278 
FOREST AND STREAM. 
IApril 8, 1905. 
hunters. In ten days ten thousand redhead ducks wer« 
transported by one small steam launch to a distributing 
point, and many of these were killed by fire hunters in 
direct violation of a most important provision of the 
State laws, yet so great are the sums realized along 
the bays, where our best Eastern ducks are concen- 
trated the entire winter, that the market hunters actu- 
ally threaten death to any local warden who interferes, 
and naturally these officials, lacking in local support 
and dependent upon such communities for their posi- 
tions, don't care to jeopardize their lives or calling by 
a too keen discharge of their duties. 
Just miagine a revenue cutter or Government launch 
speeding through these bays bearing the message that 
Congress had passed an act protecting wildfowl, im- 
posing heavy penalties, including imprisonment, for the 
violation of its provisions, and that the night hunter 
or spring shooter would be arrested on sight, and if re- 
sisting arrest, would be put in irons and subjected to 
additional severe penalties, how long would it take for 
the repression of such law-breakers? About twenty- 
four hours. 
Migratory Game and Fish. 
I have heretofore taken the position that if our 
Government can assert jurisdiction over migratory wild- 
fowl, that, by a parity of reasoning, it can also assume 
control of the migratory fish, like the salmon and stiad. 
Judge Beaman seems willing to stand for the constitu- 
tionality of my second fish bill, which provides for 
Federal control of the food fishes in the public waters 
of the United States, but objects to the one restricted 
to those fish where the jurisdiction depends upon their 
migratory habits. Mr. Thompson believes that all 
these measures are fundamentally unconstitutional, and 
he cites, with great positiveness, several court cases 
showing the upholding of State ownership in game 
and fish. 
It would seem that his letter must have been written 
before my second one was published, wherein I stated 
that all those cases arose before any classification was 
suggested, making possible separate jurisdiction for 
local and for interstate game and fish, and hence these 
decisions are worthless, for an act of Congress, if valid, 
will render void pro tanto any State law, heretofore up- 
held, asserting ownership in that kind of game or fish 
which properly belongs to the country at large, and 
which can be made the subject of national legislation. 
For this, I will cite a recent authority, but before so 
doing wiir quote Mr. Thompson, so there can be no 
misunderstanding: "As to fish in navigable waters, 
there is no more reason to assume authority of Con- 
gress than in the case of game. Everyone knows that 
civil and criminal jurisdiction of the several States ex- 
tend— indeed, for the peace and good order of society, 
it must extend— to all the lands and waters within the 
limits of the several States; and it is immaterial that the 
waters are navigable." 
Setting aside my own opinion, it is well to remember that 
Judge Beaman takes the position that Federal laws can 
be passed to protect all game on all the public lands of 
the United States which heretofore have been exclu- 
sively covered by State game laws, so that I can quote 
my first opponent with some effect against the last orie. 
But to revert to the quotation of Mr. Thompson's. 
Here he says in express terms, that all game and fish 
are in the same class, and that fish therefore are not 
subject to the "authority of Congress," whether in 
navigable waters or not. Unfortunately for Mr. Thomp- 
son's position, the question is not in the realm of spec- 
ulation, but is refuted by a recent emphatic act of Con- 
gress which has not only been sustained by a very able 
Federal Judge, but, further than that, the State statute 
asserting primary ownership in such fish declared void 
because it conflicted with this act of Congress granting 
certain exclusive rights over fish in public waters here- 
tofore under State jurisdiction. The act of Congress is 
as follows: "The Commissioner may take or cause to 
be taken at all times in the waters of the sea coast of 
the United States, where the tide ebbs or flows, and also 
in the waters of the lakes, such fish or specimens there- 
of as may in his judgment from time to time be needful 
or proper for the conduct of his duties, any law, cus- 
tom or usage of any State to the contrary notwithstand- 
ing."— Stc. 4398 U. S. Revised Statutes. 
Under this act the Government authorities have the 
right to take at any time, whether the season be open or 
closed under the State laws, all the fish required for the 
conduct of its fishery enterprises, and this jurisdiction 
extends throughout the Atlantic and Pacific coasts, the 
bays, estuaries, sounds and tidal rivers, practically cov- 
ering all State waters where the shad and salmon are to 
be found, while on the Great Lakes the Government has 
equal power, all State laws "to the contrary notwith- 
standing." 
