Forest and Stream. 
A Weekly Journal of the Rod. and Gun. 
Copyright, 1903. bv Forest and Stream Publbhino Co. 
NEW YORK, SATURDAY, FEBRUARY 21, 1903, 
Terms, $4 a Year. 10 Cts. a Copy 
Six Months, $2. 
j VOL. LX.— No. 8. 
[ No. 846 Broadway, New York 
THE COLD STORAGE CASE. 
The New York Court of Appeals rendered on February 
II its long looked for finding in the famous cold storage 
case, and the decision goes to sustain the lower court on 
all the general counts. The case is familiar, but we may 
outline the main features to make intelligible the decision 
just rendered. 
The action was brought in August. 1901, by the Chief 
Gs me Protector against Jacob V. Bootman and Howard R. 
Robinson, constituting the Arctic Freezer Company, to 
recover penalties for the illegal possession of a pro- 
digious quantity of game found in their vaults in a cold 
storage warehouse in New York City bj' Protector J. E. 
OVerton. The cause of action was based on nineteen 
separate and distinct counts for unlawfully and know- 
ingly possessing game out of season, as follows: (i) 
496 grouse and 236 quail, entailing a penalty of $18,360; 
(2) 371 grouse and 741 quail, penalty $27,860; (3) 491 
grouse and 37 quail, penalty $13,260; (4) 96 woodcock, 
1,168 grouse, 1,030 quail, penalty $57,410; (5) 1,563 
grouse, 425 quail, penalty $47,260; (6) 3.040 grouse, 1,318 
quail, penalty $84,225; (7) 422 grouse, 1,048 quail, penalty 
$36,810; (8) 4 ducks, penalty $160; (9) 441 ducks, penalty 
$11,085; (to) 432 ducks, penalty $10,860 ; (11) 400 ducks, 
penalty $10,060; (12) 338 ducks, penalty $9,010; (13) 141 
ducks, penalty $3,585; (14) 808 plover, penalty $20,260; 
(15) 876 English snipe, 602 plover, 1,416 snow buntings, 
96 snipe, penalty $74,810; (16) 288 reed birds, 3,630 
plover, 1,152 snow buntings, penalty $126,935; (i?) 1,336 
snipe, 3,168 sandpipers, penalty $112,660; (18) 720 reed 
birds, 5.760 snow buntings, 1.439 sandpipers, 488 yellow 
legs, 150 plover, penalty $217,085 ; ( 19) 3,658 plover, 3,000 
sandpipers, 4,800 snipe, 300 yellow legs, penalty $294,110. 
Judgment was demanded on the several counts against the 
defendant in the sum of $1,168,315 and costs. 
The State was represented by the firm of Black, Olcott, 
Gruber and Bonynge, and the cold storage company by 
Julius Offenbach and Louis Marsh. 
The attorneys for the accused demurred on the ground 
that the complaint did not state a cause of action, and 
also that the court had no jurisdiction. The case was 
tried before Mr. Justice O'Gorman in the Supreme Court 
of New York County, who held in favor of the accused 
on the counts from 14 to 19 inclusive on the ground that 
Sections 30 and 33 of the game law could not be recon- 
ciled. This, if sustained, released the plover, snow bunt- 
ing, reed birds and snipe as factors in the case. He de- 
c'ded also that the game law extends over the entire 
State; that an offender against the law is liable both crim- 
inally and civilly, and that possession during the forbid- 
den season is prima facie evidence of violation of the law. 
Both the State and the defendant thereupon appealed to 
the Appellate Division of the Supreme Court, which 
affirmed Justice O'Gorman's decision. An appeal was then 
t.-iken by both parties to the Court of Appeals ; the attor- 
neys for the people against the findings of the Court as 
to the interpretation of Sections 30 and 33, and the attor- 
neys for the accused against those portions of the de- 
cision which found the cold storage company guilty of 
violations of the law, the questions referred for deter- 
mination being these: 
First. Do counts I. to XHI., both inclusive, of the 
amended complaint state facts sufficient to constitute a 
cause of action? 
Second. Is the plaintiff entitled to maintain a civil ac- 
tion for the recovery of penalties under Section 39 of the 
Forest, Fish and Game Law. constituting Chapter 31 of 
tlie General Laws of the State of New York, for the viola- 
tion .of any of the provisions of Article H. of said Act? 
