Forest and Stream 
A Weekly Journal of the Rod and Gun. 
Copyright, 1902, by Forest and Stream Publishing Co. 
Terms, $4 a Year. 10 Ore. a Copy. 
Six Months, $8. 
NEW YORK, SATURDAY, FEBRUARY 1, 1902, 
( VOL. LVIIL— No. 5. 
I No. 84G Broadway, New York. 
AN ASTONISHING SITUATION. 
The demurrer of the defendants in the case of the 
People vs. Bookman, which is the New York game seizure 
case, has been overruled on all points save as to those 
counts which are concerned with the possession of plover 
and other birds named in Section 30 of the game law. Pos- 
session of these species Justice O'Gorman holds does not 
constitute an offense under the act. The possession of 
the other game discovered in the Arctic Freezer Com- 
pany's vaults, woodcock, grouse, quail, venison, etc., the 
court finds is prima facie evidence that the possessor has 
violated the law; and the burden is then cast upon him 
of proving facts to show that the possession is legal. The 
effect of this ruling is to decrease by the sum of $825,000 
the amount of penalty which may be recovered. The sec- 
tion of the law relating to plover and the other birds con- 
cerned reads : 
Sec. 30. Plover and other Birds [as amended 1901]. — The close 
season for Wilson's (called English) snipe, yellow legs, plover, rail, 
mud-hen, gallinulc, surf-bird, curlew, water-chicken, jack snipe, 
bay snipe or shore bird, shall be from May 1 to Aug. 31, both in- 
clusive. 
There is here no provision whatever respecting pos- 
session in the close season. The term "close season," as 
elsewhere defined in the law, relates only to the taking of 
game, not to its possession. With respect to other species 
there are specific prohibitions against possession in close 
season; but the law says nothing whatever specifically as 
to the possession of plover, snipe, etc. 
For this reason the State sought to recover from the 
Arctic Freezer Company for the possession of birds of this 
species by invoking Section 33, which provides : 
Sec. 33. Certain Wild Birds Protected [as amended 1901].— Wild 
birds other than the English sparrow, crow, hawk, crane, raven, 
crow-blackbird, common blackbird, kingfisher, and birds for which 
there is no open season, shall not be taken or possessed at any 
time, dead or alive, except under the authority of a certificate 
issued under this act. No part of the plumage, skin or body of any 
bird protected by this section shall be sold or had in possession 
for sale. 
That part of the complaint which was based upon this 
section was dismissed by Justice O'Gorman, who wrote of 
it: "In order to create an offense under Section 33 it 
must appear not only that the birds are wild birds, but 
also that they are birds for which there is no open season. 
Therefore, if they are birds having an open season, or if 
there be no express provision that there shall be no open 
season, the taking or possession of them constitutes no 
offense." With all deference to the opinion of the Court, 
we are constrained to express our conviction that the in- 
terpretation which Justice O'Gorman has put upon Sec- 
tion 33 is one which it will not bear. Let us examine it. 
Prior to the revision of 1901 the section read : 
Wild birds other than the English sparrow, crow, hawk, crane, 
raven, crow-blackbird, common blackbird, kingfisher, and birds 
for which there is an open season, shall not be taken or possessed 
at any time, dead or alive, except under the authority of a certifi- 
cate issued under this act. No part of the plumage, skin or body 
of any bird protected by this section shall be sold or had in pos- 
sssion for sale. 
As it then read the English sparrow and other named 
birds and "birds for which there is an open season," 
namely, game birds, were exempted from the application 
of the section. 
But as amended in 1001, the term "an open season" was 
altered to read "no open season," so that the section 
reads (parentheses ours) : 
Sec. 33 [as amended 1901].— Wild birds (other than the English 
sparrow, crow, hawk, crane, raven, crow-blackbird, common black- 
bird, kingfisher, and birds for which there is no open season), shall 
not be taken or possessed at any time, dead or alive, except under 
the authority of a certificate issued under this act. No part of 
the plumage, skin or body of any bird protected by this section 
shall be sold or had in possession for sale. 