The State of Michigan objected to the U. S. Gov- 
ernment's representatives catching whitefish and lake 
trout during the closed season and selling the fish to 
defray expenses after the spawn had been removed, 
citing an act of the State Legislature putting the fish- 
ing operations of the U. S. Government under the 
supervision of the State game warden. On this branch 
of the case, U. S. Commissioner of Fisheries Geo. M. 
Bowers said in his annual report for 1904, "In its ef- 
forts to maintain the supply of commercial fishes, the 
Bureau has nowhere labored more assiduously and ex- 
pended more money than in Michigan, which State has 
most valuable fishery interests at stake m all of the 
Great Lakes, except one. For many years the fish- 
cultural work of the Government on the Great Lakes 
has been on an immense scale, far exceeding that in 
any other section of the country, and of the unmistakable 
benefits resulting therefrom the Michigan fishermen have 
reaped the largest share. Notwithstanding these facts, 
however, the fish wardens of Michigan have for a num- 
ber of years made determined efforts to interfere with 
and curtail the work of the Bureau's representatives, 
raising petty objections to the methods pursued in the 
collection of spawn. Their short-sighted and unwar- 
ranted actions have caused great annoyance, and at 
times have threatened completely to stop fishcultural 
work in the Michigan waters of the Great Lakes. 
Friction continued to develop , between the State and 
National authorities until the former finally caused the 
f rrest of the employee of th^ . BBreaq qI Fisheries for 
fishing out of season, and also selling the fish without 
accounting for the proceeds to the State authorities. 
The Federal agents, acting under legal instructions from 
\yashington, concluded to assert the rights of the Na- 
tional Government to take fish in those public waters 
over which Congress had declared itself supreme, and 
thereupon applied for an injunction in the U. S. Circuit 
Court. 
Decision Svstainiog Act of Congress, and Invalidating 
State Fish Law. 
The proceedings came before Judge Wanty in the 
Circuit Court of the United States for the western dis- 
trict of Michigan, and I quote the material parts thereof 
(the italics being mine) : 
United States of America, Complainant, 
vs. 
Chapman and Biuewster, Defendants. 
Opinion of Judge Wanty. 
"Under the act of Congress providing therefor, the 
President of the United States appoints a Commissioner 
of Fish and Fisheries, whose duty it is to investigate 
the subject with a view of ascertaining what diminution, 
if any, in the number of food fishes of the coast and the 
lakes of the United States has taken place, and from 
what cause the same is due, and whether any protective, 
prohibitory or precautionary measures should be 
adopted in the premises, and report upon the same to 
Congress. It is also provided that the heads of the 
several executive departments shall cause to be rend- 
ered all necessary and practical aid to the Commis- 
sioner in the prosecution of his investigationvand in- 
quiries, and Section 4398 of the Revised Statutes pro- 
vides that 'the Commissioner may take or cause to be 
taken at all times in the waters of the sea coast of the 
United States, where the tide ebbs and flows, and also 
in the waters of the lakes, such fish or specimens there- 
of as may in his judgment from time to time be need- 
ful or proper for the conduct of his duties, any law, 
custom or usage of any State to the contrary notwith- 
standing.' 
"A deputy of the State game and fish warden de- 
manded the right to superintend the fishing operations 
of the United States Commissioner of Fish and Fish- 
eries, which demand was refused, and he then seized 
and confiscated the fish in the possession of the Com- 
missioner's agents, and caused the arrest of Wires and 
the persons found assisting him. 
"If the United States has the right, which Congress 
evidently intended to confer by the legislation above 
quoted, and a deputy game warden can legally interfere 
with the exercise of that right, in the manner admitted 
in the answer filed in this case, then the _Gpvernment 
is entitled to the contempt which the deputy game ,^war- 
den exhibited toward it. The United States cannot 
undertake any work where it is not supreme, and a 
Government officer could not, in any legitimate function 
of the Government, be under the direction and control 
of a State officer. If the Federal statute, by which it 
was intended to confer on the Commissioner the right 
to take or cause to be taken in the waters of the lakes 
such fish as in his judgment is needful for the proper 
conduct of his duties, is constitutional, the legislation is 
exclusive, and any act of any State, so far as it conflicts 
with that legislation, is void. The Attorney-General, in 
his brief, says: 'The defendants contend that the right 
of complainant to so take fish can be exercised only 
pursuant to the authority granted to the United States 
Fish Commission by the laws of the State of Michigan; 
that the power of complainant is limited and defined by 
those laws, and that any enactment of Congress contra- 
vening the statutes of this State in relation to such fish- 
ing is unconstitutional and void.' 
