824 
FOREST AND STREAM. 
[June 25, 1904. 
close season, except in the month of December, and the. 
possession or sale thereof during the last fifteen days of 
December shall be presumptive evidence that they were 
unlawfully taken by the possessor. Section 39, as 
amended by Chapter 741 of the Laws of 1900, provides 
that a person who violates any provision of this article 
is guilty of a misdemeanor and is liable to a penalty of 
$60, and to an additional penalty of $25 for each bird or 
part of bird taken or possessed in violation thereof. 
Substantially the same provisions are contained in Article 
3 of the act in relation tO' certain fish. The provisions 
of Article 3 were before the Court of Appeals in the case 
of People vs. Buffalo Fish -Co. (164 N. Y., 93). The 
appeal in that case presented, as this case presents, two 
questions ; first, "with respect tO' the true meaning and 
scope of the statute, and secondly, if it means what the 
plaintiff insists it does, with respect to its, validity ;" and 
it was held that ■ . ... . . 
The statute in qviestion does not in terms, or any reasonable 
implication, forbid a person to "catcli, kill or be possessed" of fish 
in a foreign ccnnlry. We all agree that our statute does not for- 
bid a person to ''catch or kill" fish of any kind in Manitoba, but 
it is said that whtn one brings the fish so caught or killed into 
this State, the penalties of our statute attach to him. With all 
respect, I am constrained to say that this is not a reasonable or 
tolerable interpretation of a penal statute. What it means and all 
it means is to forbid any person to catch, kill or be possessed of 
the fish described from the waters of this State. The wprd 
"possessed" obviously refers to those fish the catching or killmg 
of which is forbidden, that is to say, fish in the waters of this 
State, and not those procured in a foreign country. It is simply 
a perversion of the statute to hold that the mere possession by 
any person within this State of the fish described in the statute 
during the close season is a violation of it, without regard to the 
place where it was procured, or to the manner obtained. * * * 
In the case at bar the statute is pushed by a literal reading to a 
point quite as unreasonable. In my opinion the law has no 
reference or application to a case where the fish have been im- 
ported from a foreign country. The conceded facts of this case 
take it out of the reason and policy of the law. 
We have thus stated for our guidance by the Court 
of Appeals a rule of construction which can be applied 
to this statute, and which saves it from being a violation 
cl the constitutional provision to which attention has 
been called. The Legislature had implied authority to 
protect the v/ild game of the State. To accomplish that 
purpose it prohibited the taking of certain birds during 
a certain portion of each year, and then provided that 
these birds should not be sold or possessed during the 
close season, and provided a penalty for a violation of 
this prohibition. Reading these sections together, they 
can be construed in accordance with the intent of the 
statute to apply to certain specified birds taken within 
the State, and that the sale or possession of sucli_ birds 
during the close season is a violation of the provision of 
the law, and imposes upon the possessor the penalty 
therein prescribed; but the statute was not intended to, 
I'or does it, affect the possession or sale of birds taken 
in another State or country, the ownership of which 
had been acquired and which had been followed by im.- 
portation into this State while such importation and 
possession was lawful and vested in the possessor the 
title to the property. 
Our attention has been called to a case at the Special 
Term of the Supreme Court (People vs. A. Booth & Co., 
reported in the 42d Mis. Rep., 321), in which this ques- 
tion is quite fully discussed, and where a conclusion is 
arrived at which substantially agrees with that before 
indicated. I also think that the court had power to 
grant the allowance. 
It follows that upon the agreed statements of facts we 
agree with the learned judge below, and that the judg- 
ment should be affirmed, with costs. 
Patterson and O'Brien, JJ., concur. 
Van Brunt, P.J., concurs in result. 
A dissenting opinion, written by Judge McLaughlin, 
follows : 
I am unable to concur in the prevailing opinion. The 
possession of the birds at the time alleged in the com- 
plaint and stated in the stipulation was, under the forest, 
fish and game law (Chap. 20 of the Laws of 1900, as 
amended by Chap. 396 of the Laws of 1901) unlawful 
(Id. Sees. 23, 25, and 28), and by reason thereof the 
defendants were liable to the penalty specified in Section 
39 of that act. The act is not unconstitutional. (Phelps 
vs. Racey, 60 N. Y., 10; People vs. Buffalo Fish Co., 
164 N. Y., 93). Nor is it in conflict with the Federal 
Constitution or acts passed by Congress regulating com- 
merce between the States. (Matter of Rahrer, 140 U. S., 
S45; Rhodes vs. State of Iowa, 170 U. S., 412; Vance vs. 
