406 
flppping into .the water with a splash such as an eliefchant 
might make. I had them counted, in my mind, but do 
what w;e could, two of them got away, and my contribution 
to the bag was one goose. 
L. and his friend returned to New York, but I have 
remained down here for the bay bird shooting, and yes- 
terday hearing curlews — graybacks, yellowlegs and beagles 
were plenty — on the Broadwaier, twenty-five minutes' 
drive from here, I drove over there and got Lucius Cobb, 
one of the best of the old Cobb Island guides, to sail me 
out and look about a bit. 
We saw a tremendous number of birds; in fact, the 
marsh was alive with them, mostly curlew and gray- 
backs, and returned to get snipe stools, etc., in read ness, 
and to-morrow I am going to have a day or two with the 
shore birds, and of my luck, if sufficiently interesting, I 
will write to you anon. The Secketary. 
The IVIaine Guide Law. 
Following is the full text of the opinion delivered by 
Judge Folger in the case of Elmer Snowman, the Range- 
ley guide who contested the constitutionality of the law 
requiring guides to take out licenses: 
The respondent was indicted and tried for an alleged 
violation of the provisions of Section i of Chapter 262, 
Public Laws of 1897, which reads as follows: 
"Section i. No person shall engage in the business 
of guiding, as the term is commonly understood, before 
he has caused his name, age and residence to be recorded 
in a book kept for that purpose by the Commissioners 
of Inland Fisheries and Game, and procured a certificate 
from said Commissioners, setting forth in substance that 
he is deemed suitable to act as a guide, either for inland 
fishing or forest hunting, or both, as the case may be. 
Whoever engages in the business of guiding without hav- 
ing complied with the provisions of this section, forfeits 
$50 and costs of prosecution." 
Section 2 of the same chapter is as follows: 
"Section 2, Each registered guide shall from time to 
time, as often as requested by the Commissioners, on 
blanks furnished by the Commissioners, forward a state- 
ment to them of the number of persons he has guided 
in inland fishing and forest hunting during the time 
called for in said statement, the number of days he has 
been employed as a guide, and such other information 
relative to the inland fish and game, forest fires and pres- 
ervation of the forests in the localities where he has 
guided, as the Commissioners may deem of importance to 
the State." 
Other sections of the chapter require that the registra- 
tion provided for by the act shall take place annually on 
or before the first day of July; that when any registered 
guide shall be convicted of any violation of the inland 
fish and game laws he shall forfeit his certificate; that 
a fee of $1 shall be paid by each person registered, and 
that the money thus received shall be and become a part 
of the fund for the preservation of inland fish and game; 
and that the act shall not be construed to apply to any 
person who has not, directly or indirectly, held himself 
out to the public as a guide, or solicited employment as 
such. 
The indictment alleges that the respondent Elmer 
Snowman, at Rangeley, in the county of Franklin, "On 
the second day of July in the year of our Lord one thou- 
sand eight hundred and ninety-eight, and on divers other 
days between said second day of July. A. D. 1898, and 
the day of the finding of this indictment, was then and 
there engaged in the business of guiding in inland fishing 
and forest hunting as the term is commonly understood, 
said Elmer Snowman not having caused his name, age 
and residence to be recorded in a book kept for that pur- 
pose by the Commissioners of Inland Fisheries and 
Game of the State of Maine, and had not then and there 
procured from said Commissioners a certificate setting 
forth in substance that he is deemed suitable to act as a 
guide either for inland fishing or forest hunting, against 
the peace," etc. 
The jury returned a verdict of guilty, whereupon the 
respondent filed a motion in arrest of judgment which 
was overruled by the presiding justice, and to such over- 
ruling of the motion the respondent excepts. 
The respondent also excepts to an instruction given 
by the presiding justice to the jury. 
The motion in arrest of judgment alleges that the in- 
dictment is bad for duplicity, and is otherwise insuffi- 
cient in law; and that the statute under which the re- 
spondent is indicted is unconstitutional. 
We are of opinion that the indictment is sufficieHt in 
law. But one offense is charged, namely, that of hav- 
ing been unlawfully engaged in the business of guiding, 
and the indictment is not, therefore, bad for duplicity. 
The indictment follows closely the language of the 
statute, so that the offense charged and the statute under 
which the indicement is found can be clearly identified 
and understood. 
