412 
FOREST AND STREAM' 
[Nov. 24, 1900. 
legislator who would protect the forests of this State 
by prohibiting the importation of lumber or timber from 
Canada, or from other States, would be rated as a 
visionary theorist, but in a certain degree that is the prin- 
ciple upon which the argument for the People m this case 
proceeds for the protection of fish and game. What is 
true with respect to the forests is equaly true of every 
other natural product of the soil or of the waters of the 
State, so that it is plain that the plaintiff's theory of this 
case when put into complete operation all around the 
boundaries of the State, would, instead of protecting fish 
and game, go far to exterminate both. 
But all these considerations are subordinate and col- 
lateral to the main question, and when they are all weighed 
and examined we are brought back again to the real situa- 
tion which the case presents. Admitting, for the purposes 
of the argument, that the statute in question means just 
what the plaintiff's counsel claims for it, the important 
fact still remains that Congress has permitted the de- 
fendant to import fresh fish upon payment of certain 
duties. It has paid the duties and complied with the 
Federal regulations, but when the article is brought here 
the State steps in and forbids the defendant to have rt in 
its possession, and, of course, forbids the sale. This 
creates a direct conflict between the regulations of Con- 
gress and those of the State, and consequently the latter 
must yield to the former. The State had no power to 
extend its police legislation to such a transaction, and, 
of course, had no power to forbid what Congress had 
expressly permitted. -, . , 
The case, in my opinion, was correctly decided by the 
courts below, and the judgment should be affirmed. 
The Dissenting Opinion. 
Gray, J. (dissenting). The questions certified for our 
decision are questions of law, which were raised below by 
the demurrer to the defenses interposed in the action. 
They are these : Are the facts that these fish were law- 
fully taken in the Dominion of Canada and that they were 
purchased there by the defendant and by it imported into 
the State of New York, upon payment of the duties fixed 
pursuant to the United States tariff laws, a good answer 
10 the claim of the People that the Fisheries Law has been 
violated by having such fish in possession and is the State 
statute, for inhibiting the possession during the close 
season of this State, in conflict with the Federal Con- 
stitution, or with the Constitution of this State? 
It is not, nor can it be, seriously contended, as I think, 
that the law is in conflict with any of the provisions of the 
Constitution of the State. The case of Phelps v. Racey 
(60 N. Y. 10) should be conclusive upon that point; 
whatever may be said of it upon the Federal question 
raised. The Federal question is whether the statute, in the 
particular feature in question, violates, or infringes upon, 
the provisions of the Constitution of the United States, 
which authorize Congress to regulate commerce with 
foreign nations and between the States. The defendant's 
contention upon that ground has been sustained below. 
The theory of Mr. Justice Lambert's opinion at the Trial 
Term, which was adopted by the justices of the Appellate 
Division, is, as I apprehend it, that in making unlawful 
the possession of property, which has been imported under 
the sanction of the Federal tariff laws, the enactment of 
those provisions of the Fisheries statute by the Legisla- 
ture conflicted with the power vested in Congress under 
the commerce clause . of the Federal Constitution re- 
ferred to. 
It was, also, observed by the learned justice, in his 
opinion, that "the object of the statute is to protect the 
game fishes in the waters of the State, and that object is 
not promoted by depriving citizens of their property in 
fish which have been caught and killed outside of the 
jurisdiction of the State, and which have become com- 
ponent parts of commerce, and the law cannot, therefore, 
be sustained as an exercise of the police power except as it 
deals with those fish which may have been taken within 
the jurisdiction of the State." Prior to this decision of 
the learned court below. Phelps v. Racey was regarded as 
settling the question of the legislative power to do just 
what has been done in the law now attacked. That was 
an action which was brought under the Game Law of 
187 1, to recover penalties against the defendant for having 
in possession, contrary to the statute, certain game birds 
during the close season. The defense was that the de- 
fendant became possessed of them during the open season, 
or they were received from the State of Minnesota or 
Illinois, where the kilHng at the time was lawful. Thus 
the situation was the same as in the present case, so far 
as it presented the legal questions. It was there held 
that the fact alleged that the game "was either killed 
Avithin the lawful period, or brought from another State 
where the killing was lawful" constituted no defense; 
inasmuch as the penalty was denounced against the selling 
or possession, irrespective of the time or place of killing. 