"The act of Congress, if invalid, is so because it con- 
flicts with the Federal Constitution, and not because it 
contravenes the statutes of the State of Michigan. If it 
is decided that the United States has no right to take 
fish, under the act of Congress, its propagation of food 
■fishes must cease, because it would be intolerable for it 
to exercise any of its functions under the direction and 
control of persons over whom it has no authority. 
"If the acts of Congress creating this department a/re 
void, the Government must of necessity suspend-it, and 
such suspension would mean an immense loss to the. 
State of Michigan, and probably a much greater loss to 
the States bordering on tidewater, where shell fish are 
propagated. The constitutionality of this legislation has 
not before been questioned in the courts, and if the laws 
of the United States seeking to confer upon the Com- 
missioner of Fish and Fisheries the right at all times to 
take fish needful for the conduct of his duty, notwith- 
standing contrary legislation by the State, is unconsti- 
tutional, such grave consequences must flow from a 
judgment announcing it that it seems to rne not proper 
to pass upon that question on a preliminary hearing 
where the preparation must of necessity be inadequate." 
This decision settled the controversy, and from that 
time the local and National authorities have gotten 
along amicably. 
The right here exercised to take any kind of fish, in 
any quantities, at any time of year, in practically all of 
the public waters v/here the Government was inter- 
ested in its operations, is too clear an exercise of 
supreme authority over v/aters" admittedly covered by a 
State law for Mr. Thompson or any one else to gain- 
say, and it must necessarily follow that if the above 
act and the law as laid down by the Federal court is 
sound, there can be no doubt of Congress having the 
power to pass other "protective, prohibitory, or pre- 
cautionary measures" as expressly contemplated by the 
original act creating the Commission of Fisheries — and 
as within the scope of such legislation, I respectfully 
submit my two fish bills. - 
A Recent Federal Decision on Migratory Fish. 
On March 9 of the present year there appeared in 
the advance sheets of the Federal Reporter (No. 2, 
Vol. 134, page 282) the case of McDonald & Johnston 
et.al., vs. Southern Express Co. U. S. Circuit Court, 
District. of South Carolina, which should be of interest 
to all those interested in game cases, and as it touches 
upon -the very argument used by me in behalf of the 
\)\\\ giving th^ Government control of th^ migratory 
sea fish, I will quote therefrom, after stating briefly the 
facts. 
The State of South Carolina on Feb. 16, 1904, passed 
an act prohibiting the shipment of any shad fish be- 
yond the limits of the State, and made it a misdemeanor 
for any common carrier to transport such fish beyond 
the State. Upon the Southern Express Co. refusing to 
receive and carry such fish the complainants filed a bill 
alleging that, "They were dealers and shippers of shad 
fish caught within and without the State; that said shad 
fish was a recognized article of interstate commerce; 
that the Congress of the United States had by several 
statutes provided for the propagation of shad fishes and 
had expended large sums of money and deposited many 
millions of shad fishes or shad fry in the coast waters ! 
of the United States, for the benefit of the citizens of i 
the United States, and that the act above mentioned was i 
in contravention of Article I, Section 8, of the Consti- 
tution of the United States." 
The case came for final hearing before Judge Brawley,' 
who decided that the act was broad enough to cover 
shad taken without the State, and that therefore the 
interdiction upon shipment was in violation of Article! 
I, Section 8 of the U. S. Constitution, as an interference! 
with interstate commerce, and held the act to be void.'' 
