aren: i ve Ce See LPR FOF PES Ces BBP PRETEEN CPt HEP INO PPA Se D 68. SSS PEPE G PEP: ee er ee Siecae pions ve SSS MaMa ty vena? ’ Ma seat they eies RS, ” vf Tit ? : ‘ we er LI! . White yt ABS RIS “ - ~ < ~ = = = ba iZ oe RST HON g tee See SRD a) AS y SQUAT “y 4 ae a) BANE INE OS Th ety Ty Fas vw ats ot yey it ocr tay hy ranged Set SRS eget az wre rae COPYRIGHT DEPOSIT: we Abe hy Vg Presi UY ait Chrys MUD ADAHTI AMD. WUaAOANTI ¢ Bh, Woe UMAR etwiba toma ty Haran eg Asani Hoe oe Natt Onna nae ‘ BY), ITHACA GUNS ITHACA GUN COMPANY ITHACA, N. Y. GAMELAW GUIDE DISCUSSING The New York State Conservation Law AS TO Forests, Fish and Game BY NELSON L. DRUMMOND Of Auburn, N. Y., Attorney at Law, Ex-member of Assembly, Special Game Protector Published by J. B. LYON COMPANY, PRINTERS ALBANY, N. Y. PRICE $1.50 POSTPAID Entered, according to Act of Congress, in 1916 by NeEtson L. DRUMMOND In the Office of the Librarian of Congress at Washington SEP 30 1916 ©cir4s7sg9g IOLA. Acuity iat CONTENTS PAGE Mera SE oMA NCCE COTM te ote) ere Se REINS csitena iS wise ae ois! 6 © Gee os a wiles iwi a wre tl CHAPTER I. Organization and general powers of the Com- mission. .. : 13 Jilelbamids arid POTeSES cy «icpayucks ce ie.+ S'e4o Ser eliniteie’ «fas aheits 20 EEL Ownership Ol CAMO i 5a ici «2 aki ataye we ' i, ay. ‘ f tig cs ee a ae 14) } Bonn ry - rie ’ aks , f 4 i, he Da bh: Va ‘ : < a } A ; ane PMMA SWRA! SET ee Tes in v ay * LV yay ng i 2 aly % t J fi ‘ ; i ae LP ORASTIGOKT. \SA NFP TN LAAR PRATT ys fie of ayy AMPS Pr aNeaS e_ EN ICEL WAN Lipa WV ee: x * Stee, Aityyee i OAL WR) (cee ea anaes Ce Pere CEMA) edi PES Rhy finer abril, Pry INTRODUCTION “All are but parts of one stupendous whole; Whose body nature is; and God, the soul.” The romance and the scope of the conservation scheme can perhaps happily be gathered from those lines of Pope. Earth and her waters and the fullness thereof, the State, within the reaches of its jurisdiction, has taken under wing and all of that wild wealth known as our natural resources has become its ward. The Conservation Law is subdivided as follows: Article I. Short Title. II. Department of Conservation. III. General Provisions. IV. Lands and Forests. V. Fish and Game. VI. Hydraulic Development. VII. River Improvement. Vila. River Regulation by Storage Reservoirs. VIII. Drainage. IX. Water Supply. TXa. Union Water Districts. While the more practical minded may attach greater importance to such branches as the extension of com- mercial forestation, hydraulics, drainage, and water supply, to the lovers of the life which is free from crowds and carking cares, the activities of those divisions in chief charge of forests, fish and game, furnish a quicker fascination. This book is devoted to a discussion of Article IV on Lands and Forests, and Article V on Fish and Game, [7] 8 Game Law GuIDE together with such other legislation as bears immediately upon the interests, rights and liabilities of the owner of the land and those who hunt or fish thereon. And partic- ular attention has been paid to the unsettled question of property rights in fish and game and to the mixed matter of posted lands. The law will of course be amended annually, but anno- tations on the margin will keep it abreast of changes. At the back of the book will be found blank pages for memoranda as to the catch or kill of fish and game. The protection of the forests against fires and com- mercial foes is from every standpoint, indispensable. The value of insectivorous birds can be appreciated from the fact that the authorities of Pennsylvania have estimated that it requires 3,600 tons of insects to feed the birds in that State one single day. According to the United States Department of Agriculture there is a loss of at least 10 per cent of the entire crop each year due to insect pests and that loss amounts to $1,000,000,000. In some of the southern states they have come to the con- clusion that cotton cannot be successfully raised without the co-operation of the quail which largely feed upon boll-weevil. It has been stated that one quail in one year will devour one and one-half tons of bugs and insects. Farmers in this State are gradually realizing that the pheasant because of his voracity and capacity for potato bugs and cabbage worms more than compensates them for the grain he eats. The food value of the fish and game legitimately taken in the State during any year would amount toward the millions. It was estimated from statistics taken that in Pennsylvania in 1914 there were legally killed at least 400,000 ruffed grouse, 2,000,000 rabbits, 37,000 quail, 225,000 squirrels, 17,000 woodeock, 37,000 water fowl, 9,500 raccoons, 400 