The objection of a want of power in the Legislature to 
pass the act was held to be untenable and it was said that 
the measures best adapted for the protection and the 
preservation of game "are for the Legislature to deter- 
mine and the courts can not review its discretion. If the 
regulations operate, in any respect, unjustly or oppres- 
sively, the proper remedy must be applied by that body" ; 
and the provisions of the act, though seemingl}' stringent 
and severe, were not "foreign to the objects sought to be 
attained, or outside of the wide discretion vested in the 
Legislature." In speaking of the argument that the law 
violated the commerce clause of the Federal Constitution, 
Chief Judge Church deemed it unnecessary to consider 
"how far the exercise of the power of Congress under 
the provision would interfere with the authority of the 
State to pass game laws, and regulate and prohibit the 
sale and possession of game either as a sanitary measure 
or for its protection as an article of food. It will suffice 
for this case that the statute does not conflict with any 
law which Congress has passed on the subject." The 
authority of this case upon the constitutional right to 
enact such laws has been widely recognized in the State 
courts, where similar statutory provisions were assailed, 
and among other cases might he cited those of Magner 
V. TJie People (g/i 111. 320) ; Conimonzvealth v. Savage 
Ct5S Mass. 278) ; State v. Rodman (^8 Minn. 393), and 
Roth V. State (7 Ohio C. C. 62). In England the case of 
Whitehead v. Smithers (L. R. [2 Com. PI. Div.] 553) 
may be referred to as in point ; where Chief Justice Cole- 
fid^e observed of the act for the protection of wild fowl, 
passed in 1876, that "the object is to prevent British wild 
fowl from being improperly killed and sold under pre- 
tense of their being imported from abroad." (And see 
Price V. Bradley, L. R. [16 Q. B. Div.] 148, upon the 
Fresh Water Fisheries Act.) 
In the court below, Phelps v. Racey was deemed to be 
no longer controlling, for the reason that its principles 
have been '"overruled by subsequent judicial authority." 
The reference is to that part of the opinion which suggests 
the proposition that, in the absence of the enactment of a 
law by Congress, the States may regulate commerce among 
themselves. This doctrine, though supported by author- 
ity at the time {Pierce v. New Hampshire, 5 How. [U. 
S.] 504), would seem to have been overruled by later 
cases (Leisy v. Hardin, 135 U. S. 100; and SchoUenberger 
V. Pennsylvania, 171 ib. l) ; which hold that laws inhibit- 
ing the receipt of an imported commodity, or its disposi- 
tion, amount essentially to a regulation of commerce with 
foreign nations, or among the States. I consider, how- 
ever, that the Fisheries Law presents no conflict with the 
commerce clause of the Federal Constitution and that it 
is purely a governmental regulation, within the legiti- 
mate exercise of the police power of the State, relating to 
a matter essentially of internal policy, as affected by a 
common public interest. It was quite unnecessary to the 
decision of Phelps v. Racey that Cliief Judge Church 
should have expressed himself as he did upon the question 
of the bearing of the statute upon the commerce clause of . 
the Federal Constitution, and it did not prevent tTie 
decision from being controlling upon the main question. 
There is no question of interstate or foreign commerce, 
in my opinion, but, merely, one of whether, in the in- 
terest of the protection and preservation of game fishes, 
the Legislature may not competently enact a statute^ so 
stringent in its provisions as to insure the accomplish- 
ment of the end in view ; however, it might result in an 
apparent restriction of the liberty of the citizen. Com- 
pared with the legislation which was sustained in the grain 
elevator cases (People v. Budd, 117 N. Y. i, affirmed in 
143 U. S. 517), where the right of the Legislature to fix 
the maximum charge which a person might make, in his 
own business, for elevating grain, and to limit the charge 
for shoveling to the actual cost, was upheld upon the 
theory that the business was one which, by reason of its 
magnitude and character, was affected by a public interest, 
this statute is mild, indeed. The exercise of the police 
power, which is necessarily vested in the State Govern- 
ment for the proper regulation of matters which con- 
cern the well-being and prosperity of the community, with- 
in constitutional limits, rests in the wise discretion of the 
Legislature. When its operation is in the direction of so 
regulating the use of private property, or of so restrain- 
ing personal action, as to secure, or to tend to, the com- 
fort and welfare of the community, no constitutional 
guaranty is violated. (People v. Ewer, 141 N. Y. 129.) 