His opinion is a long and interesting one, in which,! 
with apparent reluctance, he adopts as an authorityj 
Geer vs. Connecticut, relied upon by Judge Beaman in' 
support of his contention that all game on State lands ^ 
belongs to the people of the State in their collective ' 
capacity; but in so deciding he significantly says, 
"whether the shad fish, owing to its pecuHar nature 
and to the circumstance that its presence within the 
waters of the State, is due largely to the methods of 
propagation and to the expenditure of moneys by the 
general Government for the benefit of all the people of , 
the United States, should be differentiated from this 
classification is an interesting question raised by the 
pleadings, and may be considered hereafter." _ But, hav- 
ing come to the conclusion that the law was invalid, he 
found it unnecessary to "differentiate" fish that were 
largely propagated by the Government, and that spent 
their non- spawning period in the high seas, from those 
purely local fish permanently remaining within the 
waters of the State. Can there be any doubt that Judge 
Brawley would have sustained an act of Congress ex- 
pressly regulating the catching of this migratory fish 
(just as Judge Wanty did in the Michigan case), when 
we consider that he struck down the State law, on a 
narrow technical point, while indicating so clearly, that 
this class of migratory fish ought not be selfishly re-|i 
tained within a State which neither aided in its propaga-ti^ 
tion or spent money for its protection, to the- denial of; 
all other citizens whose money had made possible the; 
continued existence of this valuable fish. If this is- 
doubted, let me quote the final words of Judge Braw- 
ley's opinion: "It appears from the reports of the Fish 
Commission that over thirty millions of shad fry have 
been deposited in the rivers of this State. It seems to 
be now pretty well agreed among those learned in the 
subject that the young shad hatched out in any particu- 
lar river remain within a moderate distance of the 
mouth of that stream until the period occurs for their 
inland migration. It was formerly believed that shad,i 
during the winter, moved toward the equator, and, win- 
tering in the warmer waters of the South, started along 
the coast in almost military array, sending a detach- 
ment up each successive stream, which, by a singular 
method of selection, sought the river in which they 
first saw the light; and the argument is that shad arti- 
ficially propagated in rivers and in coast waters of the 
United States belong to all the people of the Umted 
States, and therefore a State has no power to impose 
any restriction upon such property which the United 
States, in furtherance of its poHcy of furnishing to the 
people food fishes, has not imposed. The argument is 
ingenious, and the question interesting, but the ex- 
igencies of this case do not require me to decide it. 
Suppose, however, that South Carolina, m order to, 
meet this decision, were to pass a new act prohibiting 
the shipment of shad "caught within the State, and 
the other shad States did likewise, where would the 
people of this country be? Such acts are equitable, iUc 
just, and based upon sound ethical principles when ap- " 
plied to local fish, fostered and protected by local legis- 
lation, in the local waters of each State, but utterly 
wrong when applied to valuable food fishes belonging 
to the country at large and practically dependent upon 
the Government for their permanency. Should this 
view not be correct, then we run the great danger of 
the Federal courts, in order to meet a situation like . 
this, holding that game is an article of interstate i 
commerce, and with such a decision down will go the 
greatest bulwark of game protection— the prohibition ■ 
of the sale of game"— unless still another view be taken, 
viz that shad now being admittedly dependent upon 
artificial propagation by the National Government, no i i 
longer belongs to the class ferce nature, and can there- 
fore be brought under the interstate commerce clause u 
of the Constitution without disturbing that all-impor- 
tant element by which wild game, through legislation, 
can have its manner of taking, possession, sale or ship- 
ment qualified by statute. 
Therefore, in view of these several acts of Congress 
and the opinions of Federal Judges deciding unconsti- 
tutional State laws which expressly sought to control 
and retain for the use of its citizens alone fish that, in 
one instance, migrated from the high seas and, m the 
other, fish that permanently occupied public navigable 
waters over which the Government, m behalf of the 
people of the whole nation, had supreme authority, have 
I not shown the legality of future legislation placing 
under efficient Federal control those fish and those 
birds which from their habits and environments belong 
to the people of the whole country, and not to a single 
State, which, in disregard of the rights of the many, 
would acquire exclusive title to, with the attendant 
power to wholly exterminate, if it saw fit? 
State laws for local fish and game. Federal laws for 
national and international fish and game, are proposi- 
tions, it seems to me, worthy of consideration by the 
sportsmen of this country. Geo. Shiras 30- 
WA8HINGTON, D. C, March 25. 
P S-~-In your issue reaching me to-day I see you 
tiave printed in fuU Jud^e Brawle/s opinion on m 
