Dec. 17, 1904.] 
FOREST AND STREAM. 
811 
Big-Game Refuges. 
From "American Big Game in Its Haunts," The Book of the 
Boone and Crockett Club, 1904. 
The buffalo (in 1888) had already been swept away. 
Since that date two species of elk have practically disap- 
peared from the land, one being still represented by a 
few individuals which for some years have been pre- 
served from destruction by a California cattle com- 
pany: the other, found only in the Southwest, in ter- 
ritory now included within the Black Mesa forest 
reservation, may be, perhaps, without a single hying 
representative. Over a vast extent of the territory which 
the antelope once inhabited, it has ceased to exist; and 
so speedy and so wholesale has been its disappearance 
that most of the Western States, slow as they always 
are to interfere with the privileges of their citizens 
to kill and destroy at will, have passed laws either 
wholly protecting it or, at least, limiting the number 
to be killed in a season to one, two or three. In 1888 
no one could have conceived that the diminution of 
the native large game of America would be what it 
has proved to be within the past fifteen years. _ 
That the game stock may re-establish itself in cer- 
tain localities, the Club has advocated the establish- 
ment in the various forest reserves of game refuges, 
where absolutely no hunting shall be permitted. 
Through the influence of William Hallett Phillips, 
a deceased member of the Club, a few lines inserted in 
an act passed by Congress March 3, 1891, permitted 
the establishment of forest reserves, and Hon. John 
W. Noble, then Secretary of the Interior, at once 
recommended the application of the law to a number 
of forest tracts, which were forthwith set aside by 
Presidential proclamation. Since then, more and 
more forest reserves have been created, and, thanks to 
the wisdom and courage of the Chief Magistrates of 
the Nation within the past twelve years, we now have 
more than sixty millions of acres of such reservations. 
These consist largely of rough, timbered mountain 
lands, unfit for cultivation or settlement. They are 
of enormous value to the arid West, as affording an 
unfailing water supply to much of that region, and 
in a less degree they are valuable as timber reserves, 
from which hereafter may be harvested crops which 
will greatly benefit the country adjacent to them. 
It is obvious that effectively to protect the big 
game at large there must be localities where hunting 
shall be absolutely forbidden. That any species of 
big game will rapidly increase if absolutely protected 
is perfectly well known; and in the Yellowstone Park 
we have ever before us an object lesson, which shows 
precisely what effective protection of game can do. 
It is little more than twenty years since the first 
efforts were made to prevent the killing of game within 
the National Reservation, and only about ten years 
since Congress provided an effective method for pre- 
venting such killing. He must be dull indeed who does 
not realize what that game refuge has done for a great 
ten itory, and of how much actual money value its pro- 
tection has been to the adjoining States of Montana 
and Idaho, and especially of Wyoming. The visit of 
President Roosevelt to the National Park last spring 
made these conditions plain to the whole nation. At 
that time every newspaper in the land gave long ac- 
counts of what the President saw and did there, and 
told of the hordes of game that he viewed and counted. 
He saw nothing that he had not before known of, 
nothing that was not well known to all the members 
of the Boone and Crockett Club; but it was largely 
through the President's visit, and the accounts of what 
he saw in the Yellowstone Park, that the public has 
come to know what rigid protection can do and has 
done for our great game. 
Since such a refuge can bring about such results, it 
is high time that we had more of these refuges, in 
order that like results may follow in different sec- 
tions of the West, and for different species of wild 
game; as well for the benefit of other localities and 
their residents, as for that wider public which will 
hereafter visit them in ever increasing numbers. 
A bill introduced at the last session of Congress 
authorized the President, when in his judgment it 
should seem desirable, to set aside portions of forest 
reserves as game refuges, where no hunting should 
be allowed. The bill passed the Senate, but failed in 
the House, largely through lack of time, yet some 
opposition was manifested to it by members of Con- 
gress from the States in which the forest reserves are 
located, who seemed to feel that such a law would m 
some way abridge the rights and privileges of then- 
constituents. This is a narrow view, and one not 
justified by the experience of persons dwelling in the 
vicinity of the Yellowstone National Park. 
