©6 
went, for shortly I heard Louis's gun crack. That made 
me feel good, for I knew there were three or four deer 
running ahead of me, and when I heard the shot I ex- 
pected they would fret two or more, as my friend Brad 
was one of the best shots in the woods. But after the 
gun cracked, Louis began to let out the most outlandish 
yells you ever heard, and to shoot and yell for full two 
minutes at a time. I thought he must be surrounded by 
wildcats, and that they were all pitching on him, for he 
fired more than ten shots and let out more than fifty yells 
that made the woods ring. I hastened through the 
swamp as fast as I could to his relief. When I got on 
dry land and in sight of the place where I had told him 
to stand, there, or not far from there, I saw a large buck 
lying on the ground with his feet under him and my 
friend Louis standing about eight feet away and right 
straight behind the deer. Brad was about the same dis- 
tance from the buck, but directly in front of me. When 
I saw this, maybe I wasn't mad, and maybe I didn't 
abuse Louis for making such an uproar and letting the 
other deer get away without even seeing them. I did 
abuse him in no mild language for about three minutes, 
when all of a sudden the deer jumped up, turned right 
about, and, with his head down, made for Louis. Louis 
had his gun in his hand, but seemed to forget that, and 
dodged behind a small hemlock tree and began to reach 
for limbs, but he could not climb on account of the foot- 
wear he had on. Just then the deer's head struck the 
tree, one horn going on each side of it, and at that 
moment Brad yelled to Louis: "Why don't you shoot 
him?" Brad could not shoot without firing directly at 
Louis. That seemed to fetch Louis to his senses, for he 
raised his gun, took no aim, for the muzzle was not more 
than a foot from the buck's head, and fired, the ball fin- 
ishing him. If you ever saw a live corpse, Louis was 
one at that time, for Brad and I had to extend ourselves 
and brace him up. We had nothing but hunters' sooth- 
ing syrup with us, but with some labor and more syrup 
we fixed him up all right. When I saw he was in the 
land of the living, I had to scold him some more for 
yelling so when he first saw the deer. He must have 
fired at first without aiming, for the deer was not more 
than fifty feet from him, and he barely put the bullet 
through the top of the buck's neck; in fact, just enough 
to paralyze the neck, so that he could not guide his 
head ; consequently he was getting up and falling down 
in a vain attempt to get away, with Louis after him, 
shooting and yelling, but never hitting him in all the 
fracas until after he found he could not climb the tree. 
We finally got Louis and the deer into camp, and there 
was not a happier man in the woods that night than 
Louis." 
Louis, who was present, denied the tree-climbing part 
of the story, but the boys said that Bill's account was the 
one that went, and so it goes. 
While hunting on the Poplar River one fall we had an 
old hound with us. He was very old and very slow, but 
a good dog, and one whose fame as a fox hunter ex- 
tended over several counties. The old fellow would go 
out nearly every day and take a run after a deer, so that 
before long the game seemed to get used to him, and did 
not pay much attention to his bellowing. One day Doc 
and I got in rather early, and while we were eating our 
dinner we heard the old dog howling off south of us, and 
apparently making our way. We grabbed our guns and 
put off to a runway that crossed the creek about a quar- 
ter of a mile from our camp. At first it seemed as if the 
old fellow was coming right to us, but finally he ceased 
barking and nothing was heard of him ; so after about 
thirty minutes we began to talk about going back to 
camp. Finally Doc shot a red squirrel with a "squib." 
Doc sat on a log skinning his squirrel, and I stood on 
the runway, the stock of my rifle resting on the ground 
and the muzzle in my left hand. With my right hand 
and the head of a pin I was engaged in scratching out 
some rust that had formed in the muzzle. This was fully 
half an hour after the dog had stopped giving tongue. 
All at once I heard Doc make a queer sort of noise, and 
looking up, I saw a spike horn buck about one leap away 
coming straight at me at top speed. The next moment 
he would land on top of me, and crouching down I let 
a yell out of me like a freshman at a college football 
game, at the same time endeavoring to get my gun to 
my shoulder. I expected to be flattened out, but I wasn't. 
That deer while in the air twisted himself half round 
and striking the ground at right angles to me, bounded 
off unhurt, although a perfect fusillade of shots followed 
him. We never touched him. I looked like a sheep, 
while Doc rolled off his log and almost had hysterics 
laughing at the funny movements I went through trying 
to dodge that deer, while I kicked to think I didn't get a 
half dozen balls through him. About half an hour later 
the old hound came along on his track, but we caught the 
dog and went to camp. 
