210 
FOREST AND STREAM. 
March 14, 1903.] 
The Cold Storage of Game,* 
BY T. S. PALMER, ASSISTANT BIOLOGICAL SURVEY, DEPART- 
MENT OF AGRICULTURE. 
Refrigeration and Game Protection. — The application 
of refrigeration to storage has revolutionized the trade 
in certain perishable goods, but in few directions has it 
produced more marked results than in the trade in 
game. By making it possible to keep game for an in- 
definite period, it has enabled the dealer to obtain 
birds in large quantities in favorable localities and 
seasons, and after transporting them thousands of 
miles to place them on the market under such condi- 
tions that they will command prices sufficient to net 
a handsome profit. 
In the fruit industry and in the meat industry the 
opening of distant markets with the opportunity for 
securing higher prices has increased the demand for 
certain goods which in turn has encouraged an in- 
creased production. More orchards have been planted, 
and more cattle, sheep and hogs have been raised for 
market in order that the supply may keep pace with 
the demand. 
In the case of game the results have been very differ- 
ent. Cold storage has built up if, indeed, it has not cre- 
ated the trade in game, but this trade has been developed 
almost entirely on one side, for it has created an enor- 
mous demand' without developing a corresponding sup- 
ply. . In other words, it has stimulated increased de- 
struction rather than increased production, and in fact 
in some regions has reduced the supply almost to the 
point of extinction. The reason is obvious. Game 
consists almost entirely of animals and birds existing 
in a state of nature. It is not supplied to any extent 
by species under domestication, and no method is as 
yet known by which it can be propagated in sufficient 
quantities to meet the demands of the markets of the 
larger cities. This demand can produce but one re- 
sult. As soon as it exceeds the normal rate of repro- 
duction it must, unless restricted, invariably reduce the 
available stock at a rapid rate. Restrictions have been 
applied in the form of game laws, and these restric- 
tions are constantly growing more stringent and more 
complicated. Without entering into a discussion of 
this phase of the subject it will suffice merely to touch 
upon a few of the salient points, such as the legal 
status of game, the trend of legislation and litigation, 
and the methods thus far suggested or put in practice 
to meet existing conditions. 
Legal Status of Game. — Fish and game, but more 
especially game, differ in a marked degree from other 
goods offered for storage in that they belong to the 
State, and the individual can never acquire more than 
a qualified property right in them. An individual may 
purchase flour, fruit, furniture, or goods of almost any 
kind, and may sell them, store them, or use thern at 
any time or in any way he sees fit, for he has acquired 
an absolute property right in them. But in the case 
of game he never acquires this right; whether he comes 
into possession of his game by capture or purchase 
he inerely holds it by sufferance subject to conditions 
which may be fixed by law. The State may prescribe 
the time, manner and purposes of capturing game, 
may proliibit shipment in or out of the State, may pro- 
hibit sale, and may even prohibit possession during 
certain seasons or throughout the year. If the individ- 
ual transgresses any of these regulations he forfeits 
his right to the game, and the State may reclaim and 
take possession of it. For the protection of this pecul- 
iar property special officers, known as game wardens, 
are appointed, and they are sometimes given extra- 
ordinary powers to enable them to perform their du- 
ties. In some States they may enter and search with- 
out warrant, places where they suppose game to be 
held contrary to law, may seize game, may break open 
and examine suspected packages without incurring lia- 
bilities for damage to goods, and objection on the 
part of the owner only renders the latter liable to ad- 
ditional penalties. 
Statutes of this kind may seem harsh and unreason- 
able, and they would undoubtedly cause much hard- 
ship if they should all be suddenly and strictly enforced. 
Rut to the common objection that such laws are uncon- 
stitutional, the reply may be made that the police pow- 
ers of the State under which they are enacted are very 
broad, and that in the majority of cases carried to the 
higher courts the constitutionality of game laws has 
been upheld. The principle of the State ownership of 
game has been maintained by the highest courts of sev- 
eral of the States and has been upheld by the Supreme 
Court of the United States (Geer vs. Com., 161 U. S., 
549). It is incorporated in many game laws. .In the 
statutes of Minnesota, for example, it appears in the 
following terms: "No person shall at any time or in 
any manner acquire any property in or subject to his 
dominion or control, any of the birds, animals, or fish 
within this State of the kinds herein mentioned. 