If such members of Congress will consider, for ex- 
ample, the effect on the State of Wyoming, of the 
protection of the Yellowstone Park, it seems impos- 
sible to believe that they will oppose the measure. 
Each non-resident sportsman going into Wyoming to 
Ihunt the game— much of which spends the summer Tn 
the Yellowstone Park, and each autumn overflows into 
;the adjacent territory— pays to the State the sum of 
iforty dollars, and is obliged by law to hire a guide, for 
whose license he must pay ten dollars additional; be- 
sides that, he hires guides, saddle and pack animals, 
pays railroad and stage fare, and purchases provisions 
to last him for his hunt. In other words, at a modest 
calculation, each man who spends from two weeks to 
n month hunting in Wyoming pays to the State and 
its citizens not less than one hundred and fifty dollars. 
Statistics as to the number of hunters who visit Wyom- 
ing are not accessible: but if we assume that they are 
only t)V9 hundred in number, this means an actual 
contribution to the State of thirty thousand dollars in 
cash. Besides this, the protection of the game m such 
a refuge insures a never-failing supply of meat to the 
settlers living in the adjacent country, and offers them 
work for themselves and their horses at a time when, 
ranch work for the season being over, they have no 
paying occupation. 
The value of a few skins taken by local hunters is 
very inconsiderable when compared with such a sub- 
stantial inflow of actual cash to the State and the resi- 
dents of the territory neighboring to such a refuge. 
Moreover, it must be remembered that, failing to put 
in operation some plan of this kind, which shall abso- 
lutely protect the game and enable it to re-establish 
itself, the supply of meat and skins, now naturally 
enough regarded as their own peculiar possession by 
the settlers living where such a refuge might be estab- 
lished, will inevitably grow less and less as time goes 
on; and, as it grows less, the contributions to State 
and local resources from the non-resident tax will 
also grow less. Thirty years ago the buffalo skinner 
declared that the millions of buffalo could never be ex- 
terminated; yet the buffalo disappeared, and after them 
one species of big game after another vanished over 
much of the country. The future can be judged only 
by the past. Thirty years ago there were elk all over 
the plains, from the Missouri River westward to the 
Rocky Mountains; now there are no elk on the plains, 
and. except in winter, when driven down from their 
summer range by the snows, they are found only in 
the timbered mountains. What has been so thoroughly 
accomplished will be sure to continue; and, unless the 
suggested refuges shall be established, there will soon 
be no game to protect — a real loss to the country. 
The Cold Storage Case, 
Text of the Decision of the Court of Appeals, Dec. 6, 1904. 
The People of the State of New York, Appellant, v. Jacob V. 
Bootman et al., Respondents. 
Appeal from a judgment of the Appellate Division of the 
Supreme Court in the first judicial department affirming a judg- 
ment rendered by the Trial Term dismissing the complaint. Also 
appeal from an order affirming an order which made an extra 
allowance to the defendant. 
Frank S. Black and Henderson Peck for appellant. 
Louis Marshall and Julius Offenbach for respondents. 
Vann, J. This action was brought to recover pen- 
alties to the amount of $1,168,315 for alleged viola- 
tions of the Forest, Fish and Game Law in that dur- 
ing the close season of 1901 the defendants had in 
their possession 7,560 grouse; 4,835 quail; 1,776 ducks; 
8,848 plover; 7,108 snipe; 8,328 snow-buntings; 1,008 
redbirds; 7,607 sandpipers; 788 yellow-legs and 96 
woodcock. 
Six out of the nineteen counts of the complaint were 
disposed of by demurrer, which reduced the amount 
involved to about $325,000 (40 Misc. Rep. 27; 72 App. 