The counsel lor the respondent contends that the 
statute under which the respondent is indicted is re- 
pugnant to that clause of the Declaration of Rights. Sec- 
tion I, Article i, of the Constitution of Maine, which de- 
clares that "All mem are born equally free and inde- 
pendent, and have certain natural inherent and un- 
ahenable rights, among which are those of enjoying: 
and defending life and liberty, acquiring, possessing, ob- 
taining and protecting property, and of pursuing safety 
and happiness." 
It is argued in support of this contention that the 
statute in question deprives the respondent and others 
from engaging in a lawful vocation, and is therefore in 
contravention of the provisions of the bill of rights 
guaranteeing the liberty of all citizens. 
It is unquestioned that every person has the natural 
right to pursue any lawful vocation, but such natural 
right is subject to the legal maxim, "sic utere itia tit 
alienum non Icedas." So when a vocation, naturally 
lawful, or the mode of exercising it, inflicts injury to the 
rights of others, or is inconsistent v<^ith the public wel- 
fare, it may be regulated and restrained by the State i»y 
the exercise of its police power, by which persons and 
property are subject to all kinds of restraints and burdens, 
in order to secure the sreneral comfort, health and pros- 
perity of the State. Tiedman's Lim. of Police Powers, 
Section i, „ i. 
The question here is whether the enactment of the 
statuii. uurfer consideration by the Legisla'ture was a 
legal and constitutionar exercise of such power, or falls 
within constitutional limitation. 
The rule to be observed by the judiciary in determin- 
ing the constitutionality of a legislative enactment is 
thus stated in State v. Lubee, 93 Me., 418: "Every pre- 
sumption and intendment is in favor of the constitution- 
ality of an act of the Legislature. Courts are not justi- 
fied in pronouncing a legislative enactment invalid unless 
satisfied beyond a reasonable doubt of its repugnance to 
the constitution; and nothing but a clear violation of 
the constitution — a clear usurpation of power prohibited 
— will warrant the judiciary in declaring an act of the 
Legislature unconstitutional and void." 
The manifest purpose of the statute in this case is the 
preservation of fishes in inland waters of the State, and 
i;he game in its forests. By the terms of the act a person 
to be authorized to act as a guide in inland fisheries 
and forest hunting must be registered and certified by the 
Commissioners 01 Inland Fisheries and Game, whose cer- 
tificate must set forth in substance that the person to 
whom it is issued is suitable to act in such capacity. 
Each person so registered and certified is required as re- 
quested by the Commissioners to furnish certain statistics 
as to his employment as guide, and also such other useful 
information relative to inland fish and game, forest fires 
and the preservation of the forests, as the Commission- 
ers may deem important to the State. 
The fishes in the waters of the State and the game in 
its forests belong to the people of the State in their 
sovereign capacity, who, through their representatives, 
the Legislature, have sole control thereof, and may per- 
mit or prohibit their taking. Martin v. Waddell, 16 
Pet,, 410; Geer v. Conn., 161 U. S., 519; and cases there 
cited. Ex parte Maier, 103 Cal., 476; State v. Redman, 
58 Minn., 393- 
In the case last cited the court says: "We take it to be 
the correct doctrine in this country that the ownership 
of wild animals, so far as they are capable of ownership, 
is in the State, not as a proprietor, but in its sovereign 
capacity, as the representative and for the benefit of all 
its people in common." 
In ex parte Maier, supra, it is said, "The wild game 
within a State belongs to the people in their collective 
sovereign capacity. It is not the subject of private owner- 
ship except in so far as the people may elect to make 
it so; and they may, if they see fit, absolutely prohibit 
the taking of it, or traffic and commerce in it, if it is 
deemed necessary for the protection or preservation c 
the public good." 
When the State permits the taking of fish and game 
it has full power and authority to regulate such taking. 
It may impose such conditions, restrictions and limita- 
tions as it deems needful and proper. Geer v. Conn., 
supra, in which Mr. Justice White, who delivered the 
■opinion of the court, exhaustively examined and dis- 
cussed the question here involved, citing an array of au- 
thorities, says, p. 528, "In most of the States laws have 
been passed for the preservation and protection of game. 