W. A. V. Co., Id., 438). . 
The prevailing opinion entirely overlooks or ignores 
Section 5 of the Act of Congress, commonly called the 
"Lacey Act," approved May 25, 1900, and if it had not, 
then it seems to me clear a different conclusion would 
have been reached. This section provides: 
That all dead bodies or parts thereof, of any foreign garne ani- 
mals, or game or song birds, the importation of which is pro- 
hibited, or the dead bodies or parts thereof of any wild game 
animal or game or song bird transported into any State or Ter- 
ritory or remaining therein for use, consumption, sale or storage 
therein, shall, upon arrival in such State or Territory, be subject 
to the operation and effect of the laws of such State or Territory 
enacted in the exercise of its police powers to the same extent and 
in the same manner as though such animals or birds had been 
produced in such State or Territory, and shall not be exempt there- 
from by reason of being introduced therein in original packages 
or otherwise. 
It is true that the validity and effect of the section 
quoted have not, so far as I have been able to discover, 
been judicially passed upon, but a similar Act of ^Con- 
gress in respect to intoxicating liquors, has. The "Wil- 
son Act," so-called, aoproved August 8, 1890, provides: 
That all fermented, distilled or other intoxicating liquors or 
liquids transported into any State or Territory or remaining therein 
for use, consumption, sale or storage therein, shall, upon arrival 
in such' State or Territory, be subject to the operation and efTect 
of the laws of such State or Territory enacted in the exercise of its 
police powers -to the same extent and in the same manner, as 
though such liquids or liquors had been produced in such State 
or Territory and shall not be exempt therefrom by reason of 
being introduced in the original packages or otherwise. (26 
Statutes at Large, 313, Chap. 728.) 
This act was first considered by the Supreme Court of 
Ihe United States in matter of Rahrer (supra) in relation 
to a statute of the State of Kansas, which provided that 
any person who should manufacture, sell or barter any 
spirituous liquors should be guilty of a misdemeanor, and 
upon conviction should be punished as therein provided, 
(i Gen. Stat. Kansas, Chap. 31, 1380, etc.) On the day 
following the approval of the Wilson Act— August 9, 
igQ<j_one Rahrer sold, in the State of Kansas, a HPg of 
beer m the original package in which it had been trans- 
ported to him from another State. He was arrested for 
violating ■ the statute of Kansas .referred to, and there- 
upon, by writ of habeas corpus, he obtained his discharge 
(43 Fed. Rep., 556), but on appeal the action of the 
lower court was reversed, and the relator remanded as 
subject to and to be proceeded against for a violation 
of the State statute. In disposing of the case, the court 
held that the Wilson Act was constitutional, and after it 
took effect liquors imported into the State of Kansas 
were subject, both as to possession and sale, to the exist- 
ing laws of that State, and it was unnecessary, after the 
passage of the Wilson Act, to re-enact the State law in 
order to make it operative upon such liquors. Chief 
Justice Fuller, speaking for the court, said : 
It appears from the agreed statement of facts that this liquor 
arrived in Kansas prior to the passage of the act of Congress] 
but no question is presented here as to the right of the importer 
in reference to the withdrawal of the property from the State, nor 
can we perceive that the Congressional enactment is given a 
retrospective operation by holding it applicable to a transaction 
of sale occurring after it took effect. This is not the case of a 
law enacted in the unauthorized exercise of a power exclusively 
confided to Congress, but of a law which it was competent for the 
State to pass, but which could not operate upon articles occupying 
a certain situation until the passage of the act of Congress. That 
act, in terms,- removed the obstacle, and we perceive no adequate 
ground for adjudging that a re-enactment of the State law was re- 
quired "before it could have the effect upon imported, which it had 
always had upon, domestic property. ■ 
The same act again came under consideration in 
Rhodes, vs. State of Iowa (170 U. S., 412). There, 
Rhodes was convicted before a Justice of the Peace of 
the State of Iowa for transporting into that State, in 
vj_o]ation_ of its laws, intoxicating liquors from the State 
of Illinois. The conviction was affirmed by the Supreme 
Court of Iowa (Stalls vs. Rhodes, 90 la., 396), but re- 
versed by the Supreme Court of the United States, on 
the sole ground, however, that the liquors, when seized, 
had not reached their destination. Referring to the con- 
tention that the statute of Iowa did not apply to liquors 
obtained outside the State, Mr. Justice White, citing 
with approval. matter of Rahrer (supra), said:, 
It is. not_ gainsaid that the effect of the act of Congress (with 
respect to imported liquors) was to deprive the receiver of goods 
shipped from another State of all power to sell the same in the 
State of Iowa in violation of its laws. * * * j^^g ^jgen settled 
that the effect of the act of Congress is to allow the statutes of 
the several States to operate upon packages of imported liquor 
before sale. , 
It was also considered in Vance vs. W. A. V. Co. 
