Forest and Stream. 
A Weekly Journal of the Rod and Gun. 
Copyright, 1900, by Forest and Stream Publishing Co 
Terms, $4 a Year. 10 Cts. a Copy. ) 
Six Months, $2. j 
NEW YORK, SATURDAY, NOVEMBER 24, 1900. 
I VOL. LV.— No. 21. 
( No. 346 Broadway, New Yor 
HARD TIMES COMING. 
Winter is at hand. Over much of the land the hard 
cold has already set its grip upon the quiet waters; in 
parts of the north and west white snow covers the ground ; 
mcst of the birds have flown southward, fearing less the 
cold — which they could endure — than the scarcity of food, 
which means weakness and death. 
Before long the cold and the snow will extend over the 
whole northern land, the bird life which in summer is 
scattered universally over the whole continent will have 
all swept southward in a great wave, and the land beyond 
the limit of frost will be crowded with twice its former 
number of feathered inhabitants. In the bright land to 
which they have gone there is warmth, sunshine, cheeri- 
ness and food, while at the north there is cold and hunger. 
Yet the hardy inhabitants of our mountains, prairies and 
woods and swamps are well fitted to endure the rigors of 
bitter winter if only they can have abundant food. The 
inuskrat builds his house — a warm shelter from which he 
sallies forth only now and then; the fur of the mink and 
fox is thick, long and heavy; the squirrel and the raccoon 
dream away the days in homes well protected from the 
cold, and venture forth only on bright or warm days, hid- 
ing themselves again when it grows colder. 
The feathers of the birds have grown thicker ; the quail 
at night crowd together in the shelter of the swamp, and 
at mid-day sit cuddled up in a fence corner sheltered 
from the wind and well warmed by the sun. The grouse 
loiter along the warm side of the alder run, and at night, if 
the cold is hard, perhaps use the feathery snow for a 
blanket. Bluejays, chickadees and kihglets spend the 
bitter night in the thick cedar trees, their bodies puffed 
out into little balls which the feathers standing on end 
keep warm. Among the naked trees of the woods, and 
whirling like snowdrifts across the white fields, are many 
strangers from afar — white owls and snow buntings, pine 
grosbeaks, crossbills and other vagrant birds of the north, 
whose wanderings in search of food carry them here and 
there over wide stretches of country. Yet when a place is 
fotmd where food is abundant, they remain there day 
after day. or week after week, until forced by hunger to 
renew their quest. 
A great degree of cold can be endured b}^ our winter 
birds, provided only they have sufiicient food to eat. 
Warm covering is needed against the keen frost, yet after 
all what is chiefly required is fuel to feed the internal 
hrcs by which the cold may be withstood. Yet in winter 
seeds and fruit for the vegetable feeders may be hard to 
find, since the snow buries all food that has fallen to the 
ground. Nevertheless the seeds and berries of many 
shrubs and trees — the sumach, the mountain ash, the cedar 
rind the pine — still cling to their stems and support an 
army of birds that but for them could not exist. 
A multitude of insect eaters — the woodpeckers, nut- 
hatches, creepers, titmice and kinglets — all tiny birds 
that one would hardly imagine could resist the cold — are 
at home in our winter woods where they live well and 
do a world of good. They find their food in the crevices 
of the bark, on the under sides of dead leaves, and in the 
crannies of the rail fences, where, all through the sum- 
mer noxious insects were at work depositing their eggs, 
from which next spring might be hatched a pestilential 
brood to destroy farmers' crops. It is the business of 
these tiny feathered heroes of the winter to combat this 
evil, and unknowingly to perform for man a service 
whose money value cannot be measured exactty in dollars 
and cents, but which, we may be sure, amounts to a very 
large percentage of the sum annually received for all our 
agricultural products. By most birds this helpful work 
is done only in the summer, and the destruction is of 
adult insects alone, but the tiny cold weather gleaners 
work all the year round in season and out, and, quiet, un- 
obtrusive, unthanked and even unknown, they enable us 
to live our lives in the land and to exist as a people. 