We have been referred to no case where the power to so 
regulate has been questioned, although the books contain 
cases involving controversies as to the meaning of some 
of the statutes." See also Manchester v. Massachusetts,, 
139 U. S., 240; Roth V. State, SI Ohio St., 209; Allen v. 
Wyckoflf, 48 N. J. L., 90 ; Phelps v. Racey,-6o N. Y., 10; 
Moulton V. Libby, 37 Me., 494; State v. Whitten, 90 
Me., 55. . c 
It has been for many years the policy of this State to 
protect and preserve its fish and game, and to that end 
the Legislature has annually appropriated and caused to 
be expended large sums of money and has enacted 
numerous statutes. Under this wise policy the fish and 
game within its borders have become of great importance 
and value to the State. The statute here in question is 
a further enactment in pursuance of such policy. 
It is well known that most sportsmen who frequent 
remote streams and lakes, and traverse the trackless for- 
ests which cover large portions of the State, do so under 
the guidance and direction of guides. Guides may be re- 
garded as instrumentalities in fishing and hunting. Guides 
should possess such skill, experience, sagacity and 
probity that not only the safety of the sportsmen but the 
welfare of the State can be properly intrusted to them. 
They should be under such restrictions that it shall be 
for their interests to discountenance violation of the 
fish and game laws. The Legislature has deemed it wise 
to create such a body of men who shall pursue such 
vocation under the supervision of the Commissioners 
of Inland Fisheries and Game, 'and shall assist the 
Commissioners in protecting and preserving the property 
of the State. The privilege of hunting and fishing is 
granted bv the State freely and without price, and it is 
reasonable and proper that all who avail themselves 
•of that privilege, whether they be fishermen, hunters or 
guides, should conform and be amenable to such regula- 
tions as the State may impose. We are of opinion that 
the Legislature has the constitutional power to regulate 
the employment of guides in fishing and hunting as pro- 
vided in the statute here in question. 
The learned counsel for the respondent further con- 
tends that, assuming the statute to be otherwise consti- 
tutional, the requirement that each person registered and 
certified under the provisions of the act, shall pay a fee 
of $1, is repugnant to the constitution, and that the 
statute is for that reason unconstitutional and void. We 
do not sustain that contention. It is well settled that 
when the State issues a license to any person to carry 
on any business or to engage in any vocation, it may 
exact a reasonable fee therefor. Tiedman on Lim. of 
Police Powers, Sec. lox, p. 274, et seq., where the author- 
ities upon this point are collated and examined. The 
fee required by this statute is certainly reasonable, being 
no more than is sufficient to defray the expense of regis- 
tering and certifying and maintaining necessary super- 
vision. 
We therefore hold that the statute under which the 
respondent is indicted is not repugnant to the constitu- 
tion of the State, but is constitutional an4 valid. 
The defendant excepts to the following instructions 
given to the jury by the presiding justice, viz.: "And I 
think I will say to you for the purposes of this case, as it 
will undoubtedly go forward to thejaw court, if he acts 
as guide one or more times, not being licensed, he falls 
within the provisions of the statute as being engaged in 
- • -iM-AV :St), - ly*<^i•■- 
the business of "guiding, I think the statute intend>:j1 
to prohibit all guiding unless by licensed guides."' 
This instruction was erroneous, and the exception there 
to must be sustained. 
The respondent is charged in the indictment with hav- 
ing been unlawfully engaged in the business of guiding. 
Whether he was so engaged as a business, was a question 
exclusively for the jury. A single act of guiding with 
proof of other circumstances might satisfy them of the 
truth of the charge, while, on the contrary, proof oi 
two or more acts of guiding, with other circumstances 
proved, might fail to so satisfy them. Moreover, the 
statutes, Sec. 5, Ch. 262, P. L. 1897, provides that "This 
act .shall not be construed to apply to any person who 
does not, directly or indirectly, hold himself out to the 
public as a guide, or directly or indirectly solicit em- 
ployment as such." 
Exceptions as to sufficiency of indictment and as to 
constitutionality of statute overruled. Exception to in- 
struction of presiding justice sustained. New trial 
granted. 
The Ohio Law Muddle. 
The Ohio Legislature has amended the laws govern- 
ing Lake Erie fishing in a way to give greater con- 
cessions to the net fishermen. The Cleveland Leader 
relates the changes and explains their effect thus: 
So important were the results that some details of the 
story of how Mr. Gear got the farmers to help him give 
the big fishermen of Lake Erie what they wanted may be 
worth stating. 