bears, and 1,100 deer, aside from other game, furbearing animals and fish. INTRODUCTION 9 As compared with the sums expended by sportsmen in the effort to kill fish and game the appropriations made for their propagation and protection are pitifully inade- quate. ‘The Pennsylvania authorities conservatively estimated that in 1914 at least the sum of $4,000,000 in actual cash was expended in that State in the effort to destroy fish and game. Similar conditions exist in this State and the co-opera- tion of all interested in the permanence of sport must be forthcoming. No class of men is more immediately concerned with the growth of conservation than the proprietors of the land who in the main are the farmers of the State. With the exception of the public properties in the forest pre- serve and elsewhere, they are in virtual control of the natural open. Upon their premises must be kept intact and widened out the timber growths which furnish cover for the game and husband the waters upon which the fish supply depends. Over their holdings course the streams and in many cases lie the waters which must be kept stocked to afford the angler his sport. In recognition of this bond between it and the farmer, the State, along with other things, offers him its aid by furnishing at cost all kinds of trees for forestation pur- poses. Under the profitable supervision of the Com- mission, the areas which are of doubtful value for uses of cultivation may be gradually retimbered and by con- forming to the beneficial provisions of the law, the owner of forested and reforested lands can both lumber them and have them to a large extent, exempted from taxation. The land owner who actually occupies and cultivates his land or the lessees doing likewise and the members of their immediate families, are not required to procure licenses in order to enjoy the hunting on it although the State, if it saw fit, might refuse them this exemption altogether. The exclusive fishing and hunting rights which are an incident to the ownership of the land the 10 GAME Law GuIDE law protects with might and main. By properly posting his lands the owner may hold liable civilly in exemplary damages and criminally for misdemeanor, any one who trespasses against those rights without his waiver or consent. The law requires the hunter to exhibit to the owner for inspection on demand, his hunting license, thus enabling trespassers and perpetrators of malicious mischiefs to be identified, arrested and brought to book. In return for these concessions, it is not asking too much of the beneficiaries to assist in every reasonable way the enforcement of the law no matter whom it hits or hurts. The other interests of the farmer demand it, for lawlessness of any kind begets a disregard of rights. In the interests of sport, the sportsmen should support the Commission in every legitimate way and particularly should they observe the rights and even the preferences of the owners of the land. If every farmer in the State should avail himself of the provisions of Part XI of Article V and because of the lawless acts which are so frequently committed, should enforce the law which pro- tects his rights, against all comers, there would be little hunting or fishing outside of public lands and waters for those who were not in position and disposed to trade the favors with him. For any such condition of affairs the sportsmen alone will be responsible. No man can be said to be more generous or responsive to right treatment or the application of the golden rule than the average farm owner. The right to fish and to hunt upon his property is a valuable privilege and those who deem it otherwise would do well to abandon the sport. To have what would otherwise be a trespass, waived in one’s favor is worth at least a genuine appre- ciation and some sportsmen are wholesouled enough to share with the farmer who is too busy or otherwise unable to get afield or astream the spoils which except for his concession they would go without. It is unreasonable to expect a sportsman to be familiar with the whole law on fish and game. The big game INTRODUCTION ap hunter is likely to be less interested in small game; the bird hunter is usually indifferent to quadrupeds; and the game fish angler is not as a rule concerned enough about net fishing to ascertain to what extent it lawfully may be carried on. But every person can reasonably acquaint himself with all the law as to his particular ‘‘ hobby ”’ and should have it in the volume of his head. The authorities of Oklahoma concede that in that State the best observers of the law are the dispossessed heirs of all our natural resources, the Indians. The