In other words, the provision is to the effect that wild 
birds may not be taken except under the authority of a 
certificate, nor sold nor possessed for sale ; but the birds 
excepted from the prohibition are the English sparrow, 
crow, hawk, etc., and "birds for which there is no open 
season." 
The "birds for which there is no open season" are the 
song and insectivorous birds. They are not subject to the 
prohibition of the section. There is no law whatever in 
New York State to protect song birds. 
The birds for which there is an open season are the 
game birds; and they are therefore included in the cate- 1 
gory of "wild birds" whicf} "sha]| fiot be taken or pos- 
sessed at any time, dead or alive, except under the author- 
ity of a certificate issued under this act," nor "sold or had 
in possession for sale." 
In other words, under this section of the New York 
law as it stands to-day, game birds may not be killed un- 
less the shooter has a naturalist's permit. 
Now as to the particular species of birds concerned in 
the Arctic Freezer Company's case, namely, plover and 
snipe, we cannot understand how Justice O'Gorman's in- 
terpretation of the section can be maintained. His ruling 
that "in order to create an offense under Section 33 it 
must appear not only that the birds are wild birds, but 
also that they are birds for which there is no open sea- 
son," is precisely the reverse of what the statute itself 
declares. The "birds for which there is no open season" 
are the very ones exempted from the operation of the 
act. The law says "wild birds other than * * * birds 
for which there is no open season, shall not be taken," etc. 
This is equivalent to saying that "birds for which there 
is an open season shall not be taken." There is an open 
season for plover and snipe ; these birds therefore do 
come under the prohibition in Section 33, and a cold 
storage concern which has them in possession for sale is 
liable to the penalty. 
As it now stands, the New York law permits without 
restriction the killing of all birds which are not game 
birds, and permits the killing of game birds only under 
authority of a naturalist's license. 
This is an astonishing situation. The same conditions 
held in March of 1900 when Senator Brown had completed 
his herculean and stupid revision of the game code. The 
Forest and Stream called attention to the situation, and 
it was remedied. The first action of the game committees 
of the present Legislature should be to correct the blunder 
by a simple' change of the word "no" to "an." 
COL. THURSTON'S OPPORTUNITY. 
Col. N. B. Thurston, who is widely known for his 
energetic work at the head of the Department of Rifle 
Marksmanship in the New York State Guard, and who is 
now the official head of rifle practice in this country as 
the President of the National Rifle Association, has re- 
cently taken upon himself the duties of Deputy Commis- 
sioner of the Police Force of Greater New York. It 
is a post which brings him before the public in many ways, 
but there is one phase of his many-sided work which 
should be particularly agreeable to this popular National 
Guardsman. He has now a conspicuous opportunity to 
put to use his knowledge as an instructor in the handling 
of firearms. 
The police force of the metropolis reaches a total of 
about 7,000 men. It is an armed civic guard, for each 
member is required to carry, while on duty, a revolver, 
and on certain occasions he is empowered and required to 
make use of it. Ask any citizen for his opinion of a 
policeman as a marksman, and the reply would be a smile 
of derision. Almost every day, tucked away in the comic 
column of any metropolitan journal, may be found ,a 
report of a performance of the day before where some 
stray dog, having been declared "mad," was, of course, a 
subject for immediate execution. The general practice 
is for every policeman within hail to empty his revolver 
at the four-legged target, and as many misses as shots 
having been scored, the dog is disposed of with a club. 
Too often the account tells of some citizen being hit 
with one of the wild bullets. Not a few human beings 
have lost their lives in this way. Shot down in the public 
streets, through the incompetence of paid guardians, with 
blame really resting upon the superior officers. 
This is the situation which faces Col. Thurston. It is 
not a matter of choice with him. The by-laws of the 
department provide for a system of firing drill. The force 
is fortunate in having on its rolls one of the best revolver 
shots in this countrv. Entirely apart from his police 
duties, Sergeant Petty has won a place in the front rank 
as an amateur marksman. Some years ago he was given 
a partial opportunity to find out how needful was some 
system of drill in police marksmanship. Out of a pos- 
sible 75 at ten yards, he found the men could average 
15, and this with ample time to aim at a fixed target. He 
got the average up to 30 at fifteen yards, and then came 
a chief who squelched the whole system with a single 
"Wot fell." 