* * * and whenever any person kills, catches, takes, 
ships, or has in his possession or under control any of 
the birds, animals, or fish mentioned in this act at a 
time or in a manner prohibited by this act, such per- 
son shall thereby forfeit and lose all his right to the 
possession of such bird, animal, or fish, and the State 
shall be entitled to the sole possession thereof." Gen. 
Laws, 1897, chap. 221, sec. 9). The full meaning of 
this principle is not generally appreciated. In discus- 
sing this point the Supreme Court of Illinois, in a 
decision rendered Oct. 25, 1902, said: "Section 11 of 
the Act (of April 24, 1899) declares the ownership 
and title to the animals designated to be protected to 
be in the State of Illinois. Prior to the enactment the 
State had general ownership of animals feres natum — 
not, however, as a proprietor, but in its sovereign 
capacity as the representative of the people * * * 
Section 11 places the title and ownership in the State 
as a proprietor, and the individual may no longer ac- 
quire ownership by capturing, killing, or reclaiming 
such animals except so far as permitted so to do by 
♦From Proceedings Twelfth Annual Meeting American Ware- 
housemen's Association, 1903. Read before annual meeting at 
Washington, D. C, Dec. 6, 1902. 
Other provisions of this Act." (Meul vs. People, 64 
N. E. Rep., 1,108). 
I have dwelt upon this point because it lies at the 
foundation of game protection and game storage. It 
vitally affects the question of possession during close 
season, and of contracts for storing game from one 
open season to another. It is unnecessary to enter 
into a full discussion of the question, but a few ex- 
amples will illustrate its practical application. Refer- 
ence has been made to the fact that mere possession is 
often made an offense under State laws, and this may 
be so even when the owner has lawfully come into 
possession of his game and done nothing more than 
hold it beyond the expiration of the open season. 
Game lawfully acquired in December may become con- 
traband in January, and if a State sees fit to enforce 
its right and confiscate birds held dui-ing the close 
season, in the words of the Supreme Court of Indiana, 
which has passed upon this very point, the owner "has 
lost nothing that belonged to him, and there has been 
no taking of property without due process of law or 
without just compensation." (Smith vs. State, 58 N. 
E. Rep., 1,045). Even if possession during the close 
season is only prima facie evidence of unlawful cap- 
ture, it has been held (by the Supreme Court of Ken- 
tucky) that a dealer who offers game for sale in the 
close season cannot escape punishment by showing 
that the game was taken in the open season. (Comm. 
vs. Chase Davidson Co., 58 S. W., 609.) 
The fact that the game may have been imported from 
another State does not alter the question or prevent 
the operation of the local law. No principle in game 
protection has been more vigorously contested than 
this, and tew have been more generally passed upon 
by the higher courts. It has been upheld in California, 
the District of Columbia, Illinois, Maryland, Massa- 
chusetts, Michigan, Missouri, New York, Ohio and 
Oregon. The majority of the decisions maintain the 
right of the State to control possession of game irre- 
spective of its place or origin, and the Act of Congress 
of May 25, 1900, expressly provides that game brought 
into a State at once becomes subject to the local law, 
to the same extent and in the same manner as though 
produced in that State. 
Important Storage Cases.— As early as 1873 the New 
York Society for the Protection of Game secured the 
conviction of Joseph H. Racey, a game dealer in New 
York City, who was fined $2,500 for the possession of 
100 quail out of season. The case was carried to the 
Court of Appeals. The defendant alleged that the 
birds held in cold storage in the New York close sea- 
son had been imported from the West, where they 
were lawfully killed; that they were, therefore, articles 
of interstate' commerce, and that the New York law 
forbidding the possession of such imported game was 
unconstitutional. The court, however, passed over as 
immaterial the plea of the defendant that he had in- 
vented a process of keeping game from one lawful 
period to another, which was not provided for in the 
act, held the law constitutional and affirmed the judg- 
ment of the lower court, thus giving game protection 
one of its strongest and most valuable decisions. It 
declared that "The Legislature may pass many laws, 
the effect of which may be to impair or even to destroy 
the right of property. Private interest must yield to 
the public advantage. * * * The protection and 
preservation of game has been secured by law in all 
civilized countries. * * * The measures best adapted 
to this end are for the Legislature to determine, and 
courts cannot review its discretion." (Phelps vs. 