line of demarcation between alleged sport and avowed piracy is shadowy and obscured. But it may be safely stated that the true sportsman is he who relent- lessly enforces the law and the rights of the man by whose grace he is afield or astream against not only self but others. More than that, his maxim should be: “The law may allow much that honor prohibits; But prohibits nothing which honor allows.” Upon the basis of such a test, all of us are pirates with perhaps the advantage or disadvantage of degree. But all can make an effort to meet that measure and: It is to those prodigal lovers of the natural and spiritual open, who in its exploitation, earn health of brain and brawn, add years to youth, come close to nature’s heart and consequently near to God; who in a ‘« life exempt from public haunt,’’ unmarred by mammon, where ‘‘Adam’s penalty—the season’s difference ’”’ gives only brace and thrill, hear voices in the silence; and whether on the hills or in the woods or by the musi- cal meanders and mother o’ pearl waters of capricious streams, observe a soul in every scene and catch a melody in every noise that’s known; and who, above all else, on every tramp, deem full respect of other’s rights the fore- most due and call a modest spoil of feathers, fur or fins within the law and honor fairly won, the crown, but not the sum of all the charms of sport, that this modest volume offers its appeal. + a 4 5 nk a Cre AD, f te Lhap; 2h y *, ; | CHAPTER ——S ORGANIZATION AND GENERAL POWERS OF THE COMMISSION One of the interesting parts of the law is that deal- ing with the organization of the Commission and the Department. The Conservation Commission with its principal office at Albany, N. Y., consists of a single commissioner in chief executive and administrative charge of the depart- ment. The term Commission when used in Article VII on River Improvement means a body or board comprised of the conservation commissioner, the attorney-general, and the state engineer or their respectively designated deputies. See section 380-1. The commissioner is appointed by the governor upon confirmation by the Senate for a term of six years and is removable by him upon sustained charges of inefficiency, neglect or misconduct in office after notice and a hearing. The office is not yet a constitutional one. The Commission appoints to hold office during its pleasure, a secretary, a deputy commissioner, a superin- tendent of forests, and assistant superintendent of forests, a division engineer and two assistant engineers. The attorney-general appoints and assigns to the Com- mission a deputy attorney-general and such assistants as may be necessary. The Conservation Department is comprised of three divisions: The Division of Lands and Forests with jurisdiction over tree culture, reforestation, parks, reservations and lands is in chief charge of the Superintendent of Forests. The Division of Waters in control of water storage, [13] 14 GAME Law GuUIDE hydraulic development, water supply, river improvement, drainage, irrigation and the navigation of waters outside of the canals is in chief charge of the Division Engineer. The Division of Fish and Game in charge of fish and game including shell fish and the protection and propaga- tion thereof is in chief charge of the Chief Game Protector. In view of the fact that no man can well serve both conservation and mammon, the law makes ineligible to the positions of commissioner, deputy commissioner, secretary or chief of a department division, any person engaged in the business of lumbering in any forest pre- serve county or the distribution or sale of water or any business in the conduct of which hydraulic power is used. The present personnel of the Commission, Department and appointees in the exempt, competitive and non-com- petitive classes of the civil service is too extensive to be included in a work of this character. The rosters of the fish and game protective force and of the forest fire pro- tective force are contained in the compilations of the law published annually by the Commission. The commissioner, secretary, deputy commissioner, superintendent of forests, assistant superintendent of forests, chief game protector, deputy chief game pro- tector and division engineer, in addition to salaries, receive necessary actual expenses and disbursements. Annual reports are made by the Commission to the Legislature covering the different branches of its work, a brief description of lands purchased, statistics as to fires, trespasses on State lands and a brief summary of litigation, and reports setting forth the work of the department are published and distributed and can be secured on