It is worth the Avhile of every one who can to do 
something to make the winter easier for the birds that 
stay with us. They do not give us sweet songs ; they do 
not brighten our lawns with gay plumage, but they work 
for us all the while. Now is the time of hardship for 
all wild life, and each one of us may well do what lies 
in his power to lessen that hardship. Grain for the 
ruffed grouse should be scattered in the warm places in 
swamp and in forest where the snow first melts. In the 
fields anjl coverts \yhere th^ quail live, shelters shoiild be 
placed to keep the birds from being covered up by snow, 
and abundant food should be provided. On the trunks 
and branches of the trees here and there may be tacked 
up pieces of fat meat or of suet, on which the nut- 
hatches, creepers, titmice and kinglets will greedily feed, 
and which may help them through some bitter night. 
The cost of doing a little work of this kind is nothing. 
The trouble is slight; but the reward to be reaped in 
watching the birds which have been attracted close to the 
house is great. Pleasures such as this are denied to city 
dwellers, and urban bird population in winter consists 
chiefly of sparrows, which are on bad terms with many 
of our native birds ; but let the country dweller once do 
this work, as many country dwellers have done, and he 
will wish to do it every winter. 
POSSESSION IN CLOSE SEASON. 
We give the full text of the decision of the New York 
Court of Appeals in the case of the People of the State 
of New York v. the Buffalo Fish Company, Lt. The 
point involved was the constitutionality of the law which 
forbids possession in the close season of fish imported 
from without the State. 
The action was brought by Protector Pond against the 
Buffalo Company for having had in possession pike, 
pickerel, bass and muscalonge in the close season. The 
defendant admitted the fact of possession, but set up in 
defense that the fish had been imported from Canada 
under provisions of the United States tariff laws ; that the 
State law conflicted with the United States law in regu- 
lating commerce in fish, and was null and void because 
infringing upon the interstate provisions of the Federal 
Constitution, and because it deprived the defendant of 
property without due process of law. To this answer the 
plaintiff demurred upon the ground that it was not 
sufficient to constitute a defense; the demurrer was over- 
ruled and an appeal was taken. The Appellate Division 
certified three questions, all substantially comprised in 
the first one, which was this; 
"Are the provisions of Section no of the Fisheries, 
Game and Forest Law, as amended by Chapter 109 of 
the Laws of 1898, prohibiting the possession of pike and 
pickerel during the close season for such fish in New York 
State, in conflict with any provisions of the State and 
Federal Constitution when applied to pike and pickerel 
imported from Canada, under the customs laws and regu- 
lations of the United States which have been duly com- 
plied with, or do the facts alleged in the defendant's 
answer constitute a defense to the first cause of action 
set forth in the complaint?" 
The court by a vote of four to three has sustained the 
defendant, and has answered the questions affirmatively. 
We print the decision in full as written by Justice O'Brien, 
giving also the dissenting opinion written by Justice Gray. 
This decision is in direct conflict with that in the 
Phelps-Racey case, which has long been an accepted 
precedent, not only in the State, but elsewhere, and has 
been cited with approval by the United States Supreme 
Court. 
We are not advised as to what further course the 
Forest, Fish and Game Commission may take in the case 
but we sincerely trust that they will not abandon it. The 
case has not yet been tried on its merits. We believe that 
it may yet be won. It must be won if the laws forbidding 
the sale of game and fish in close time shall amount to 
anything. The application of the principles involved is 
by no means limited to New York State. If this decision 
shall be held to be good law. it will mean the nullification, 
for instance, of the Massachusetts statute forbidding the 
sale of grouse and woodcock. It will give us open fish 
and game markets the year around for game imported into 
a State; and that will mean an open market for fish and 
game taken in the State. We have already pointed out 
that under such circum.stances as those wrought by the 
New York decision the clause of the Lacey Law which 
declares that game imported into a State shall be subject 
to the State law will afford no. protection. For if. as the 
court holds, the New York law does not apply because 
its application would be unconstitutional, it cannot be 
made to apply by act of Congress, because Congress can- 
not in any way by statute nV^r thr^ cnns'^fti.itional prin- 
ciples involved. If a law forbiddmg the possession and 
sale of imported fish is unconstitutional. Congress cannot 
make it constitutional by the ep^ctment pf l^\y, 
THE USUAL WAY. 
