideiis in the stream of which Mr. Stewart makes men- 

 tion. 



Will you kindly allow one who has fished these waters 

 for the past three summers to state that it has been his 

 luck to capture a good many of the trout Mr. Stewart re- 

 fers to, and that it is undoubtedly the case that they are 

 crossing, the markings on the fish putting this beyond 

 dispute. I have noted what appeared to me several de- 

 grees of crossing or at least a considerable degree of dif- 

 ference in the distinctness of the markings. I suppose 

 the irideus being the larger and stronger fish is the 

 reason that the crosses show more of that breed than the 

 fontinalis. During the season of 1890 i noticed large 

 quantities of these crossed fish apparently about one year 

 old. I capttu-ed none older than that, which would lead 

 to the conclusion that the crossing must have taken place 

 during the season of 1889. 



If you will still further permit me I would like to add 

 my testimonial to Mr. Stewart's as to the superior quality 

 of the trout fishing in western North Carolina. Since 

 youth I have been an enthusiastic angler after trout, and 

 have had the pleasure of fishing the best preserves of 

 Scotland, and I must say that for size, numbers and 

 fighting qualities the trout of North Carobna far surpass 

 any I have met. The section being very little known to 

 the fly-fisher, the trout are not very "knowing," and 

 during the past season I have fished streams in that sec- 

 tion on which a fly had never been cast till I anived. 

 The Salmo irideus vefevved to by Mr. Stewart are only to 

 be found in one stream, a large portion of which is on 

 that gentleman's estate, and as a game fish I must award 

 them the palm, as I firmly believe that a Cin. Salmo 

 irideus will afford more sport in the way of fighting than 

 a lOin, fontinalis. They seem to have a tendency toward 

 going down stream, as I have found large quantities of 

 them from seven to eight miles below where they were 

 first placed in the water, while I have never captured any 

 above. This may be accounted for in some measure by 

 the fact that the stream rapidly narrows down, above and 

 is much fished by pot-hunters, while below the stream as 

 rapidly increases in size, and the nature of tbe glens and 

 wild canons that it rushes through affords the fish a bet- 

 ter chance to escape the ravages of the "trout hog." 



For beauty of scenery and reaches of water that would 

 delight the heart of the tourist and the trout fisher it has 

 never been my lot to see a better. Every conceivable 

 kind of water can be found here, from the wild cascades 

 and roaring waterfalls to the deep black pools and 

 "wimpling" waters that chatters over gravelly bottom. 



W. M." Brown. 



Florence, S. C. 



[We shall esteem it a favor if Mr. Brown will send us 

 one or more of these hybrids for examination and inform 

 us whether any artificially produced hybrids have been 

 introduced into this regitm. Specimens can be safely 

 forwarded in alcohol or strong whisky in a JMason or 

 other glass jar and will be reported upon fully. We have 

 never seen a natural hybrid among trout and salmon], 