It is implied in the social compact that, in matters of 
public concern, the interest of the individual shall always 
yield to that of the public. The Legislature is not the 
final judge as to what is a proper exercise of the police 
power and its acts in that direction are subject to review 
in the courts; but, where a public and beneficial purpose 
is evident, the courts will not substitute their judgment 
for that of the legislative body. The remedy must be 
found in an appeal to the legislative wisdom. 
In Geer v. Connecticut (161 U. S. 519), a case arising 
under the Connecticut statute in relation to game birds, it 
was said that "the right to preserve game flows from the 
undoubted existence in the State of a police power to that 
end, which may be none the less efficiently called into 
play, because by doing so interstate commerce may be 
remotely and indirectly affected (citing cases). Indeed, 
the source of the police power as to game birds =i= * * 
flows from the duty of the State to preserve for its people 
a valuable food supply." (Citing Phelps v. Racey and 
other cases.) In Lawton v. Steele (152 U. S. 133, affirm- 
ing our decision in 119 N. Y. 226), the police power of 
the State was discussed and it was said that "the preser- 
vation of game and fish has always been treated as within 
the proper domain of the police power," and that "the 
State may interfere whenever the public interests demand 
it and in this particular a larger discretion is necessarily 
vested in the Legislature, to determine, not only what the 
public interests require, but what measures are necessary 
for the protection of such interests." (Citing cases.) 
"It must appear," the opinion holds "iirst, that the in- 
terests of the public generally, as distinguished from 
those of a particular class, require such interference ; and 
second, that the measures are reasonably necessary for the 
accomplishment of the purpose and not unduly oppressive 
upon individuals." 
The object of this statute was to protect and preserve 
certain game fishes during the breeding season ; an ob- 
ject, manifestly, in which the people of the State may be 
presumed to be more or less keenly interested and which 
is recognized, as Judge Church observed, in all civilized 
countries. The purpose is to protect certain fishes within 
our jurisdiction, with no reference to those of other 
States or countries. If they may be brought into the 
State within the close season here, as articles of commerce 
protected by United States laws and, therefore, placed 
lieyond the reach of the State laws declaring and regu- 
lating an internal policy, the result Avould be to facilitate 
evasions of the law and to make detection difficult, if not 
impossible. The general tendencies of human nature, it 
might, not inappropriately, be observed, are such as to 
make necessary so strict a law as to render obedience to 
the mandate certain. The statute aims at preventing game 
fishes from being unlawfully taken and exterminated, and 
any regulation which' tends to secure that aim should be 
regarded as a legitimate and fair exercise of the police 
power. 
Not an arbitrary, but a wise and politic, purpose is evi- 
dent in this statutory regulation, touching as it does the 
interests of the people in a form of food supply, as in a 
form of sport. I cannot understand its being likened to 
such legislation as was condemned in People v. Hawkins 
(157 N. Y. i). There the act required all goods made by 
contract labor to be labeled "convict made," when pos- 
sessed and offered for sale, and it was held to be repug- 
nant to the commerce clause of the Federal Constitution ; 
because "a regulation of commerce by means of which 
the value of merchandise made in another State was to be 
depressed, or its sale prohibited." It_ was a restriction 
upon the freedom of commerce to permit the same articles 
to be put upon the market freely, if made in factories; 
when, if made in a prison in another State, a citizen, 
having lawfully purchased them, could not expose them 
for sale without branding or labeling them as "convict 
made." 
Nor can I perceive that the doctrine of the oleomar- 
garine cases is applicable. (SchoUenberger v. Pennsyl- 
vania, 171 U. S. I.) There is a clear distinction between 
legislation which discriminates with reference to a manu- 
factured food product, not impure nor unhealthful, and 
legislation which seeks to preserve the game fishes within 
the waters of the State, either as a natural article of food 
supply or as a form of public sport. In the one case 
there is an interference with commerce, as commerce; in 
the other case, commerce is not aimed at, but the preser- 
vation from extermination of the People's property in 
game fishes. In the one case there is interference with 
commercial dealing in a manufactured product, which, 
not unreasonably, may be said to lack justification in 
those ordinarily recognized principles upon which the 
police power of the State is properly exercised; while in 
the other case the preservation from extermination of the 
game fishes within the jurisdiction of the State reasonably 
commends itself as legislation in the interest of preserv- 
ing to the People a valuable natural and common food 
supply, which is deemed in danger of being destroyed and 
which it is, therefore, the duty of the State to prevent 
b}' the exercise of its undoubted police power. The 
SchoUenberger case dealt with the prohibition by legisla- 
tion of oleomargarine as a law "which prevents the in- 
troduction of a perfectly healthful commodity, merely for 
the purpose of in that way more easily preventing an 
adulterated and possibly injurious article from being in- 
troduced. We do not think this is a fair exercise of 
legislative discretion, when applied to the article in ques- 
tion." (Per Peckham, J., at p. iS-) 
I think if importations may be excluded which might 
affect the public health, that they may be excluded if 
tending to endanger the enforcement of a law intended 
to protect and to preserve the People's property rights 
in game and fishes. There is no danger that legislative 
encroachments upon individual rights will be encouraged 
by such a decision. The presumption which obtains in 
favor of the constitutionality of legislative acts is not 
met here by any reasonable objection. The only, and the 
evident, object of the statute is to protect the garne fishes 
mentioned during a season allowed for breeding and 
development and must surely be within the admitted range 
of the duties of State government. 
