Forest and Stream. 
A Weekly Journal of the Rod and Gun. 
Copyright, 1900, by Fokest and Stream Publishing Co. 
'--''iJfl^.rll'ir-'''--\ NEW YORK, SATURDAY, MAY 26, 1900. U J.^^.o^Z:-;%l\o.. 
JVhe Forest and Stream is the recognized medium of entertain- 
ment, instruction and information between American sportsmen. 
The editors invite communications on the subjects to which its 
pages are devoted. Anonym dus communications will not bt re- 
garded. While it is intended to give wide latitude in discussion 
of current topics, the editors are not responsible for the views of 
correspondents. 
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particulars respecting subscriptions, see prospectus on page iv. 
'"It is wholly immaterial whether the sportsman or 
hunter use a repeating or magazine gun or a double or 
single barreled gun. When the limit is reached he has 
to stop shooting or incur the penalty prescribed. No 
valid reason is, therefore, perceived, and none has been 
suggested by counsel, why the owner of a repeating or 
magazine gun should be prohibited from using it, and the 
owner of the equally if not more effective double-barreled 
automatic ejector shotgun be free to use it in the killing 
of the twenty-five quail, grouse, etc." 
you are interested; if you are a fisherman you go to him 
and amiably and cheerfully ask him for the story of the 
heavy basket. He will heartily tell you about the doings 
of a great day, and if you show a proper earnestness and 
appreciation, he may open the basket and let you peep at 
his treasures more precious than fine gold, more beautiful 
than the lily of the valley, and will point out the big 
fellow which gave several moments of perilous possi- 
bilities in the way of loss in the stream which rushed over 
rock and rapid; he will tell you all about it, everything 
about it — glories, thrills, perils. Tell everything? Not 
quite. One thing he holds back — you ask in vain where 
he got them. 
SNAP SHOTS. 
We print to-day the full report of the decision rendered 
by Judge Folger in the Maine guide case. It is deserving 
of careful reading because of the lucid Avay in which it sets 
forth the rights and privileges of shooting and fishing. 
Much of the opinion is of the nature' of repetition anew 
of principles which have been stated over and over again 
by one court after another, and which by this time should 
be farniliar to every intelligent sportsman. The fact is, 
however, that even many lawyers, however learned they 
may be in other branches of law, are all at sea when it 
comes. to game and fish and "natural rights" and "con- 
stitutional rights." We have heard lawyers in State 
sportsmen's conventions solemnly argue that it would be 
unconstitutional to prevent the sale of game in open sea- 
son, because when once a person had acquired possession 
of gaitie lawfully killed, it was his to do with as he 
pleased. 
An interesting- suit, brought for penalties for infringe- 
ments of the fish netting law, was decided in this city last 
week. I The action was brought by Game Protector Willett 
Kidd, ;of Newburgh, against one August Rohl, of Rock- 
land Liake, in Rockland county, for taking fish in a gill 
net. It appears that fishing parties stopping at Rohl's 
establishment on the lake never came away empty 
handed. The expression "fisherman's luck" had no mean- 
ing for them. They were always sure of a catch. Inquiry 
by the, game protector developed the fact that Rohl was 
accustomed to . secure a goodly supply of fish by gill 
netting, and these were kept on hand in fish cars to be 
carried home by his guests. Brought to trial, the enter- 
prising host settled the case for $31.50 and costs, and it is 
fair to assume that in the immediate future, at least, fisher- 
men who patronize his establishment will be compelled to 
catch their own fish. 
We print a suggestion by Dr. Robert T. Morris, that 
the fishermen of the inland lakes should have their nets 
licen'^ed and that the money received from the licenses 
should be expended for the purpose of restocking the 
waters with fish. The plan appears sensible on its face. 
There is, however, grave question whether regulations 
could be enacted and enforced which would insure the 
restrictions necessary to keep the net fishermen within 
bounds. It is a characteristic of those who are engaged in 
the industry that they will riot observe the law volun- 
tarily, no matter how favorable to their own interests ob 
servance might prove to be. Those who have had ex- 
perience with the netting problem in inland waters are 
those who are most skeptical as to the practical working 
of a licensing of nets. 
