Forest and Stream 
A Weekly Journal of the Rod and Gun. 
CoPVRiGHT, 1901, BY FoREST AND STREAM PUBLISHING Co. 
Terms, $4 a Ybar. 10 Cts. a Copy. 
Six Months, $2. 
NEW YORK, SATURDAY, JUNE 15, 1901. 
f rVOL. LVI.— No. 24. 
"i No. 846 Broadway, New York 
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Fish have their various characters, defin'd 
Not more by form or color than by mind; 
The wary trout but few temptations hit. 
The perch an idiot, and the carp a wit. 
We cheat the finny fools, ourselves as blind, 
Fools, in our turn, are cheated by our kind! 
AN INTERESTING AND IMPORTANT CASE. 
The situation with respect to the notable seizure of 
illicit game in a New York cold storage warehouse by 
Protector Overton is this : The game protective authority 
and the Arctic Freezing Company have arranged to submit 
for adjudication an agreed statement of facts, and the case 
is to be carried from one court to another as expeditiously 
as may be practicable, until it shall have been determined 
by the United States Supreme Court. 
We have here quite the most interesting and important 
issue that could be made in relation to game protection. 
The point to be tested is the constitutionality of a law 
which prohibits in one State the possession in close season 
of game imported from another State. The New York 
case is of national interest and of national importance, 
because the principles involved are of national application. 
While the entire prohibition of the possiession and sale of 
game in the close season irrespective of the origin of the 
game is not universal throughout the country, it prevails 
so generally that it may be said to be a characteristic 
feature of game protection in the United States, just as it 
is abroad. It is a factor of such importance as to be 
absolutely essential to any effective scheme of game pro- 
tection. Every State, then, which has such a law and 
depends upon it to keep its game from the market in close 
time, is concerned quite as inuch as New York in the 
result of this test suit, since upon the outcome will depend 
the determination of the constitutionality of all such laws. 
It is understood that the cold storage people are putting 
their trust in the decision which was rendered last year by 
the New Y'ork Court of Appeals in the case of the People 
vs. the Buffalo Fish Company, Lt. 
By a popular misinterpretation the court was believed 
to have held in that decision that a statute forbidding the 
possession in close time of fish brought into the State from 
outside territory was invalid because in conflict with the 
commerce clause of the Federal Constitution. But the 
fact is that the court did not so decide. The prevailing 
opinion was written by Justice O'Brien, who based his 
decision upon two grounds. The first ground was, as he 
wrote referring to the section of the law under review : 
"What it means, and all it means, is to forbid any person 
to catch, kill or be possessed of the fish described from 
waters of this State. The word 'possession' obviously 
refers to those fish the catching or killing of which is pro- 
hibited— tliat is to say, fish in the waters of this State, and 
not those procured in a foreign country." 
As the second ground upon which his decision was 
based, he wrote that if the statute were conceded to apply 
to fish brought into the State, "then I think it is clearly 
invalid as in conflict with the commerce clause of the 
Federal Constitution." 
On the other hand, Justice Gray wrote a dissenting 
opinion, in which, as to the polqt of conflict with the 
Federal Constitution, he said: "There is no question of 
interstate or foreign commerce, in my opinion, but merely 
one of whether in the interest of the protection and preser- 
vation of game fishes the Legislature may not competently 
enact a statute so stringent in its provisions as to insure 
the accomplishment of the end in vimv, however it might 
result in apparent restriction of the liberty of the citizen." 
The court was composed of seven members. Of these 
Justices Parker and Landon concurred with Justice 
O'Brien as to both points; and Justice Werner concurred 
only in the first ground stated; while Justices Haight-and 
Martin concurred with Justice Gray in the dissenting 
opinion, Thus, of the seyen members of tlie co^irt, y[hi\^ 
a majority of four believed that in its wording the statute 
did not apply to imported game, and hence that the case 
should be dismissed, only three (or less than the ma- 
jority) agreed as to the ilnconstifutional nature of the law. 
Under these circumstances, as was pointed out in one of 
our recent issues by Willard S. Reed, of the Corning 
Bar, the Phelps vs. Racey decision is still the authority in 
New York; and that decision was that a statute which ex- 
pressly forbids the having in possession of game during 
the close season, regardless of where, when or how ob- 
tained, is valid. 
As we have said before, there is every reason for con- 
fidence that the prosecution of this present case, if it shall 
reach the Supreme Court, will result in establishing by that 
highest authority the constitutional integrity of this most 
important and essential feature of our game protective 
.'System. 
FOREST RESERVES AS GAME REFUGES, 
The first settlers in a new country are always careless 
of the natural resources spread out in such abundance all 
about them. As population grows denser people begin 
.slowly to realize the value of such resources and to see 
that they ought to be made the most of, because they add 
to the income of State, of landed proprietor or of public. 
The history of the settlements here in America has been 
one of reckless waste, but at last our eyes are beginning 
to be opened and we are coming to view these matters 
somewhat as people see them in the densely populated 
countries of the old world. For thirty years and more a 
few people have earnestly urged the importance of forest 
care and preservation, without apparently awakening the 
least public interest. But suddenly within the last five 
years the whole country has become aroused on this sub- 
ject. The Government is doing great work; State colleges 
of forestry are being started; the more important institu- 
tions of learning have established forestry schools; the 
profession of forester has become a recognized one, so 
much so that the growing boy in considering what calling 
he shall follow when he becomes a man, counts this voca- 
tion as one of the possibilities. 