(supra). There an injunction had been obtained restrain- 
ing the defendants from interfering with intoxicating 
liquors shipped from the State of California to the State 
of South Carolina in violation of the statutes of the lat- 
ter State. The court held that the injunction should be 
dissolved ; that under the Wilson Act intoxicating liquors 
transported from one State to another became — as soon 
as the act of transportation was complete- — subject to 
the laws of the State into which they were brought. 
Appljang the rule laid down in these decisions, as to 
the effect of the Wilson Act upon State statutes existing 
at the time of its passage with reference to intoxicating 
liquors, to the Lacey Act, and its effect upon the statute 
of this State as to the possession of game, but one con- 
clusion, as it seems to me, can be reached — viz., that the 
defendants were liable to the penalty provided by the 
statutes of this State for having the birds mentioned in 
the stipulation at the time therein stated, and this not- 
withstanding the fact they were in the original packages 
in which they were received from other States. 
The Wilson and Lacey Acts are similar, except one 
relates to intoxicating liquors and the other to game. 
The Kansas statute, which was involved in the decision 
in the Rahrer case, provides that intoxicating liquors 
shall not be manufactured or sold in that State, and the 
New York statute, under which the penalties here are 
sought to be recovered, provides that birds of the kind 
mentioned in the stipulation shall not be sold or pos- 
sessed at stated times. Both of these statutes were 
passed in the exercise of the police powers of the 
respective States, and after they became laws one 
applied to liquors produced, and the other to game taken 
in the State, but neither of them to that which was trans- 
ported into the State until after Congress had given its 
consent thereto. (Liesy vs. Harden, 135 U. S., 100.) That 
consent, however, was given by acts which might well be 
termed enabling acts- — the Wilson Act in the one case, 
and the Lacey Act in the other — and thereafter the State 
statutes applied equally to that which came from with- 
out as to that produced or taken within it. There is, 
therefore, no force in the suggestion that the Lacey 
Act has no application since the statute of the State of 
New York under which the penalties are sought to be re- 
covered was passed prior thereto. The statute is gen- 
eral in terms. It applies, so far as the possession of the 
birds mentioned during the closed season is concerned, 
to those taken or procured outside of the State as well 
as to those taken within it, and Congress has given its 
consent by the Lacey Act to the enforcement of that 
statute against birds imported into the State. This same 
contention was made in the Rahrer case, and the court, 
as already indicated, held- that a re-enactment of the 
State statute was unnecessary, and the same view was 
reiterated in the Rhodes and Vance cases. This also is 
the view of the court of last resort in every State, so far 
as I have been able to discover, where the question has 
been presented. (State vs. Intoxicating Liquors, 91 Me., 
140; Starace vs. Ro'ssie, 69 Vt., 303; State vs. Bixman, 
162 Mo., i). See also Commonwealth vs. Savage (155 
Mass., 278) ; Magner vs. People (97 111., 320). Roth v». 
State (51 Ohio State, 209); People vs. O'Neill (no 
Mich., 324) ; State vs. Rodman (58 Minn., 393) ; Ex- 
Farte Maier (103 Cal., 476) ; Price vs. Bradley (16 Q. 
B. Div., 148). 
Nor do these views conflict in any way with People vs. 
Buffalo Fish Company (supra), as I read that case. 
There, the court held that the statute here under con- 
sideration was constitutional, but so far as fish was con- 
cerned it only applied to that taken within the State. 
This was but applying the rule laid down in Liesy vs. 
Harden (supra), and it must necessarily be so, inasmuch 
as there was no Act of Congress_ fnaking imported fish 
subject to the daws of the State into which it was im- 
ported. The case would be in point except for the 
Lacey Act. That act, as already said, makes the State 
statute applicable tG_ game irnported into the State. 
I am of the opinion, in view of the authorities cited, 
that the defendants a^re liable for the pewlty provided in 
the statute for having the birds unlawfully in their pos- 
session, and if I am correct in this, then it necesisarily 
follows the judgment should be reversed. 
The opinion prevailing in the case above cited was 
followed as to the several other game cases before the 
court, namely,^ the suits against Nathan Schweitzer, 
PJarry Schweitzer, William Sommer, Michael Go&% 
Charles Cohen, Isaac Heineman, and Balthasar Arras. 
— ^ — _ 
Fish Chat. 
A "Waste of Trout Fry. 
On the eastern shore of the Hudson, and nearly op- 
posite West Point, is situated the little village of Garri- 
son. It is rather an exaggeration to call it a village, for 
there are not over a dozen houses, a couple of small 
srores, a post-office, and the railroad station, but it is 
called the village, and we will so record it. 