Third. Is the amended complaint defective because it 
is not therein alleged that the various birds for the pos- 
session of which the defendants are sought to be charged 
with penalties were taken or killed within the boundaries 
the State of New York? 
Fourth. Are facts sufficient to constitute a cause of 
action stated in counts numbered from XIV. to XIX., 
both inclusive, of the amended complaint, or in either of 
said counts? 
Fifth. Can the defendants be made liable in this action 
u.ndcr Section 33 of the Forest, Fish and Game Law, as 
amended by Chapter 91 of the Laws of 1901, and Section 
,30 of said Act, by reason of the possession by them, as 
alleged in counts XIV. to XIX., both inclusive, of 'the 
amended complaint, of the birds described in said several 
ppnnts? ■ . ■ 
The Court of Appeals has affirmed the judgment of 
the lower courts, answering the questions first and second 
affirmatively, and third, fourth and fifth negatively. It 
is held : 
1. That the State is entitled to maintain an action for 
the recovery of the penalties embraced in counts I. to 
Xni., inclusive; that is to say, for the unlawful posses- 
sion of the game birds specified in these counts. 
2. That the defendants are not liable for possession o£ 
the birds named in counts XIV. to XIX. ; that is to say,, 
for the snipe and plover (the possession of which the law 
did not forbid), and for the snow buntings, sandpipers 
and birds of other species for which the law prescribed 
no open season. 
3. The game law is not a private statute. 
.4. It was not necessary for the People to allege and 
prove that the game was killed within the State. 
These questions of law now having been disposed of, 
the case may now be tried on its merits. The effect of 
throwing out the action for the recovery of the penalties 
embraced in counts I. to XIII., reduces the total of the 
penalties sued for from $1,168,315 to $318,518; but even 
this shrunken fiture is of such magnitude as to give the 
case an unique place in the history of game law actions. 
We print elsewhere the salient points of the plaintiff's 
brief as presented by Messrs. Frank S. Black and Hender- 
son Peck of counsel. 
A PERSISTENT BLUNDER. 
A BLUNDER in phraseology in the New Y^'ork game law 
has thrown out of court the cold storage case to the ex- 
tent of $849,797 of the penalties sued for. This is an ex- 
ceedingly large sum to be eliminated by a blunder of 
phraseology. It is altogether too large to leave ground 
for any patience with the blunderer. 
The blunder was contained in Section 33 of the law as 
?-mended in 1 901 and in force when the suit was brought. 
It read as follows : 
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 posses- 
sion for sale. 
There are two ways in which this may be construed. 
The counsel for the State contended that it should be in- 
terpreted to inean that two classes of birds were pro- 
tected, viz, (i) wild birds other than English spajrow, 
crow, hawk, etc. ; (2) birds for which there is no open 
sea son. 
Counsel for the cold storage defendants, on the con- 
trary, argued in their brief: 
"Plaintiff's counsel seeks to construe the act under con- 
sideration as though it expressly prohibited two classes of 
birds, (a) wild birds; and (b) birds for which there is 
no open season. 
"But this ignores the plain and unambiguous language 
of the act and the history of its evolution. In genera! 
terms the act prohibits the taking or possession of 'wild 
birds.' But that general prohibition is immediately fol- 
lowed by two exceptions which relate to the antecedent 
'wild birds.' These exceptions are, (i) certain enu- 
merated birds, to wit, the English sparrow, crow, hawk, 
crane, raven, crow-blackbird, common blackbird, king- 
fisher ; and (2) birds for which there is no open season." 
Whatever may have been the intention of the drafters 
of the section, it is quite clear that the construction of the 
text urged by the defendants' counsel is the only one 
admissible. Under this section, then, there could be no 
penalty for the possession of any birds for which there 
was an open season. For the snipe and plover and cer- 
tain other birds designated the law specifically provided 
an open season; and as to the snow buntings and reed 
birds, counsel contended that as the law did not prescribe 
that these should not have an open season it must be 
assumed that they did have one. Whatever the merits of 
this reasoning, the Court of Appeals has sustained the 
contention. 