Some of the boys were inclined to doubt my state- 
ment that the deer turned while in the air, and said I 
imagined it, but the Colonel said he did not doubt it, 
for he had seen them go through such motions himself. 
He related how at one time, while hunting with the same 
dog, a buck just started by the old fellow came trotting 
up from a creek bottom, and was passing only eight rods 
in front of him. Just as he passed a big pine tree, at 
the roots of which lay the top of another pine which had 
been broken off by the wind, a companion who was with 
the Colonel, bleated to stop the deer and to get a good 
standing shot. Instead of stopping, as was expected, the 
old fellow jumped backwards behind the tree top and ran 
off at full speed, keeping himself so well behind the 
cover that they never got a shot. _ 
Another member of the party, as his contribution, told 
about finding, near the Spread Eagle Lake, the bodies 
of two bucks, apparently not long dead, which, while 
fighting, had interlocked their horns in such a way that 
they could not be disengaged. Both animals were 
covered with wounds, and for rods around the ground 
was all torn up and covered with blood and hair. Evi- 
dently they had a long fight, and had lived for some little 
time after they had become fastened together, for both 
were quite poor. The horns were cut from the heads, 
and so tightly were they interlaced that up to this time 
no one has been able to get them apart without breaking : 
them. During the same hunt, the Buckeye came across 
two bucks which had been fighting. Both were so badly 
p oftESf And Stream, 
used up that they could not get away, and he had no 
difficulty in shooting them. They had been at it a long 
time, and evidences of a desperate struggle were on all 
sides. They were unequal in size> but the smaller fel- 
low evidently— probably on account of his quickness- 
seemed to have the best of it, as he had more strength 
left and showed fewer wounds. 0h this sarfie hunt also 
the Buckeye killed two deer with one shot, a dOe and 
a fawn, which stood side by side when he fired. This 
caused Bill to remark that he had done the same thing. 
He was standing on the edge of a chopping and saw a 
buck walk out in plain sight. He took careful aim and 
fired. Down went the buck, when what was his surprise 
to see the legs of a deer some twenty rods further on 
kicking in the air. An examination showed that the ball 
which had broken the back of the buck had also knocked 
down a doe, which stood in the same line, but which 
Bill had never seen at all. 
"Speaking of strange shots," said S. B., "and the way 
a deer hangs to life, reminds me of an experience of 
mine on these same grounds some years ago. The Buck- 
eye and myself were out one day when he fired three 
quick shots at a deer running. The animal went on for 
nearly twenty rods as if unhurt, and then fell dead. Be- 
fore we went up to it he said: T'll bet I put every ball 
through her shoulders.' We hurried up, and looking the 
deer over found every bullet had hit her forequarters ; 
but what was more surprising, on dressing her we found 
every ball had passed througn her heart, literally tearing 
it to shreds. One ball had passed through as the deer 
approached him, one when it was squarely opposite him, 
and one after it was a little past him, and yet that deer 
went twenty rods before it fell." 
Someone remarking how queer it was that a deer could 
get through a swamp or windfall or all kinds of bad 
places, developed the fact that one of the party, while 
hunting near the "Gorge" one day, saw some fresh blood 
on the snow. Not knowing of anyone hunting in that 
vicinity, he followed the track back and found a place 
where the deer, in attempting to come down a steep 
ledge, had slipped, and in the fall had caught one of its 
front legs under a rock, seemingly breaking it below the 
knee. He followed the deer for some distance, and 
caught sight of it two or three times, - but was unable 
to get a shot. 
But the climax of descriptions that night was the ac- 
count of a buck which, chased by hounds at an early 
hour, ran into Ashland, Wis., a city of some 10,000 in- 
habitants, and took right down the main street. Finally 
it ran into the yard of a small house, through the open 
door, upstairs, and into a back room. The hook and 
ladder company of the fire department turned out to 
catch it, but while they were making their plans, the deer 
jumped through the closed window from the second 
story and broke two of its legs. It was then killed. The 
animal was about three years old, was a good sized buck, 
and evidently had been run a long time by the hounds, 
which were following close behind. Carolus. 
[to be continued.] 
Confiscating Sportsmen's Guns. 