Div. 619; 173 N. Y. 622); and this sum was reduced 
by concession to about $9,960. . The facts as settled by 
stipulation are as follows: Between May 22 and 
June 2, 1901, the defendants, as co-partners, and 
in their possession at the city and county of New York 
one hundred grouse, one hundred quail, ninety-six 
woodcock and one hundred ducks, "being of the same 
grouse, quail, woodcock and ducks mentioned and de- 
scribed in the first thirteen counts of the complaint." 
Said game birds were not killed in the State of New 
York but in other States of the Union, where they 
were purchased by the defendants. They were brought 
into this State in the month of November, 1900, when 
it was lawful to possess them here and the defendants 
kept them on storage in the State of New York until 
the commencement of this action. After their ■ pur- 
chase by the defendants outside of the State, they 
"were exported from States in which they were pur- 
chased to and received by them in this State by means 
of transportation agencies engaged in inter-State com- 
merce and in the original pacKages in which they were 
packed by the shippers thereof." It was further stipu- 
lated that they were of the fair market value of $5,000 
and that the action was duly brought on the order of 
the chief game protector of this State. 
Upon the trial said stipulation was read in evidence 
and both sides rested, whereupon the trial judge dis- 
missed the complaint and the plaintiff excepted. The 
Appellate Division, by a divided vote, affirmed the 
judgment entered accordingly and the plaintiff ap- 
pealed to this court. 
The Forest, Fish and Game Law, as in force when 
it is alleged that the penalties in question were in- 
curred, became a law on the 19th of February, 1900. 
(L. 1900, ch. 20, General Laws, ch. 31.) It is to some 
extent a revision but chiefly a re-enactment of the 
Game Law of 1892 and the Fisheries, Game and Forest 
Law of 1895, a s amended at various times. (L. 1892, 
ch. 488; L. 1895, ch. 395.) So far as the questions pre- 
sented by this appeal are concerned, it is the same in 
substance as the acts considered by the court in People 
v. Buffalo Fish Company (164 N. Y. 93), where it was 
held that the Fisheries, Game and Forest Law, as 
amended, applied only to such fish as were taken from 
the waters of this State, and not to those imported 
from a foreign country. This conclusion was based 
upon the ground that the Legislature did not intend 
by the general language used in a statute so highly 
penal in character to include fish caught outside of the 
State. While three judges dissented from that con- 
clusion and three others who sit in this case but did 
not sit in that, might also have reached a different 
conclusion had the subject been before them for judi- 
cial action, we all feel bound by the rule of stare de- 
cisis to recognize that decision as settling the meaning 
of the act then under consideration so far at it was 
involved in the question at that time before the court. 
As the language used in that act in relation to fish 
does not differ in substance from the language used 
in the act now before us in relation to game, we are 
required by the same rule to hold that the Legislature 
in enacting the Forest, Fish and Game Law, as it 
stood when the defendants are alleged to have violated 
it, did not intend to make penal and criminal the pos- 
session in this State during the close season of game 
killed without the State and brought here during the 
open season. 
It is claimed, however, that the passage by Congress 
of a statute known as the "Lacy Act," removed an ob- 
stacle which had previously prevented the application 
of our game laws to the possession of imported game, 
and that the operation and effect thereof were ex- 
panded accordingly. That act provides in substance 
that foreign game when transported into any State 
shall be subjected to the laws of that State, enacted in 
the exercise of its police powers, to the same extent as 
if such game had been produced in such State, and shall 
not be exempt therefrom by reason of importation in ori- 
ginal packages. (31 U. S. Stat, at Large, ch. 553.) It 
became a law by the approval of the President on the 
25th of May, 1900, nearly three months after the pas- 
sage of the Forest, Fish and Game Law. If the Fed- 
eral statute had been passed first it would not be un- 
reasonable to believe that the Legislature intended to 
so expand the meaning of our game laws as to forbid 
the possession of imported game during the close sea- 
son. It was not passed, however, until after the en- 
actment of the State law, and hence can have no effect 
upon its meaning as declared by this court in the Buf- 
falo Fish Co. case. The defendants had a right to 
act on that decision as a correct interpretation of the 
statute and to purchase and possess the game in ques- 
tion at the time and in the manner admitted by the 
stipulation. A statute which not only imposes heavy 
penalties but also makes a violation thereof a misde- 
meanor should not receive a forced construction but 
should be construed strictly as required by the general 
rule governing the subject. 
