Forest and Stream. 
A Weekly Journal OF the Rod and Gun. 
Copyright, 1904, by Forest and Stream Publishing Co. 
Terms, 
; A Year. 10 Cts. a Copv. 
Six Months, |3. 
NEW YORK, SATURDAY, JUNE 23, 1904. 
{ 
VOL. LXII.— No. 56. 
No. 346 Broadway, New York, 
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particulars respecting subscriptions, see prospectus on page iii. 
THE COLD STORAGE CASE. 
The New York cold storage case drags its slow length 
along. The latest report of progress comes in the form 
ot' an opinion handed down by the Appellate Division of 
the Supreme Court on Friday of last week. 
The suit was brought in August, 1901, against tlic 
Arctic Freezer Company, consisting of Jacob V. Bootman 
and Howard R. Robinson, for the possession in close 
season of thousands of game birds and other birds, 
the penalties for which aggregated $1,168,315. 
The case progressed through various courts, the amount 
of penalties recoverable being reduced for various reasons, 
mainly because of defects in the wording of the law, until 
in February, 1903, the Court of Appeals held that the 
Stale might sue to recover penalties amounting, to 
$3] 8,51:8, for certain of the game birds and song birds. 
When the case came to trial, it was dismissed, the court 
liolding that as the birds had been brought in from out- 
side of New York, the law forbidding possession in close 
season did not apply to them. From this ruhng the State 
appealed, and it is this appeal which has just been passed 
upon by the Appellate Division in the opinion which we 
print on another page. 
The Appellate Division sustains the finding of the 
lower court. It holds that the purchaser of game outside 
- of the State, who brings it into the State at a time when 
its possession is lawful, acquires in it a property right 
of which he may not constitutionally be deprived by the 
Legislature. Further, such confiscation of property being 
unconstitutional, its unconstitutional nature cannot be 
affected by an act of Congress. ' 
If the principle here enunciated, of the absolute. and_. un- 
restricted nature of property in dead game, be admitted, 
it follows that the opinion of the Appellate Division 
might well be accepted as final. But the interesting fact 
is that in numerous instances the courts have taken a 
different view, and have declared that the property right 
accpured in game is a qualified right only, and is subject 
to such restrictions as the Legislature may deem 
expedient to attach to it. This, indeed, is the basis of 
very much of our game legislation. Ff property in game 
be absolute and not subject to restriction by the Legisla- 
ture, we could have no laws whatever regulating posses- 
sion in close season, with respect to game imported nor 
to game taken within the State. As a matter of fact, 
however, it is conceded that as to game taken v/ithin the 
■Slate, the Legislature may forbid possession in close 
season; and as to such "game it is held that the posses- 
sor may accpiire only the qualified right to possess it in 
the open season. Li this Arctic Freezer suit, the State 
representatives assumed that if the law made the pos- 
session of game unlawful at certain periods, the right 
cf the individual to possess it in that forbidden period 
could not be acquired, no matter where the game came 
from: The Appellate Division does net share this view. 
The principle has been repeatedly sustained, and by the 
Court of Appeals of the State. To that court the present 
case will be taken. If the State shall be defeated there, 
oil the same ground of the law's unconstitutionality, the 
case will be taken to the Supreme Court of the 
United States. The point is one which should be settled 
once for all by the highest authority in the land. The 
interests at stake are tremendous. Without a final es- 
tablishment of the right of the State to stop the sale of 
game in close season — of all game, without regard to its 
origin — our system of protection must be only partial 
and inadequate. " 
The question of the constitutionality of the laws 
which forbid possession of imported game in close 
season cannot be affected by the Lacey Act. As we 
pointed out long ago, if a statute conflicts with the consti- 
tution of the State, or with that of the United States, the 
conflict cannot be removed by act of Congress. Only a 
revision of the constitution could do that. If the upper 
courts should confirm the view of the Appellate Division 
as to the constitutional right of a New York ,game 
dealer to possess in close season tons, of game birds and 
song birds purchased in other States, Congress will be 
powerless to provide any other remedy than such as may 
restrain transportation between the States. . 
JUNE DAYS. 
If the days of June offer to the gunner no attrac- 
tions more enticing than lazy comfort out of doors, they 
are the best days for the angler. In following the streams 
and hoping to take the big fish, all thought of comfort 
Is lost sight of. This is the work that is play. - 
To sprawl on the grass and stare up at leaves which 
have not yet exchanged their vernal freshness for the 
darker hue of summer, is pleasant, if not exciting; and 
if loafing absolutely palls, it is not yet so v/arm but that 
one may take some vigorous physical exercise, though, 
if he has the choice, he will do well to journey through 
the woods, or along shaded lanes, rather than to follow 
.the dusty highway or even to cross his neighbor's mow- 
ing lot. 
These are days when, if one is building for himself 
a summer retreat such as the Vermont home that Mr. 
Brown recei>tly described, he may put vigor into his ax 
strokes, may lay up the stone chimney of his cabin, or 
may pile log on log around the building and feel at night 
a pride at the growth which walls have made toward 
roof tree. 