Racey. 60 N. Y., 10.) 
In 1879 the Court of Appeals of Missouri upheld a 
similar prohibition in the Missouri law against posses- 
sion of game in the close season without reference to 
when or where the game was killed. The case was 
based on quail and prairie chickens placed in refrigera- 
tor in St. Louis in December and kept until the follow- 
ing February. (State vs. Judy, 7 Mo. Appeals, 524.) 
In 1884 the New York Society for the Preservation 
of Game again brought suit, this time against a com- 
mission merchant in New York for 10 barrels of quail 
in cold storage. Judgment was asked for $63,500, at 
the rate of $25 a bird, but the complaint was afterwards 
amended to include only one barrel, on which judgment 
was asked and obtained for $5,000. (Forest and 
Stream, XXIII, p. 506, Jan. 22, 1885.) 
In 1899 Minnesota successfully maintained its right 
to reclaim game which had been captured in a manner 
or at a time prohibited by statute. (Thomas vs. North- 
ern Pacific Express Co., 73 Minn., 185.) 
Finally it has been held that under a statute pro- 
hibiting possession a contract for storage of game 
during the close season is null and void. Such a de- 
cision was rendered by the Supreme Court of Mis- 
souri in 1898 in the case of Haggerty vs. St. Louis 
Ice Manufacturing & Storage Co. (143 Mo., 238), and 
relieved the Storage Company of the payment of 
$7,000 damages for the loss of certain game which had 
spoiled in storage. 
In the light of these decisions the seizure of a large 
quantity of contraband game in the cold storage rooms 
of the Arctic Freezing Company, of New York City, 
in May, 1901, assumes unusual interest. This game 
comprised some 50,000 pieces, including 6,000 grouse, 
5,000 quail, 7,000 English snipe, 9,000 golden plover, 
1,000 ducks, 10,000 snow buntings (not properly game) 
and miscellaneous game. (Forest and Stream, LVL, 
p. 441; LVIL, pp. 201-203, 1901.) The full penalties 
under the Act, if it were literally applied, would amount 
to more than one million dollars. The Supreme Court, 
however, held that two of the sections of the law cov- 
ering this game were void, thereby reducing the total 
penalties very considerably, but the amount to which 
the company is liable is still very large. This case is 
now on the docket of the Court of Appeals, and the 
decision will be awaited with much interest, in the 
expectation that it will throw some light on the ques- 
tion as to how far warehousemen are responsible for. 
goods in packages which they accept without examina- 
tion, merely on the statement of the owner. 
It' must not be supposed that all legislation has been 
favorable to game protection. Commission merchants 
and warehousemen, ever alert to their interests, have 
sought, and in some cases obtained, exemptions from 
game laws which they have considered too stringent, 
iviindful of the damage which might- be done by unre- 
strained examination of goods in their care, they have 
opposed bills intended to give wardens the right of 
search "knd seizure without warrant. In Massachusetts 
they have secured the enactment of a proviso that any 
person, firm, or corporation dealing in game or en- 
gaged in the cold storage business, may have quail, 
pinnated grouse, shore birds, and ducks in possession 
in cold storage at any season if such birds were not 
taken or killed in the Commonwealth contrary to the 
provisions of the Act (Act of 1900, Chap. 379)- I" 
Missouri they have secured practically the same ex- 
emption in another form, namely, that the restriction 
on sale "shall not apply to game shipped into this 
State from any other State or Territory." (Laws of 
1901, p. 131.) In New York, some years ago, they se- 
cured the repeal of the prohibition against possession 
of game out of season, but owing to the pressure of 
public sentiment the statute was re-enacted in 1895. 
Exceptions like these can be regarded only as tem- 
porary and unsatisfactory makeshifts. 