Back in the country four or five miles from the river 
is a great stretch of-forest, and there are so many hills 
that one is reminded at once of the green hills of Ver- 
mont, or of Cape Breton, for they are all wooded to their 
summits, and many of them are of considerable height. 
As one travels further and further from the river, he 
finds the country more thinly settled, and the farms 
smaller and less carefully tilled.; in fact, they would be 
considered but poor affairs by most practical and scien- 
tific farmers. There is a kind of forlorn appearance about 
them, an air of unthoroughness which indicates that the 
farming is done perfunctorily, and the crops raised are 
not considered of much importance, and when they arc 
harvested they prove to be all that their promise indicated. 
But the country teems with trout brooks, and some of 
them are as fine as one would wish to see. I have 
knocked about a good deal in the New England Stated 
and in the Canadian Provinces, but I never saw so many 
streams of bright sparkling water in any locality else- 
where. Owing to the hilly character of the country, they 
all flow rapidly," their noisy prattle betraying their 
course far away in the forest; they are nearly all livng 
streams, their flow being but little diminished even in the 
dryest summer. 
These brooks are ideal trout streams, and in passing 
I hem the nerves of the angler tingle, and in fancy his 
liand involuntarily clutch at the rod and reel which he 
believes he could use to good advantage. 
In a long drive that I recently took through this 
region, we passed a considerable number of these 
streams, and each seemed more promising of trout than 
the preceding ones had been. 
Our driver was known as "Old Uncle Bill-" I never 
heard his surname, and as he had lived in and about 
Garrison all his life, he knew the country thoroughly, 
every brook being as familiar to him as was his family 
rooftree ; he was an odd character, full of reminiscences, 
and overflowing with loquacity and tobacco juice. 
"Yaas, there's trout into all these brooks," .said the old 
fellow, in reply to one 'of my questions, "but it takes a 
mighty good man to ketch 'em nowadays. . I can't now, 
and I've fished these brooks nigh onto forty year; the 
fish are eddicated like, and they won't touch an angle- 
worm. Now and ag'in somebody ketches a good one, but 
they average small. There," he exclaimed, as he stopped 
the horse on the bridge which spanned one of the largest 
of the brooks that we passed, "jest below that big rock 
there," pointing to a large boulder that lay in the stream, 
below it being a pool of considerable size and depth, 
"four year ago I ketched a buster ; he had been hooked 
before that and lost, but I fetched him; he was an old- 
timer, and no mistake ; he weighed over a pound and a 
half, which is a big fish for these brooks. 
"Yaas, there's trout into all these brooks, but it takes 
a good man to ketch 'em. Some say they're pretty much 
ketched out, but I don't believe that yarn, 'cause there's 
miles and miles of these brooks that can't be fished, 
unless you, crawl on your hands and knees to get at 'em." 
"I suppose they might be restocked," said I, as the old 
man started up his horse and urged him into a brisk 
trot. "These streams look very inviting, and I should 
judge from the volume of water in them they live 
through the summer." 
"Yaas, they're all live brooks, and hardly any of 'em 
ever dry up. There's been lots of fry put in 'em. Mayor 
Potts and others got some cans from the hatcheries and 
emptied a can full inter each of the best brooks. But, 
Lor', they didn't go to work right. In my opinion, the 
fry ought to have been carried way up to the heads of 
the brooks, where they could look out for themselves 
until they got some size, but they were emptied right 
into the brook where there was fish five or six inches 
long, and I'll bet they gave high livin' to the others until 
they was all gone. No, sir, it don't do no good to put 
fry where there's any trout, big or little, for they'll find 
no marcy, sure." 
And the old man was right. Time and again have T 
known of fry being put into brooks where there were 
trout and other small fish, and the parties who put them 
out wondered why no good results followed. 
There is no doubt that many of our streams may be re- 
stocked, and ought to be, but if fry are put out they 
should be carried to the highest points, where there is no 
danger oT molestation from small trouts, perch, dace, or 
even ordinary minnows, all of which will prey upon the 
little creatures if they can reach them. 
The practice of putting out fingerlings or yearlings, 
which many have adopted, seems to be more successful, 
but even these will furnish a bonne bouche to a five or 
six-inch trout or perch if there is one in the stream. 
Havoc Among Raogeley Trout Fry. 
The most remarkable waste of trout fry that ever 
came to my observation, occurred a number of years ago 
at the Middle Dam, on the. Rangeley Lakes, Me. The 
gates of the dam had been wide open, and the water had 
been running over the lower flash boards the whole 
length of the dam for several weeks, and in consequence 
of this qbund^nee of water the river below the dam wa^ 