Yet not many of us have the leisure to partake of joys 
like this. We have to work most of the time. If we 
are lucky enough to be in the country, we may sit on the 
piazza at morning or evening or on Sundays and listen 
to the rustle of leaves, the hum of insects, or- the boom 
of surf upon the beach. We may watch the robin and 
the wood thrush as they hop over the lawn, stopping 
now and then to look, or bending forward and turning 
tht head, held close to the ground, as if listening for the 
movement of some unseen prey. We may see the great 
crow blackbird,, large of head, glossy of plumage, and 
long of tail, stalk over the grass with dignified march 
as he searches for food for his clamorous and growing 
family, hidden away in the thick top of spruce or pine 
tree. After all, the birds that we watch are a good deal 
like ourselves, and like every other living thing — their 
first care is food to eat. The birds are satisfied with 
this, but we humans want a piece of land, a house, more 
or less elaborate, clothing, diamond rings, automobiles, 
and a lot of other non-essentials which do not actually 
add to our comfort, though we imagine they do. Has 
any of us ever had such a good time as when, alone or 
with a single companion, he journeys far from his fel- 
lows, a good horse between his legs, a few pounds of 
dried meat his sole provision, and no property except his 
arms and a buffalo robe or a pair of blankets? Would 
the angler exchange his days on the stream with their 
black flies and wet and heat and cold and disappointment, 
for any other excursion that could be named? 
June is the month of weddings and of roses, and it is 
leafy, but it is pre-eminently a month of out of doors. 
Two other months in the year equal it in this respect — 
October and November. They offer a tang and a tonic 
not found in June, but again, for the most part— though 
not always — they lack the mildness and the softness of its 
best days. 
MONEY VALUE OF A STATE'S GAME. 
It has often been pointed out that the game of a State 
has a definite money value, and this value is. constantly 
increasing as the area of civilization expands and the ter- 
ritory occupied by the game contracts. One of the earliest 
writers to call attention to this fact was Mr. Lucius Hub- 
bard, of Maine, who, a good many years ago, gathered 
some statistics as to the probable money value to that 
State of the game found in it. These figures have since 
been confirmed again and again. It has been pointed out 
that the non-resident hunting licenses for big game re- 
ceived by Maine last year amounted to more than $25,000; 
in other words, to more than the annual appropriation for 
I he maintenance of the Maine Commission of Fisheries 
and Game, and the carrying on of its work. 
The figures compiled by the Maine Commissioners for 
the year 1902 showed that the visitors from without the 
State gave employment to considerably over 4,000 people, 
who received in wages nearly $268,000. The cash paid in 
for board from non-resident visitors was over $1,370,000. 
It has been estimated that each of the 133,885 visitors 
to the State in 1902 left there $100, but if the amount 
expended was only half that, the total was very large. 
Of the persons who visit Maine each summer, a very large 
number are attracted by the shooting and the fishing, or if 
not directly by that, at least by the fact that some mem- 
ber of the family desires to be where shooting and fishing 
can be had. The summer and autumnal visitor is an im- 
portant factor in the prosperity of many of the inhabitants 
of Maine or of Michigan or of various Provinces of 
Canada. 
If the summer visitor goes to Maine, the winter visitor 
goes to Florida, or Texas, or Louisiana, or North Caro- 
lina. Fie spends money for his winter ©leasures, just as 
his neighbor does for the pleasure of summer. Fie 
pays his railroad fare, his non-resident fee, and his hotel - 
or board bill, and hires his guide; he brings to the State 
money that otherwise would not be brought. 
The mild climate, the open golf links, and the pleasant 
piney woods attract not a few; men to the South, but it is 
ihe Bob White of the uplands and the wildfowl of the 
marshes that bring most of them. It is worth while, there- 
fore, for each State of North and South alike to recog- 
nize that in the game and fish which in old times swarmed 
on the land and in the waters— and which, if properly 
guarded, would again become abundant— they have an 
attraction which will bring within their borders great 
numbers of people, eager for recreation, and willing and 
glad to spend freely their money in its pursuit. 
The game of every State is an asset of great value, and 
one which, if properly handled, will pay steady and sure 
annual dividends. ■ 
That exposition of the value of the quail as an ally of 
the farmer, printed last week, was convincing, but one may 
tremble lest it prove too much. We have been working 
in this country for years to create an enlightened appre- 
ciaton of the office of insectivorous birds as allies of the 
farmer, and that lesson has been pretty thoroughly learned. 
If to the forces of other insect eaters protected by public 
opinion the quail shall be recruited, where shall the sports- 
man as the destroyer of quail find himself? Already in 
isolated instances he is shut out from well stocked fields ; 
a correspondent of the Division of Entomology reports that 
after the discovery of seventeen cut^worms in the crop 
of a quail shot on a Texas farm, "that stopped the killing 
of quail, so far as my grandfather's place was concerned." 
But there need be no fear that quail shooting sportsmen 
will ever actually be deprived of their sport; for as a mat- 
ter of fact it is the quail shooter to whom the farmer is 
indebted for the bird's protection. Had it not been for 
the efforts of the sportsmen themselves, the quail 
would long ago have been exterminated from, vast areas 
v/here they now abound. The quail shooter has always 
been, and will always be, the most active and efficient pro- 
tector of the birds, for the simple reason that he has a 
very definite and actual interest in their preservation. 
His concern to insure good shooting is a more potent 
stimulus to game protection than the most profound ap- 
preciation of the bird's value as an insect 'destroyer can 
ever prove. Note for a late example of what sportsmen 
are doing in this field the recent enterprise of the Massa- 
chusetts Fish and Game Protective Association, in putting 
out, all over the State, 181 dozens live quail, at a cost of 
about $3,000. This work was undertaken in consequence 
of the quail extermination by the extreme cold of last 
winter ; and if all goes well it will mean a restoration of 
the birds, which will be of general public benefit. 
■ - 
A CLERGYMAN who must be without a saving sense of 
humor has published for his fellow sermon writers a 
book of texts and illustrations, entitled, "Fresh Bait for 
Fishers of Men." This recalls a story which a well- 
known preacher tells of himself, that being invited to 
preach to Vassar College, he found, to his consternation, 
when in the pulpit, that he had brought the wrong ser- 
mon. The one he had with him was on the text, "I will 
iT.ake you fishers of men." Needless to say the young 
.ladies \yere edified. 