While the Legislature did not act in time to affect 
this action, it has since removed all doubt as to its 
present intention and has thrown, some light on its 
previous intention, by so amending the Forest, Fish 
and Game Law as to provide that "wherever in this 
act the possession of fish or game, or the flesh of any 
animal, bird or fish, is prohibited, reference is had 
equally to such fish, game or flesh coming from with- 
out the State as to that taken within the State." (L. 
1902, ch. 194.) That amendment when read in connec- 
tion with the Lacy Act, and the decisions of the Fed- 
eral courts, made thereunder, removes from the re- 
gion of discussion the questions considered in the Buf- 
falo Fish Co. case in relation to the application of the 
Forest, Fish and Game Law to imported game, which 
was decided, and the effect of the commerce clause of 
the Federal Constitution, which, although discussed, 
was not decided. (Matter of Rahrer, 140 U. S. 545; 
Vance v. Vandercook Co., 170 U. S. 438.) 
It was held by a majority of the learned justices of 
the Appellate Division that the Legislature has no 
power to make the possession of imported game un- 
lawful, as it would violate the provisions of our State 
Constitution relating to the protection of property. 
We do not assent to this proposition. For time out of 
mind and in all jurisdictions, laws passed for the pro- 
tection of fish and game have been regarded as sanc- 
tioned by the police power which belongs to every 
sovereign State. The game and the fish within the 
boundaries of the State belong to the people in their 
unorganized capacity and may be taken by any citizen 
without fee or license at any time during the open 
season. It is to the interest of the State that neither 
should be wasted or destroyed and that both should 
be carefully protected, especially during the breeding 
season. Without protection the fish and game will 
soon disappear and the people thus be deprived of an 
important source of food supply, as well as a delight- 
ful recreation which promotes health and prolongs life. 
The protection of game falls within the legitimate ex- 
ercise of the police power, because it is directly con- 
nected with the public welfare, which is promoted by 
the preservation and injured by the destruction of so 
useful an article of food, free at the proper time to all 
the people of the State. Laws passed for this purpose 
do not interfere with private property, for there is no 
property in living wild animals and only as the law 
permits their capture is there property in wild animals 
after they are caught or killed. 
It was lately declared by the Supreme Court of the 
United States, when affirming a judgment of this court, 
that "the preservation of game and fish has always 
been treated as within the proper domain of the police 
power, and limiting the season within which birds and 
wild animals may be killed or exposed for sale, and 
prescribing the time and manner in which fish may be 
caught, have been repeatedly upheld by the courts. 
* * * The taking and selling of certain kinds of fish 
and game at certain seasons of the year tend to the 
destruction of the privilege or right by the destruction 
consequent upon the unrestrained exercise of the right. 
This is regarded as injurious to the community, and, 
therefore, it is within the authority of the Legislature 
to impose restriction and limitation upon the time and 
manner of taking fish and game, considered valuable 
as articles of food or merchandise. For this purpose 
fish and game laws are enacted. The power to enact 
such laws has long been exercised, and so beneficially 
for the public that it ought not now to be called into 
question." (Lawton v. Steele, 119 N. Y. 226, 152, U. S. 
133. 138; citing State v. Roberts, 59 N. H. 256; Com- 
monwealth v. Chapin, 5 Pick. 199; McCready v. Vir- 
ginia, 94 U. S. 391; Vinton v. S&elch, 9 Pick. 87, 92^ 