A notable enterprise in international fish planting opera- 
tions is the shipment of 700,000 shad eggs by the United 
States Fish Commission to Ireland. The eggs were sent 
on the steamship Oceanic, sailing from this port last 
week. They were consigned to Morton Frewen. of Ift- 
neshannon, Ireland, by whom they will be put into the 
River Shannon. It is believed by those who have studied 
the conditions that tlie shad can be propagated in Inm 
and English waters. 
The ^proceedings of the. international conference at the 
British Foreign Office, to consider a sch'eine of «mte<! 
3.ci^6h. :.for the preservation of African game, have cot 
been made puMic. It is believed that the objects of the 
meeting are in a fair way of attainment 
The Lacey Bill passed the Senate without amendmejit 
on Momday of this week, 
GAME AND THE CONSTITUTION. 
Marin county^ California, has an ordinance which limits 
the number of quail which a person may take in a day to 
twenty-five, and which further prohibits the use of the 
repeating shotgun, commonly known as the "pump gun," 
as an instrument unduly destructive of game. Mr. W. A. 
Marshall, a large landowner of the county, was prosecuted 
for violation of the ordinance, and having been defeated in 
the Superior Court, carried the case to the United States 
Circuit Court, Judge Ross, where it has just been de- 
cided in his favor. As the case is reported, the question 
presented to Judge Ross under the Fourteenth Amend- 
ment of the Federal Constitution was as to whether the 
ubjectionable clause of the ordinance deprived Marshall 
of property without due process of law. This question 
the Court answered in the affirmative. From the evi- 
dence the Judge found that the repeating shotgun is less 
destructive of game than a double-barreled gun equipped 
with an automatic ejector. It was pointed out that a gun 
has no value except as it is used, and in this connection 
the opinion said : 
"To deprive the petitioner of the use of the gun in 
question is, therefore, to deprive him of his property. 
Not only so, but if Marin county may lawfully prohibit the 
use of such a gun, every other county in the State of Cali- 
fornia may, as a matter of course, do likewise, and so 
may every other State and Territory in the United States, 
thus practically destroying the manufacture of this class 
of guns for the shooting of game within the United 
States." 
We hardly need point out that while the reasoning of 
Judge Ross on this point is logical, the proposition is by no 
means clear that because the use of pump guns might 
univer.^ally be forbidden such prohibition would not be 
quite within the constitutional power of the States. An 
analogous case is that of the swivel-gun, or big-gun, for- 
merly employed for killing wildfowl. The use of these 
arms is now almost universally forbidden, and the only 
lawful arm is a gun which is "shot from the shoulder." 
Yet no one has ever dreamed of contending for a right 
to use a swivel-gun on the ground that a swivel-gun is 
property and that to be deprived of the use of it is to be 
deprived of property without due process of law. An- 
other analogy is that of fishing nets. The United States 
Supreme Court has sustained the constitutionality of a 
New York statute which forbids the use of nets in inland 
waters and empowers the protectors to seize and sum- 
m-arily destroy nets when found. The Supreme Court 
said that the Legislature had the constitutional authority 
to forbid the use of such contrivances, to declare them 
nuisances and to cause their immediate destruction. This 
right proceeds from the State's ownership of the game 
and fish. As the owner it may control the taking, and in 
this control may prescribe when and how the taking may 
be effected. In his opinion on this particular point, there 
is then the best reason to believe Judge Ross will prob- 
ably not be sustained by the higher courts, if the Marin 
county supervisors shall carry out their expressed in- 
tention of appealing the case to the Circuit Court of Ap- 
peals. 
