June 25, 1904-] 
FOREST ^ AND _ STREAM,* 
626 
fasten the chain with their trunk, but I have heard of 
only cile elephant with sense enough to unfasten it. He 
used to do this in order to wander through the camp at 
night and steal grain or other food. The elephant's only 
pace is a walk, which is remarkably light and noiseless, 
but by taking long and quick steps he can go fast enough 
to keep a horse at a canter. He is wonderfully clever at 
climbing. I once followed the tracks of a wild herd in 
the Sewalik Hills and found they had gone straight up 
places which were so steep that I had to assist myself 
with my hands. 
When a tree as thick, perhaps, as a man's thigh, ob- 
structs the way in the jungle, the mahout gives the 
order to break it. The elephant winds his trunk round 
ii, presses it forward and pulls it back a few times until 
the roots are loose, and then, with a push of his shoulder, 
bends it to the ground; 
Although totally incapable of jurnping, he is able to 
cross deep and wide water channels in a surprising man- 
ner. On one occasion we Came to a small river, nearly 
dry, which I thought would certainly stop us. It was 
about fifteen feet wide and ten deep, with overhanging 
banks. My elephant knelt down, passed his fore legs over 
the edge, and slid forward until his feet touched the bot- 
tom. (I would have been thrown over his head if I had 
not clung to the back rail of the howdah.) He then 
brought his hind legs into the channel, one after the other, 
walked a few yards until he came to a suitable place, and 
scrambled np^ the bank high enough to get his tusks on 
the top. Using these as a lever, he raised up first one 
and then the other fore leg, and shuffled along upon his 
elbows until the knees of the hind legs were near enough 
to the bank to be brought to the top. 
I was informed that if an elephant got into a deep 
quicksand in a river bed, the only chance of saving him 
is to cut the grass and bushes, tie them into bundles, and 
throw them to him. He places these under the fore feet 
and gradually raises himself out of the sand. It is very 
dangerous to go near him at this time, for he will seize 
a man and use him in the same manner. It_ is said to be 
a very painful sight when the elephant fails to escape. 
He sinks gradually, and the last part seen is the end of 
the trunk, which he tries to keep above the water in order 
le breathe. J. J. Meyrick. 
' ' A Picturesque Pose. 
While at Pinehurst I was very much struck by a pic- 
ture of a dog which I saw there. The artist and a friend 
were hunting and by great good luck the artist took his 
camera, and so he got this picture. The dog is Boy, and 
of all places in the world he chose exactly the right one 
to "set" a bird. Back of him is a long-leaf pine, half 
burned, the charred portion being next to him, and of the 
densest black. Nothing in the world could have made a 
finer background for this grand dog. The picture is sent 
you, and it shows that the artist is as clever as the dog. 
About a HooddO. 
Wymore, Nebraska, June 10. — Editor Forest and 
Stream: My old friend Doc has quit hunting and fish- 
ing with me. We have hunted, fished, and camped to- 
gether for thirty-five years, and have been close friends 
al! that time. It was Doc who took me to the Platte 
River, many years ago, to teach me to shoot wild geese, 
and put me on a wooded island where I remained ah day 
vv'thout getting a shot at a goosej while he crossed the 
rivef antf took a good position near a sandbar, and got 
rihig geese. He has. doctored niy family, and 1 have de- 
fended his malpractice cases; and nOW to have our fela- 
licing strahied is painful to me, indeed; . _ 
But tiie nidst .unpleiasarit thing about it all is the 
reason he gives for Hot Waiiting; to continue our hunting 
ar,d fishing together, and that is tiiat I ani a. hoodoo. 
Now, I do not know just what a hoodoo is, Hor 
v^diether I am one or not, but that Doc has had some very 
L-c:d luck in some of our excursions, I cannot deny. For 
instance, the last two times that we .set out trot_ lines for 
fish, it rained the same night, raised the river, and 
vvashed away our trot lines, and Doc's boa± as well. 
Again, when on a quail hunt, he was unfortunate 
enough to fill my hide with bird shot, and it took him 
nearly all afternoon to pick them out, when he might 
liave been hunting quail. 