Had the argument of the counsel for the State prevailed 
—that "wild birds other than the English sparrow, crow, 
hawk, crane, raven, crow-blackbird, common blackbird, 
kingfisher" constituted one class of protected birds, this 
class would have included game birds also. For wood- 
cock, grouse and quail are "wild birds other than the Eng- 
}isji sparrow, crow, hawk, etc." Hence we would have 
bad a law forbidding the taking or possession of game 
birds at any time "except under the authority of a cer- 
tificate issued under this act." That would have been 
a ridiculous law, because it would have made every per- 
.con who killed a game bird at any time guilty of a mis- 
demeanor. The section did not do this then, but it does 
precisely this now. The blunderers are still blundering and 
their blunders persist. The text of the section now reads : 
Birds for which there is no open season and wild birds other 
than the English sparrow, crow, hawk, crow-blackbird, snow owl 
and great horned owl shall not be taken or possessed at any time 
dead or alive, except under the authority of a certificate issued 
under this act. 
Under this section every person who in the autumn of 
1902 killed or possessed a game bird was a game law vio- 
lator quite as much as was the killer or possessor of song 
birds. So. long as this law remains as it is, the authorities 
may not consistently prosecute the song bird killers unless 
they shall prosecute also the game bird killers; There are 
fifty-one States and Territories in the Union. Most of 
them have a sane, clearly expressed, explicit and definite 
law for the protection of wild birds other than game 
birds. There should be some member of the New York 
Legislature capable of drafting such a law for this State. 
WHAT CANADA MIGHT DO. 
When America was discovered, the elk existed all over 
the continent from ocean to ocean, and almost from the 
Gulf of Mexico to the parallel of 54 de.grees. Four hun- 
dred years later it had been practically exterminated, ex- 
cept in the range of the Rocky Mountains and in a few 
hxralities on the north Pacific Coast. In the Yellowstone 
Park, where protection is found, and it is exposed only to 
the attacks of its natural enemies, the mountain lion, the 
lynx and the wolf, the elk still exists in great numbers— 
so great, indeed, that in hard winters many of them starve 
to death. 
In the Olympic Peninsula there are still many elk, but 
the country is being, settled up and is being run over by 
prospectors who travel up each stream and cross every 
range of mountains and kill the game and keep what they 
.do not kill stirred up, uneasy and continually wandering 
from place to place. Not so very many years ago there 
were elk over the whole length of Vancouver Island and 
■on other islands in the Gulf of Georgia. The Indians 
killed them for food, used the skins for clothing and in 
the manufacture of armor, and fashioned tools and house- 
hold implements from their antlers. Even within the last 
forty years it has been possible to gather shed elk horns 
in localities where there remains to-day not even a tradi- 
tion of the elk's existence. Nevertheless over the northern 
part of the central portion of the island, elk are still to be 
found, though just how numerous they are no one seems 
to know. The country which they inhabit is rugged, unfit 
for cultivation, and while overgrown with timber, this 
timber cannot be brought out to a market. Besides the 
elk, the more important wild animals of this region are 
deer and bear. The country has been little explored, 
although already the trophy hunters, eager to secure elk 
heads and skins, are making incursions there and finding 
game in large numbers, which they de.stroy without the 
slightest thought of those who are to come after them. 
On more than one occasion the Government of Canada 
has shown great and admirable wisdom and forethought 
ni setting aside certain regions as game preserves. There 
is an opportunity to make in the central mountain region 
of Vancouver Island a great game preserve which should 
stand for all time as a monument to the wisdom of the 
Canadian Government. It is believed that the elk found 
on Vancouver Island are not the same species as tha^ 
found in the Rocky Mountains, and if this is true and tlv 
species is unique, it certainly is worth preserving. 
The far greater interest constantly taken in game pro- 
tection by English-speaking races is evidenced by th° 
recent movement to protect South African game, and • 
establish in the forest reserves of the United States game 
refuges where no hunting shall be done ; and it is highly 
desirable that the Canadian Government should continue 
the wise action begun long ago in the establishment of 
the Banff National Park and the Laurentian National 
Reserve, by establishing on VanGouver Island a preserve 
such as we have suggested. We may feel sure that the 
intelligent and enlightened residents of British Columbia 
would hail with joy a movement such as this, which 
would be likely to make the rich and beautiful Vancouver 
Island more than ever attractive to strangers frorn ^^^^ 