It can hardly be expected that States will long per- 
mit any one class of persons to enjoy immunity from 
laws when such exemption tends to defeat an object 
which the State desires to secure. Moreover, the 
rapid increase in non-export laws and the part the 
Federal authorities are now required to take in enforc- 
ing the interstate commerce provisions relating to 
shipment of game, have greatly altered conditions 
which existed a few years ago. A dealer who obtains 
exemption from the laws of his own State and bids 
for shipments from other States in the face of _ non- 
export laws encourages his correspondents to violate 
their local laws, if he does not actually render himself 
liable to the penalties of the Federal law. Instead of 
seeking to preserve the game which makes a continu- 
ance of his trade possible, the dealer has too often con- 
sidered only his personal interests and the opportun- 
ity for immediate gain. The warehouseman, too, per- 
haps unintentionally endorsed the methods of the game 
trade and aided dealers in their efforts to evade the 
law. 
It does not appear that any serious effort has been 
made to solve the real problem of cold storage of 
game — to trace the game from the field to the table, 
investigate the methods by which it is captured, killed, 
packed, shipped, stored and sold, to ascertain the best 
temperature, the best form of package, the amount of 
ventilation, or the period of time during which game 
may be kept to advantage. Methods which would 
never be tolerated in handling poultry are accepted 
without question in the case of game. Some birds are 
netted, their necks are wrung, and they are packed for 
storage without being bled or properly cooled. Ducks 
are caught in nets set under water so arranged that 
the birds are entangled and drowned. They are then 
thrown into barrels and shipped to market _ without 
special care to packing. Many of those shipped in 
spring, are unfit for food, and are often condemned 
when they reach the market stall. Is it strange, then, 
that under these conditions cold storage game is often 
claimed to be detrimental to health and that cases 
of ptomaine poisoning are sometimes charged against 
it? 
Acceptance of current market methods may, how- 
ever, prove a source of loss to the warehouseman if 
he does not take the precaution to protect himself by 
ascertaining the real contents of packages offered for 
storage as he may unwittingly have game in possession 
in violation of law. Several States now make it a 
serious offense to offer game for shipment in packages 
improperly marked, and the same should hold good in 
the case of goods offered for storage. Unscrupulous 
dealers resort to many devices of packing and mark- 
ing to evade the game laws. Two of the most com- 
mon devices are packing game in egg cases or butter 
boxes and tubs. The Department of Agriculture has 
recently received a copy of a circular widely distributed 
in the Northwest during the fall of 1902, in which a 
certain commission merchant gives the following di- 
rections for packing prairie chickens: "The best way 
to ship is to pack in egg cases. Line the cases with 
brown paper so that the feathers will not show through 
the cracks. See that the birds are thoroughly cooled 
before packing. You can put ten to twelve birds in 
each end of the case, put two or three very thick paste- 
boards on top of the birds, then put in a filler of three 
dozen eggs on each side. If not enough birds fill up 
the case with eggs. See that the case is well nailed 
on top, bottom and sides. Ship by express. Put some 
name other than your own on the card and write me 
when you ship." , , • 
Note.— Under the Act of May 25, 1900, the shipper 
is required to mark his name and address and a state- 
ment of the contents on the outside of every package 
of game shipped by interstate commerce. Compliance 
with these directions would, therefore, render him 
liable to the loss of his game as well as the heavy 
penalties for evasion of the law. 
It happens that certain food products in storage are 
liable to damage from odors, and this is particularly 
true of both eggs and butter, which are usually stored 
by themselves and carefully separated from citrus fruits 
and from such vegetables as cabbages and onions. The 
temperatures at which butter and eggs are stored are 
also different from those maintained for meats, and 
are higher than those required for fish and game. If 
a quantity of prairie chickens were shipped under the 
above directions by a person who, through carelessness 
neglected the precaution of properly cooling the game 
or notifying the warehouseman of their true charac- 
ter, in consequence of which the birds were tainted on 
arrival at destination and in that condition were stored 
in rooms with a large quantity of eggs, it might be 
possible for such birds, perhaps remaining for several 
months at a higher temperature than is necessary for 
game, to seriously damage the stock of eggs and there- 
by render the storage company liable to damage foi; 
the loss thus incurred. 
Bonding Game.— What has been done to improve 
existing conditions? In his annual message of 1902 
Governor B. B, Odell, of New York, referring to the 
t 