At another time, when hunting geese on the Republi- 
can River, the only one he was fortunate enough to kill 
tkW in the river, and the dog carried it to a little island, 
a hundred yards from the shore, and laid it down and 
refused to bring it to land, and Doe was compelled to 
strip, and wade and swim to that island, when the ice 
was running in the stream, to get his goose 
But that was the fault of the dog, and 1 Cannot see 
wherein 1 was to blamC; 1 did iiot own the dog, 
and the Water is always Cold at that tlnlC of yean 
Well, the climax came last winter, when We went duail 
hunting up the Blue. It was a very pleasant winter day ; 
the sun was bright and warm, and we walked along to- 
gether talking over old times, until we reached a place 
where the rocky bluffs came in near the river, and while 
passing along between the bluff and the river, in an old 
ccw-path, I had fallen behind three or four rods, when, 
on looking ahead, I saw a bobcat in a tree, a few feet 
ahead of Doc, and only about twenty feet from the 
ground. Doc was walking along with his gun on his 
shoulder, upside down, , with two fingers through the 
guards, one on each trigger, a favorite way of his m 
carrying his gun, and both hammers cocked. He had not 
noticed the bobcat, but the instant that I saw it, I un- 
thinkingly put two loads of bird shot into it. The shot 
was such a surprise to the cat that it jumped_ straight 
up into the air, but when it came down it missed the 
limb, and fell in the path about six feet in front of Doc, 
and such a spitting, yowling, and caterwauling you 
never heard, and when that bundle of yellow and gray 
fur and infernal noise struck the ground in front of Doc, 
he unconsciously or spasmodically pulled off both barrels 
of his gun, and the two loads passed a few feet above my 
head, and as his gun went off, he let out a yell that 
almost scared the cat to death, and as he started to run 
toward me the cat went the other way, and when Doc 
realized that I had shot the cat, and had been the inno- 
cent cause of the trouble, he seemed very much vexed, 
and the profanity he used was of the rugged variety. 
But surely I was not to blame. I submit to all fair- 
minded men that I did the right thing at the right time. 
How did I know that the cat would miss the limb and 
fall in front of Doc? I never saw a cat do that before. 
Besides, if I had not shot that cat if might have dropped 
down on Doc's head as he passed under it. My own 
opinion is that Doc should have reserved his fire, and 
instead of wasting those two loads in the air over my 
head, he should have shot the cat. But it seems easy to 
■^ay what others should do under all circumstances, and 
taking it all in all, I have no critici'^m to make. I think 
Poc simply did his best. A. D. McCanpless. 
A PICTURESQUE POSE. 
Both artist and dog can feel complimented by this allu- 
sion. It is doubtful if any dog picture ever exceeded this. 
Certainly the writer has never seen any which equaled 
it. The vegetation is shown well— the little bay trees, the 
scrub oaks, wire grass, etc. The pine shows how under 
the old system of getting rosin these noble trees are so 
exposed to destruction by fire, which, flashing through the 
grass, seize upon the rosin in the "boc" of the tree and 
then run up the many feet of surface from which the 
bark has been removed in order to let the rosin run down. 
The new system of tapping these trees ought to be re- 
quired by law to be used. Fred A. Olds. 
The New York Cold Storage Cases. 