On the other hand, there may be certain features of this 
particular case which would sustain tlie present finding, on 
the ground, for instance, that the prohibition of the 
use of pump guns did not actually tend to game protec- 
tion in Marin county. As has been intim.ated. the testi- 
•mony adduced at the trial was to the effect that the pumpf^: 
gun was not more destructive than the double-barrel, and-*" 
the^Court was, 'of co.urse, obliged to go by the evidence. 
^^^reove^. Jud^:, Ross found from an analysis of th^ 
Zilarin ordinance that the main object songht to be accom- 
plished was to 'prevent the killing ^bf more than twenty-V 
five quail by any one man in a single day. This being so, 
no reason appeared for legislation against the nse of a 
particular kind of gun. The o^viiuon said " 
OHIO TRESPASS. 
Under a new system which has just gone into effecrt in 
Ohio, it is made obligatory upon the sportsmen in quest 
of game to secure the written consent of a landowner 
before entering upon his fields for shooting. This is one 
of those affairs concerning which the most obvious com- 
ment is that circumstances alter cases. The regulation 
has manifestly grown out of the impatience of those 
owners of land who have been in frequent conflict with 
shooting trespassers. The rule is in the direction of 
more stringent protection for them. On the one hand, 
in sections and with people who have not had such con- 
flicts, it is improbable that there will be any material 
change. If one has had the liberty of the fields accorded 
to him in seasons past, and if his relations with the 
owners of lands have been friendly and satisfactory, they 
wiir continue to be so. On the other hand, if the owner 
of shooting grounds has in the past kept off shooting tres- 
passers, he will now have means of doing so more 
effectively, and in the end the result will be for the advan- 
tage of the game supply. 
The Ohio law is significant of a growing restriction as 
to shooting privileges. Under the old conditions the 
right to enter upon lands for shooting or fishing was 
commonly accorded. Then, as it became the desire of a 
larger number to protect their premises against shooters, 
laws were enacted providing that notice must be given by 
trespass signs if shooting was to be forbidden. The 
assumption here was that a person had a right to enter 
upon the land unless notice was given to him of the con- 
trary. The new Ohio law is based upon a different 
assumption, which is that a person has no liberty to enter 
unless permission is expressly given him. The old way 
was much the more convenient for the shooter, but it is 
doubtful if; all things : considered, the '.new: will not ulti- 
mately prove more advantageous, for it will restrict 
the game to those who either for a consideration or out 
of good will may sfectire permission to take it. ■ 
THE MAN WITH THE BASKET. 
This is the season of the year when the man with the 
basket is seen on boat and train, at' depot and on the 
street, and in the lonely nooks and byways of the coun- ; 
try. People eye him curiously, with a manner of in- 
terest which denotes that they hope he has had good suc- 
cess and would like to know about it. They seem to 
wonder whether he had a pleasant day and through what 
stretches of valley and stream his wanderings lay. The 
spirit of the springtime, pervading around and about the 
basket, has its language, understood at a glance, by the 
brethren of tlie rod and reel. And as to the angler? You 
may know by the way in which he carries the basket, the 
glint of success in his eye, the erect poise of his person, 
the treasures that are within it even if its peculiar shape 
did not proclaim to all observers that it was made for 
trout. No other basket is borne So bravely. No other 
basket excites so much curiosity, so much sympathy of 
purpose in what the basket portends. Nor would the 
bearer of an ordinary basket tolerate the questioning looks 
and the questioning words of those met on car, or country 
road, or city street. 
The curiously wrought basket is a link of sympathy 
between all those within sight of it. Conversation starts 
amiably and naturally at sight between old friends or 
those who meet in the passing moment Has=.nofc tligj-day 
been fuir of the delights of the hook and line?- TlM5lieS.vy 
fish basket is proof of it. and he who 1>ears it is there- ? 
fore the most amiable of eartli's creatures. He* feels 
that he -shoul'ii be' questioned, that he deserves to be 
quest^bded, arid his' manner "invites questioning as-is be- 
coming unto one who has done, deeds worthy of the 
consideration of his fellows. If' you. are a fishorman 
xrnarself, ytw do not stop to reason it out or ask why ■ 