A word or two of history is indispensable. Four, or 
perhaps more, years ago a law was enacted requiring the 
fishermen to pay a certain price on each ton of fish caught 
in Lake Erie. Not many of them made a report and paid 
the tax, and there was no way of getting information to 
compel payrnent. As the State was put to a heavy ex- 
pense in policing Lake Erie, the State Game Commission 
two years ago had drafted a bill which became a law, re- 
quiring every person who fished for profit in Lake Erie to 
procure a license for each boat or net used. That law 
was strict, and hard to avoid. There also was inserted 
in the same act a definition of a reef, and this definition 
could be understood by a school boy. This year the State 
Game Commission attempted a general revision of the 
game laws, in particular, amending the penalty sections so 
as to eftectually protect birds and game. This revision 
was known as the Roberts bill. Perhaps it gave too 
much power to the State Commission, but the Com- 
mission was sure it would reach every scheme to evade 
the laws._ But the farmer members of the Legislature 
were desirous of practically putting a stop to all hunt- 
ing, and the big Lake Erie fishermen were opposed to 
the boat and net licenses, which compelled them to pay 
fees amounting to about $4,000 to $5,000 a year. Neither 
the farmers nor the fish companies wanted the Roberts 
bill. 
Gear, of Wyandot, undertook to please everybody. In 
William's bill all that was left of the provision for boat 
and net licenses was a row of dots here and there where 
he had smote the objectionable words. Instead of those 
provisions which the Game Commission declare would 
alone be eitective in bringing to time the lake fishermen. 
W'illiam reincorporated the tax of fifty cents a ton oil 
fish caught, which^proved utterly ineffective a few years, 
ago, because the fisherman makes his own tax returnst 
and practically can return as much or as little as he 
pleases. 
The easily understood definition of a reef was (Sectiors 
6968-4) : 
"For the purpose of this act a reef shall be understood 
to mean the bed of the lake where the water is 20 feet 
or less in depth, whether it be along the shore of the 
mainland, the shore of an island, or the bed of the lake 
in any place, and where in each case the same is composed 
of rock, either broken or in place, or of gravel." 
Gear substituted a definition, in interpreting which the 
Supreme Court judges certainly will earn the in- 
creased salaries the Legislature granted them. Whatever 
a reef is actually, in law, it now is an obscure something. 
The Gear definition reads: 
"For the purpose of this act a reef shall mean an 
elevation of rock either broken or in place or gravel 
shown by the latest United States chart to be above the 
common level of the surrounding bottom of the lake, other 
than the rock, broken or in place, forming the base or 
foundation rock of an island or mainland, and sloping 
from the shore thereof; and shall also mean an elevation 
shown by such chart to be above the common level of 
such sloping base or foundation rock of an island or 
mainland, whether running from the shore of an island 
or parallel with the contour of the shore of an island or 
in any other way, whether formed by rock broken or in 
place or from gravel." 
Any fisherman taken into court on the charge of fishing 
on or over a "reef" can prove easily that there are no 
"reefs" in or about Lake Erie. 
To placate opposition to these features of his bill, Mr. 
Gear set a bait for the farmer vote. He fixed it so no 
game can be killed except between Nov. to and Dec. i, ex- 
cept ducks, with certain limitations, and here is where 
the joke comes in on the duck hunters. 
One provision of this section (6961), as it stood prior 
to the time William, of Wyandot, appeared, read: "No 
person shall kill any wild duck on Sunday or Monday or 
any week on any of the reservoirs belonging to the State 
of Ohio, or upon the waters of Lake Erie and the estuaries 
and bays thereof," etc. 
Now what Gear didn't do to that .little provision wa.= a 
plenty, and he did it with the little word "or." 
That provision now reads: "No person shall kill any 
duck on Sunday or Monday of any week, or on any of 
the reservoirs belonging to the State of Ohio, or upon the 
waters of Lake Erie and the estuaries and bays thereof, or 
on the rivers, creeks, ponds, or other waters or bodies of 
water in this state." 
Now that little word "or" has caused a jubilee in duck- 
land. For the next two years Ohio will be a naradi=e for 
ducks. The onlv duck that it is lawful to kill or shoot 
at is the duck who gets an idea into his head to fly ovej* 
Ohio straight northward to the Arctic Circle, or wings his 
flight, south ward to nerch on the ring of the Aitarct'C. 
But the duck which comes down and savs "Hello, there, 
how are you? I am here to stay," is perfectly safe. For 