. ThJ: Appellate Division of the Supreme Court, First 
Department, of New York, handed down last week an 
opinion hi the case of the People, Appellants, vs. Jacob 
V. Bootman and Howard R. Robinson, Respondents, or, 
as it is popularly known, the cold storage game case. The 
full text of the opinion follows, having been written by 
Justice Ingraham : 
This action was brought to recover penalties for a vio- 
lation of the forest, fish and game law (Ch. 20 of the 
Laws of 1900), the defendant being charged with the 
possession of various birds at different times between 
May 23, 1901, and June i, 1901. The defendants de- 
murred to this complaint, and the _ demurrer was sus- 
tained as to counts fourteen to nineteen of the com- 
plaint inclusive, and overruled as to counts one to thir- 
teen inclusive (40 Mis. Rep., 27). Both parties seem to 
have appealed to this court, where the judgment below 
was affirmed without an opinion (72 App. Div., 619), and 
on a subsequent appeal to the Court of Appeals the judg- 
ment was affirmed upon the opinion of the Special Term 
(173 N. Y., 622). The case then came on for trial before 
a jury, and was submitted upon an agreed statement of 
facts. It was stipulated that the defendants, "between 
the 22d day of May, 1901, and the 2d day of June of that 
year, possessed at the city and county of New York, 100 
grouse, 100 quail, 96 woodcock, and 100 ducks, being of 
the same grouse, quail, woodcock and ducks mentioned 
and described in the first thirteen counts of the corn- 
plaint in the above entitled action;" that "all of the said 
grouse, quail, woodcock and ducks were caught and 
killed outside of the State of New York, to wit, in other 
States of the Union, and were purchased and acquired 
by the defendants and exported from the States in which 
tkey were caught and killed to them in this State, at a 
time when it was lawful to possess them in the State of 
New York, to wit, during the month of November, igpQ ; 
and that the defendants received and kept the same on 
storage, at the county and city of _ New York, from that 
time to the commencement of this action,; and that they 
were of the fair market value of $S,ooo." Upon the 
trial the complaint was dismissed, and thC; plaintiff 
appealed. . 
The first thirteen counts of the complaint were alike m 
form, except as to the specific birds and the time. The 
first count alleged that "on the 23d day of May, 1901, at 
the city and county of New York, the defendants, co- 
partners as aforesaid, unlawfully, willfully and knowingly 
possessed 496 grouse and 236 quail during the close 
season for said grouse and quail respectively, contrary 
to the form of the statute in such case made and pro- 
vided. That by reason of the premises, the defendants 
then and there became liable to a penalty of $60, and to 
an additional penalty of $25 for each bird, grouse and 
quail so possessed, to wit, the sum of $18,300." These 
counts were held to state facts sufficient to constitute a 
cause of action. . 
Upon the trial it appeared that these birds had been 
taken out of the State of New York, purchased by the 
defendants outside of the State, and imported into this 
Stale at a time when persons in this State were 
authorized to take such birds and have possession thereof' 
and the birds had remained in the possession of the de- 
fendants in the original packages from the time of such 
importation until the time the complaint alleged that the 
defendants possessed the same. The defendants having 
thiis lawfully become the owners of these birds at the 
time when the possession and ownership of such property 
was authorized by the law of this State, the question is 
directly presented as to whether the Legislature could 
make the subsequent possession of these birds a crime. 
I'hat these birds thus acquired by the_ defendants and 
imported into this State when such importation was 
allowed by the law of this State were property, cannot 
be seriously questioned. It is agreed that they were of 
the value of $S,ooo, and when purchased and imported 
inio this State by the defendants neither the State nor 
anyone acting under its authority could confiscate or ap- 
propriate this property without making compensation to 
the defendants therefor. They were protected by the 
provisions, of the State Constitution, subject, however, 
to the police power of the State which would include 
Ihe right of the State to prevent the sale of articles of 
food which would be injurious to the public health. 
Subject to this power, however, the defendants had a 
right to possess the birds, to sell them or make such 
disposition of them as they pleased. It was held by the 
learned judge who determined the demurrer in this case, 
which opinion was adopted by the Court of Appeals, that 
the possession of birds at the forbidden season within the 
State is prima facie evidence that the possessor had 
violated the law, and that the burden was then cast upon 
hnn to show that the possession was legal. Thus, upon 
tlie trial of the case, there was imposed upon the de- 
fendants to escape liability the obligation of showing 
that the possession of these birds in May and June,_ 1901, 
was not a violatirn of the statute, and the question is 
therefore presented whether the provisions of this law 
require us to hold that the Legislature intended to make 
the mere possession of property to which the possessor 
had the legal title, a crime, and whether, if the Legisia- 
ture intended to accomplish that result, it was in violation 
of the provisions of the Constitution. Section 6 of Arti- 
cle I of the Constitution provides that no person shall 
'■be deprived of life, liberty or property without due pro- 
cess of law ; nor shall private property be taken for pub- 
lic use without just compensation." Since this provision 
has been a part of the fundamental law of the State, it 
has been universally held that the possessor of property 
is entitled to its full beneficial use and free enjoyment, 
and that such use and enjoyment of property cannot l)e 
directly or indirectly affected, except by due process of 
law. Thus, in Foster vs. Scott (136 N. Y., 577), the 
court said what it seems to me is directly applicable to 
the questions presented in this case: 
This case is governed by a few principles so well settled and 
understood thai they are elementary, and nothing can be added to 
their force or application by illustration or extended discussion. 