Wymore, Nebraska, July 18. — Editor Forest and 
Stream: In your editorial entitled, "Pains and Penal- 
ties," in your issue of July 16, you seem to take the 
position that there is a conflict between the New York 
courts, or the Supreme Court of the United States, and 
the Supreme Court of Nebraska, on the question of the 
right of the State to take and destroy property found 
in use in violation of the game laws. If that is the 
position you take, I think you are mistaken. As I 
read the cases, there is no conflict. Judge Letton, who 
wrote the opinion in the Nebraska case, cites the New 
York case, and distinguishes between the two. In the 
New York case, the nets could only be used for an 
unlawful purpose, and the State under its police power 
could declare them a public nuisance, and authorize 
their destruction. The Nebraska court holds, jbut if 
property, of a nature innocent in itself and susceptible 
of a beneficial use, has been used for an unlawful pur- 
pose, a statutory provision subjecting it to siitnmary 
forfeiture to the State as a penalty or punishment for 
the wrongful use, without affording the owner thereof 
opportunity for a hearing, deprives him of his property 
without due process of law." 
This distinction is so clearly pointed out, by Judge 
Letton, in the Nebraska case, and the whole subject 
so ably discussed, that I take the liberty of sending 
you the Opinion in full, without further comment. 
A. D. McCandless. 
The Opinion. 
Letton, C. On the 3d day of August, 1902, P. E. 
McKillip, D. B. McMahon and W. E. Harvey were 
engaged in hunting prairie chickens in Boone county, 
in violation of the game law of 1901, using three shot- 
guns. The deputy game warden, Harry L. McConnell, 
seized the three shotguns while they were so engaged 
in hunting prairie chickens. P. E. McKillip was the 
owner of the guns, and the guns were valued at the sum 
of seventy-five dollars. McKillip brought an action of 
replevin against the defendant deputy game warden for 
the possession of the guns. The case was tried to the 
district court upon an agreed statement of facts, sub- 
stantially as above stated. The court found for the 
plaintiff, and rendered judgment accordingly. The de- 
fendant brings error to this court. 
The game warden claims the right to hold the guns 
under authority of Section 3 Article III., Chap. 31, 
Comp. St. 1901, which is as follows: 
All guns, ammunition, dogs, blinds and decoys,, and any and all 
fishing tackle in actual use by any person or persons while hunting 
or fishing in this State without license or permit, when such 
license or permit is required by this act, shall be forfeited to the 
State ; and it is made the duty of the Commissioner and every of- 
ficer charged with the enforcement of this act, to seize, sell or dis- 
pose of the same in the manner provided for the sale or disposi- 
tion of property on execution, and to pay over the proceeds 
thereof to the county treasury for the use of the school fund. 
He contends that the statute authorizing game wardens 
to seize and forfeit to the State all guns in actual use 
by persons hunting in violation of the game law is a 
valid exercise of the police power qI the State, while 
tjtfcV $Q, 1904. Il 
ma '*''™="ffi rii ^ T7r ftv^ 1 „ „ ,„ llllr _. _ MMI i}| 
the defendarit/ih error contends that: the aforesaidj 
statutory provision violates the provisions Of the four-1 
teenth amendment of the Constitution of' the 1 United! 
States, which declares, "nor shall any State deprive any 
person of life, liberty or property without due, process 1 
of law, nor deny to' any persdri within itsjurisdic- '; 
tion the equal . protection of thg jaWs," and of Section 3,1 
Article I.; of the Constitution Of the State of Nebraska,! 
which provides that no person shall be deprived of 
life, libery or property without due process of law.l 
The protection of wild animals suited for the purpose ■ 
of food from indiscriminate slaughter by hunters has; I 
been the object of legislation from the most ancient 
times. The theory upon which the lawmaking power j 
assumes to act is that all wild game belongs to the! 
State in its sovereign capacity as a trustee for the I 
whole of the public, and that consequently the State! 
may, as a proper exercise of its police power, adopt! 
such rules and regulations with reference to its preser-| 
yation, and such penalties with reference to a viola- 
tion of such regulations, as are necessary to accomplish] 
the end desired — the preservation to the people of the] 
State of the pleasure, sport and profit derived from the! 
hunting, pursuit and capture of the wild animals liv-; 
ing therein. In this case the defendant in error;] 
McKillip, admits that it is within the power of thel 
State, in the just exercise of its police powers, to pro- 
hibit the killing of fish and game at certain seasons of I 
the year, but denies that it has the right to take his 
property from him and confiscate it to the State with- 
out giving him his day in court. He contends that the':!, 
police power in regard to the confiscation of guns, dogs, I 
blinds, decoys and fishing tackle is upon exactly the! 