On Thursday, Nov. 15, in Mt. Vernon, Westchester 
county, on the very borders of New York, two deer were 
discovered by a man who was out gunning in the swamp. 
The deer were a buck and a fawn, and the gunner 
promptly killed the fawn, and returning to his home 
spread the news. At once all the population possessed of 
firearms turned out for the purpose of slaughtering the 
other deer, but at last acounts it had not been killed. 
Where the animals came from is as yet unknown. It 
was thought that they might have escaped from the park 
of the New York Zoological Society, but the authorities 
there deny that any deer have been lost. It is probable, 
however, that they may have escaped from the grounds 
of some individual possessing a private deer park. 
The ruthlessness with which such strays are killed when 
they make their appearance in unusual localities is only 
another evidence of the innate savagery of civilized man, 
It might be imagined that the appearance of these rare 
animals would be hailed with delight, that people would 
vie with each other in eodeavoring to protect them and 
to make life easy and agreeable for them. But this is 
seldom the case. If it is a moose turned out in the 
Adirondacks, where no wild ones have been seen for 
nearly forty yars, some butcher comes along and promptly 
puts the knife to its throat; an escaped deer in the very 
outskirts of New York city suffers a like fate, and in 
Connecticut a few weeks ago the appearance. of two deer 
called out a large number of hunters, although the law in 
that State absolutely protects deer. As long as so large 
a proportion of our population is so eager to destroy 
life, the prospects of game protection are not bright. 
SNAP SHOTS. 
In the' United States District Court at Fresno, Cal., 
last week. Judge Wellborn rendered a decision which 
held that the act of June 30, 1898, authorizing the Secre- 
tary of the Interior to make regulations for the protection 
of forest reserves is unconstitutional because, in effect, it 
delegates legislative power to an administrative officer. 
Just how far the decision if sustained will nullify the 
existing system of protection for the forest reserves can- 
not be determined without a more detailed report; but it 
is manifest that if the ruling has an application as eX' 
tensive as appears on the face of it, there is call for inj-" 
mediate action by Congress to provide regulations to pro-- 
tect the preserves. The regulations made by the Secre-- 
tary of the Interior presumably are wise, and necessary; 
and embodying wisdom and necessity, they should be 
given force by Congress. 
The system of delegating to the Secretary of the In- 
terior authority to legislate for the protection of public 
property has been in operation for years in the Yellow- 
stone National Park. By the act of 1894 it is provided 
that the Secretary of the Interior shall make such rules 
and regulations as he may deem necessary and proper 
for the management and care of the Park and for the 
protection of the property, especially for the preservation 
from injury or spoliation of all timber, mineral deposits, 
natural curiosities or wonderful objects, and for the 
protection of the animals and birds from capture or de- 
struction, or to prevent their being frightened or driven 
from the Park. And violation of any such rule or regu- 
lation is made a misdemeanor punishable by fine or im- 
prisonment. Thus it appears that the delegation of legis- 
lative power to an administrative officer with reference to 
public possessions is no new thing. 
When M. Menier, of Paris, bought the Island of Anti- 
costi to make a game preserve of it, there were living 
there a number of settlers whom M. Menier proceeded 
to dispossess. The eviction involved great hardship, 
("anadians interested in the fate of the Anticostians found 
new homes for them at Garland, in Manitoba, whither 
they went in the summer. A report now comes that they 
are in a pitiable condition ; eight have died in an epidemic 
of typhoid fever, and general destitution prevails. 
Minnesota has a five da3^s' open season for moose and 
caribou from Nov. 5 to I^v. 10, and although the game is 
reported to have increase|[. the season this year has been 
a pooj one. There was jio snow on the ground, very 
few moose were seen and the five days' hunting has 
little effect on the game supply. 
I 