It should be observed, in connection with the views 
expressed, that by Section 190 of the Code of Civil Pro- 
cedure our jurisdiction to review is confined to the ques- 
tions certified. In this case they demand of the court 
whether the statute they refer to is in conflict with any 
provision of the State or the Federal Constitution. Other 
questions are not here ; which might be suggested as 
affecting the construction of the statute in its effect upon 
some exercise of private rights, in one way or another. 
I think that the judgment should be reversed and that 
the questions certified should be answered in the negative. 
Parker, Ch. J., and Landon, J., concur with O'Brien, 
J., and Werner, J., concurs on first ground stated in 
opinion; Haight and Martin, JJ., concur with Gray, J., 
for reversal. 
Judgment affirmed and questions certified answered in 
the affirmative. 
The Salmon^s Tei-m of Life* 
What is the natural term of life among salmon? asks 
an English writer. Fishculturists have settled all about 
their birth, babyhood and arrival at maturity; but it yet 
remains for some one to answer the question with which 
I started this note. That pike attain to a great age has 
been placed beyond all doubt. It is not believed, in the 
present day, that the legendary pike, 267 years old, ever 
had any existence. Two or three huge pike, bearing en- 
gnaA'-ed rings, have been found dead; but there always 
were practical jokers, and the legends on these rings can 
be taken cum grano salis. The size of fish is largely in- 
fluenced by food supply, and mere weight is, therefore, no 
real guide to age. The only authenicated captures of 
old salmon, marked in infancy by rings or fin-cuttings, 
give us nothing older than ten or twelve years. These 
marked salmon were all approximately 30 pounds in 
weight, and we may therefore assume that they had 
attained their maximum growth. How much_ longer 
would they live— barring accidents? I have discussed 
this question with scores of intelligent men who have 
been netting and trapping salmon all their lives, and the 
consensus of opinion put fifteen years as the extreme 
limit of a salmon's life. In that period he might become 
a 50-pounder, but there are giants and pigmies among 
salmon as among men. The size of the river of their 
birth bears some relation to the size of the salmon them- 
selves; and the patriarch of a small stream may die of old 
age without reaching 20 pounds weight. Pike undoubt- 
edly live to the age of forty or fifty years at the outside, 
but their lives are somnolent by comparison with the 
arduous strife and struggles 'of a salmon's existence. 
Onondaga Anglers. 
At the regular monthly meeting of the Anglers' As- 
sociation, held in Syracuse, N. Y., last week, the report 
of the fish and game protector was read. A summary 
of his work for the past two months showed a total of 
forty-eight nets of various kinds captured and destroyed. 
These nets included traps, fykes, seines and gill nets. 
They were taken from Oneida Lake, Onondaga Lake 
and the Seneca and Oneida rivers. Just at present the 
pirates are very active, and it is proposed to continue 
the work with unabated vigor until the waters are frozen 
over. A proposition was made to employ a second pro- 
tector, and if the funds of the Association permit, this 
will probably be done. 
The folloAving were elected members: James M. Bel- 
den. Michael Whelan, L. C. Smith, E, M. Brown and 
A. A. Kempter. The following committee of four was 
appointed to solicit members: John H. Forey, R. V. 
Miller, S. T. Betts, M. J. French and A. _H. Schwartz. 
A committee was also appointed to wait on the Board 
of Supervisors and ask for an appropriation for the use 
of the Association during the coming season. 
John H. Forejr and C. H. Mowry were elected dele- 
gates, and George B. A¥ood and L. S. Morgan alternates 
to tl^e annual convention of thf; New Yorlc LeagtJe. 
I 