same footing as the police power in regard to the regu-l 
lation of the sale of intoxicating liquors, and that, since! 
before liquors which have been seized are destroyed! 
there must be a judicial determination by a court as J 
to whether the owner was engaged in unlawfully selling J 
or keeping for sale intoxicating liquors, so there must 
be as to his property. He further contends that since I 
the statute contains no provisions for determining 1 ! 
whether the property was liable to condemnation for 3 
the criminal acts of those who had it in their possession, S 
and since it merely^ authorized the game warden to I 
seize the property without warrant or process, to con- J 
demn it without proof, and to sell it as upon execution,! 
it deprives the defendant of the property rights which! 
are guaranteed to him by the Constitution. 
The laws of the State of New York declare that any 
net or other means or device for taking fish found in 
the waters of the State, in violation of the laws for the 
protection of fish, is a public nuisance, and authorized; 
game constables to destroy such nets. Certain nets' 
were seized and destroyed, and, an action being brought:: 
against the officers for their value under these pro- 
visions, the Court of Appeals of the State of New York 
held that the declaration by the Legislature that the nets I 
or other devices found in the waters of the State are 1 
a public nuisance is a valid exercise of the legislative ! 
power, and that the further provision requiring the de-1 
struction of such nets, such destruction being an in- j 
cident of the power of abatement of the nuisance, and! 
not a forfeiture inflicted as a penalty of the owner, is I 
not in violation of the constitutional prohibition of tak- 1 
ing property without due process of law, butl 
further held that that part of the act authorizing thel 
destruction of nets found upon the shore was uncon-1 
stitutional, since nets not found in the waters are not ! 
a nuisance per se. A writ of error being sued out to 1 
the Supreme Court of the United States from this judg- 1 
ment, that court affirmed the judgment of the .Supreme 1 
Court of New York, and says (Mr. Justice Brown de- 1 
livering the opinion): "The main ,and only real, dif-1 
ficulty connected with the action in question, is in its i 
declaration that any net, etc., maintained in violation ! 
of the law for the protection of fisheries, is to be 1 
treated as a public nuisance, 'and may be abated and 1 
summarily destroyed by any person; and it shall be the l 
duty of each and every protector aforesaid and every 1 
game constable, to seize, remove and forthwith destroy 1 
the same.' The Legislature, however, undoubtedly pos- I 
sessed the power, not only to prohibit fishing by nets 1 
in these waters, but to make it a criminal offense, and 1 
to take such measures as were reasonable and neces- 1 
sary to prevent such offenses in the future. It cer- J 
tainly could not do this more effectually than by de- 1 
stroying the means of the offense. * * * In this 1 
case there can be no doubt of the right of the Legis- I 
lature to authorize judicial proceedings to be taken fori 
the condemnation of the nets in question, and their I 
sale or destruction by process of law. Congress has | 
assumed this power, in a large number of cases, by § 
authorizing the condemnation of property which has I 
been made use of for the purpose of defrauding the j 
revenue. Examples of this are vessels illegally regis- ; 
tered or owned, or employed in smuggling or other 
illegal traffic, distilleries or breweries illegally carried j 
on or operated, and buildings standing upon or near 1 
the boundary line between the United States and an- 
other country, and used as depots for smuggling goods. 
In all these cases, however, the forfeiture was decreed 
by judicial proceeding. But where the property is of. 
little value, and its use for the illegal purpose is clear, 
the Legislature may declare it to be a nuisance, and] 
subject to summary abatement. Instances of this are 
the power to kill diseased cattle, to pull down houses 1 
in the paths of conflagrations, the destruction of de- 
cayed fruit or fish or unwholesome meats, of infected j 
clothing, obscene books, or pictures, or instruments ■! 
which can only be used for illegal purposes. While 1 
the Legislature has no right arbitrarily to declare that 
to be a nuisance which is clearly not so, a good deal 
must be left to its discretion in that regard, and, if the j 
object to be accomplished is conducive to the public 
interests, it may exercise a large liberty of choice in ; 
the means employed." . ( 
The State of Wisconsin has an act, substantially the ; 
same as : that of New York, providing for the protec- ' 
tion of fish, and authorizing the destruction of nets,! 
declaring the same to be public nuisances. In the case j 
of Bittenhaus vs. Johnston, 92 Wis. 588, 66 N. W. 805, 
32 L. R. A. 380, the validity of this provision came be- ; 
fore the Supreme Court of Wisconsin. The court say? 