As with the forests, so with the game and fish. These 
are recognized sources of income and are coming to be 
looked at from the intensely practical side. Maine has 
given more attention than any other State to the question 
of what its game may be worth to it, and it has been esti- 
mated that the annual visits of anglers and hunters bring 
naillions of dollars into the State. Vast sums are spent 
for the mere privilege of catching fish, or taking game, or 
traveling through the woods or over the waters, and spent 
by people who except for these attractions would stay at- 
home or would go elsewhere. What is true of Maine is 
true of the Adirondacks, where, according to the State 
authorities. 7,000 deer were killed last year in a tract of 
country only ninety miles in diameter. Of the visitors 
who killed these deer a large proportion came from other 
.States and practically all came from other counties. The 
Dominion of Canada realizes the money value of her game 
and fish, and strives to induce people to visit her woods 
and streams for the fishing and hunting. 
For every fish taken and for every bird or deer killed, 
the visitor pays a liberal price. His money is distributed 
among railroad companies, hotel keepers, merchants, 
guides and farmers. It is money that would not come 
to them except for the game and the fish which lure the 
visitor to the section. So 'long as these are abundant 
people will continue to come, and in ever increasing, num- 
bers, but so soon as the supply becomes exhausted the 
travel will stop. 
Evidently then it is worth -while to keep up the supply, 
and this fact is now well recognized. One of the readiest 
and simplest means of stocking a region, or of keeping 
up an existing supply, is the establishment of game refuges 
which shall be rigidly protected, and from which the sur- 
rounding country may be constantly restocked. We have 
an example of this on a very large scale in the Yellow- 
stone National Park, from which each season the elk pour 
out over the surrounding country in something like their 
old-time, abundance, so that only in the vicinity of this 
Park can good elk hunting now be had, . 
The game refuge idea is growing. Already it has been 
adopted in New York, and on a small scale in Connecticut, 
Pennsylvania is taking hold of it. A bill on the same line 
is shortly to }jf introduced in l^eyn Jersey. Canada has its 
state and national parks, where hunting is absolutely pro- 
hibited. 
Over almost all the vast regions west of the Missouri 
River game has been practically exterminated, and unless 
■ something is done this extermination will be as Complete 
within the next twenty-five years as that of the buffalo 
to-day. Such extermination can be indefinitely postponed 
by the establishment of extensive game refuges, where 
the different species shall be rigidly protected. 
We have already called attention to the desirability of 
constituting the forest reserves as such refuges. These 
reserves have already been withdrawn from settlement, 
and though established for a widely different purpose — one 
absolutely essential to the well-being of the arid West — 
they are well fitted for game refuges. Within one or other 
of these reserves every species of North American game 
may find a natural refuge, where in peace and quietness it 
may increase and multiply for all time. 
The setting aside such refuges falls within the province 
of the different State governments, and ought to appeal to 
them with especial force. Each year the number of people 
who wish to go into camp to shoot and fish increases, and 
if places were known in the mountains of the West where 
good fishing and hunting could certainly be had, thousands 
of men with their families would annually turn their faces 
westward who now go to the Adirondacks, or to Maine, or 
spend their time at some resort on the sea shore, by the 
Great Lakes, or by the rivers. The establishment of such 
game refuges and the consequent increase of game would 
bring millions of dollars into Wyoming, Montana, Colo- 
rado and California, and most of these dollars would find 
their way into the pockets of the local population. 
SNAP SHOTS. 
The hotel proprietors of Helena, Mont., have been ac- 
customed to serve game in close season quite as freely as 
do the hotel and restaurant men of New York. The new 
game law contains a section specially designed to stop 
this close season game traffic. One of the most ardent 
advocates of the new statute was a Helena hotel man, and 
some amusement has been had over the fact that this 
particular person was the first one to be caught up under 
it. State Game Warden Scott lives at this hotel, and when 
he saw wild ducks on the table after the season for them 
had expired he promptly invited his host to repair to the 
nearest justice and settle. The local paper in reporting 
the case says that the ducks "were shipped in from St. 
Paul, and that is where the Lacey Act concerning the 
killing of game came into play. Sec. 5 of that act provides 
that 'the dead bodies of any wild game animals or game 
or song birds transported into any State or Territory, or 
remaining therein for use, consumption, sale or storage 
therein, shall upon arrival in such State or Territory be 
subject to the operation and effect of the laws of such 
State or Territory enacted in the exercise of its police 
powers, to the same extent and in the same manner as 
though such animals and birds had been produced in such 
State or Territory, and shall not be exempt therefrom 
by reason of being introduced therein in original package 
or otherwise.' " But the Lacey Act had no bearing on the 
Helena case. As we have pointed out before this, the 
application of a State law to imported game depends upon 
the wording of the statute. If the text of the State law 
is so comprehensive as to cover imported game, the law 
applies to imported game ; if the State law does not cover 
imported game, such game may not be made subject to it 
by act of Congress. Congress may control game only so 
long as the game remains a subject of interstate com- 
merce; when it ceases to be an article of interstate com- 
merce it immediately thereupon comes under control of 
the State. 
Two recent cases of prosecution for Sabbath breaking, 
in Yonkers, N. Y., have directed attention to that pro- 
vision of the penal code which forbids fishing on Sunday, 
The law is altogether a dead-letter; it is put into force' 
once in a while as a spite naeasure; but tens of thousands 
of men go fishing on every pleasant summer Sunday, and 
no one ever thinks of interfering withi them as Sabbath 
breakers. The fishitig statute is one ' which should be 
repealed, for the simple reason that as a dead-letter it 
breeds contempt for other fishing laws which are not and 
should not be dead-letters. 