The validity ol a law is to be determined by its purpose and its 
reasonable and practical effect and operation, though enacted 
under the guise of some general power, which the Legislature may 
lawfully exercise, but which may be, and frequently is, used in 
such a manner as to encroach, by design or otherwise, upon the 
positive , restraints of the Constitution. What the Legislature 
cannot do directly, it cannot do indirectly, as the Constitution 
guards as eft'ectuaiiy against insiduous approaches as an open and 
direct attack. Whenever a law deprives the owner of the beneficial 
use and free enjoyment cf his property, or imposes restraints upon 
such use and enjoyment, that materially affects its value, without 
legal process or compensation, it deprives him of his property 
within the mcanmg of the Constitution. All that is beneficial in 
property arises from its nse and the fruits of that use, and what- 
ever deprives a person of them deprives him of all that is de- 
sirable or valuable in the title and possession. It is not necessary 
in order to render a statute obnoxious to the restraints of the 
Ci^nstitution. that u must in terms or in effect authorize an actual 
physical taking cf the property or the thing itself, so long_ as it 
affects its free use and enjoyment, or the power of disposition at 
tlie will of the owrer. 
If the free beneficial use and right of disposition of 
property are thus protected by the Constitution, an_ act 
v/hich makes the mere possession of property a crime, 
and imposes upon the possessor a penalty, is certainly a 
direct legislative interference with the beneficial use and 
liberty of disposition of the property. If an act of the 
Legislature attempted to make the mere possession of a 
barrel of flour or a bushel of wheat a crime, there could 
be. I suppose, no question but that it would be a violation 
of' this clause of the Constitution. (Matter of Jacobs, 
98 N. Y., 98-105, and cases there cited.) Wherever these 
birds became the oropertv of the defendants and lawfully 
possessed within 'this State, it seems to me that such 
ownership and possession was as much protected^ by the 
Constitution as was any other kind of property similarly 
situated, and that if the construction sought to be given 
to this statute by the learned counsel for the plaintiff is 
correct, it was beyond the power of the Legislature. 
I have not considered the Act of Congress of May 25, 
1900, as that act could only have the effect of preventing 
the provision of the Federal Constitution as to interstate 
commerce from applying to property of this character im- 
ported into this^ State. It did not and could not affect 
the application of the Constitution of this State, which 
prohibits the Legislature from depriving a person of 
property wthout due process of law. It may be conceded 
that since the passage of this Act of Congress these 
birds, when imported into this State from any other 
State or Territory, became subject to the operation and 
effect of the laws of this State, enacted in the exercise of 
its police power, to the same extent and in the sarne man- 
ner as though such birds had been produced in this State, 
bnt that act certainly could not abrogate the provisions 
of the State Constitution which prohibit the Legislature 
from depriving the plaintiff of this property without due 
process of law. Entertaining these views, we have to 
examine the statute to see whether it must necessarily be 
construed so as to accomplish what would be a violation 
of this constitutional provision. 
Section 22 of the act (Ch. 20 of the Laws of 1900, as 
amended by Ch. 396 of the Laws of 1901), provides that 
the close season -for quail shall be from December 16 
to October 31, both inclusive. Section 23, as amended 
bv Chapter 601 of the Laws of 1900, provides that wood- 
cock shall not be taken from December 16 to September 
iS,~both inclusive. Section 25, as amended by Chapter 
601 of the Laws of 1900, provides that the close season 
for grouse shall be from December 16 to September 15, 
both inclusive. Section 28 provides that woodcock, 
grouse and' quail shall not be sold or possessed during the 