At present there is absolutely nothing doing in the 
way of practice. The men are getting so careless that 
any sort of an old blunderbuss or pigmy makeshift is 
substituted for the weapon officially designated. The cur- 
rent plan of hours of police duty makes it very easy to 
put in vogue a simple system of aiming drill, but so far 
Col. Thurston has issued no orders to that end. In this 
matter there seems no choice between the new reform 
regime and the old slovenly police control. 
NOVA SCOTIA'S FOOLISH LICENSE. 
A well-known writer who has done more than any 
other one man perhaps to popularize Nova Scotia's waters 
as resorts for anglers, said in conversation the other day, 
"That action of the Nova Scotia authorities in the Town- 
send case has made many of my friends who have been 
going to Nova Scotia with their families for the summer 
resolve to go somewhere else this year. They consider 
Mr. Townsend's treatment an outrage; and they will not 
subject themselves to the possibility of like treatment, nor 
will they pay the license. They will take their families 
somewhere else." 
We quote this — which was not spoken with a view to 
publication — not for argumentative purposes, but as a 
significant indication of the feeling aroused by the course 
which the fishery officials pursued in the Townsend case. 
The prevailing opinion among American anglers is that, 
considered from a financial standpoint, and as a business 
proposition, the Nova Scotia angling license exaction is 
likely to entail a loss far beyond any income for licenses. 
Fishing is not everything with the visitor who takes his 
family into the Province for the summer; but it is so 
much of a factor as to determine one's choice of loca- 
tion, and the imposition of a tax, where fishing has here- 
tofore always been free, will keep people away. This 
reluctance to pay the inconsiderable fee may appear very 
foolish, and actually may be very foolish, but it finds 
its seat in that trait of human nature which resents im- 
position, real or fancied; and the point for the Nova 
Scotia authorities to consider is not the justice or the 
injustice of the license scheme as a matter of statute law, 
but the actual working of it in practice as affecting the 
revenues Nova Scotians derive from visiting Americans. 
If the purpose of the license tax was to raise money — ■ 
and presumably this was the purpose — it is one which will 
not be accomplished. 
SNAP SHOTS. 
We publish elsewhere from Commissioner Carleton of 
Maine a disclaimer of responsibility for the $15,000,000 
of Maine's revenue from her visitors. It appears, how- 
ever, that Commissioner Carleton did put forward this 
estimate in the meeting, and if he had not intended the 
figures to be accepted as reasonable ones, the time for 
him to have said so was there and then. Moreover, $15,- 
000,000 or $4,000,000, the spirit which whines over the 
price of a camping party's potatoes lost to Maine farmers 
is so niggardly that we refuse to accept it as representa- 
. tive of the Maine spirit. 
H 
We gave in our issue of Jan. 4 the text of the two bills 
prepared by the Protective League of Salt Water Fisher- 
men relative to pound nets and purse nets in waters ad- 
jacent to New York. These measures embody the fruit 
of a long study of the problem of conserving the salt- 
water fishes, and should have the support of the Legisla- 
ture. The first bill has not yet been introduced at Al- 
bany ; the second was introduced by Senator Plunkitt, and 
is Senate Int. 73. 
*, 
The Long Island newspapers have been having some 
fun over a new game which goes by the name of "Over- 
ton chasing the eagle." It appears that whenever Pro- 
tector Overton has a leisure day he spends it in chasing 
up the latest eagle slayer. Eagles have been numerous 
in Long Island this winter, and there appears to be an 
irresistible attraction about an eagle for the Long Islander 
with a gun. Five or six eagles have been shot, and the 
five or six shooters have paid their fines; and now Pro- 
tector Overton has publicly announced that owing to the 
diminished supply the price of Long Island eagles ha§ 
been advanced. 