application. The inquiries, investigations and hearings authorized by law, to be held by the Commission may be held by or before the commissioner, the deputy commissioner or any chief of a division and may also be held by or before any officer or employee of the department designated by ORGANIZATION AND GENERAL Powers oF CoMMIssIon 15 written order filed in the office of the Commission. Every order or decision made by one other than the commis- sioner in order to become that of the Commission must be confirmed and ordered filed by him. Oaths may be administered by any one of the foregoing incumbents holding hearings or investigations. Aside from such investigations as are pertinent under Article VI on Hydraulic Development, Article VII on River Improvement, Article VIIa on River Regulations by Storage Reservoirs, Article VIII on Drainage and Article [LX on Water Supply, hearings are provided for by section 152 on additional protection and by section 153 on fish and game closes. Many other matters are the proper subjects of hearings such as fishways under sec- tion 291 and care of forests under section 50. By Section 20, it is provided that: The conservation commission shall have the power, for the state, to initiate and conduct of its own motion any proceeding pro- vided for in any article of this chapter, for the construction of improvements, or development of natural resources, for the public health or safety or welfare or any of them and if a petition is pre- sented by any person or persons or by a corporation municipal or otherwise under any such article, the commission may in its disere- tion extend the scope of such proceeding to and including any or all improvements or developments of natural resources which may be done under all or any provisions or provision of this chapter and if any part of the procedure governing the matters concerning which the petition is presented cannot be made applicable in all respects to the subject matter of the proceeding as thus extended, then the procedure peculiar to such additional matters as provided for in this chapter shall be adopted to the extent necessary. It seems that an appeal to the Supreme Court lies from any order or decision of the Commission taking the form of an application to have vacated or modified the order of the Commission. Matter of Deposit, 131 A. D. 403. 16 GamME Law GuIDE These practically limitless powers would not appear, however, to permit the Commission to institute inquiries, proceedings or investigations as to reported violations of the law as to fish and game, in the nature of ‘‘John Doe ’’ proceedings. Such authority is expressly con- ferred upon the Oregon Commissioners by section 54 of the Oregon statute in order to get cross lots to the facts and avoid frivolous indictments or prosecutions. The broad powers of the commission in the matter of subpoenas and requiring the attendance of witnesses in such proceedings are set forth in Section 24: The commission shall have the power to subpoena and require the attendance in this state of witnesses and the production by them of books and papers pertinent to the investigations and inquiries which it is authorized to make under any article of this chapter, and to examine them and such public records as it shall require in relation thereto, and for the purposes of such examinations the conservation commission shall possess all the powers conferred by the legislative law upon a committee of the legislature or by the code of civil procedure upon a board or committee, and may invoke the power of any court of record in the state to compel the attend- ance and testifying of witnesses and the production by them of books and papers as aforesaid. ' See section 854 of the Code of Civil Procedure and article 4 of the Legislative Law. Section 25 provides as follows as to the immunity of witnesses sworn in these proceedings: ‘ No person shall be excused from testifying or from producing any books or papers in any investigation or inquiry by or upon any hearing before the commission or any commissioner, when ordered to do so by the commission, upon the ground that the testimony or evidence, books or documents required of him may tend to incriminate him or subject him to penalty or forfeiture, but no person shall be prosecuted, punished or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which he shall under oath have testified or produced documentary evidence; provided, however, that no person so testifying shall be exempt from prosecution or punish- ment for any perjury committed by him in his testimony. Nothing ORGANIZATION AND GENERAL Powers oF Commission 17 herein contained is intended to give, or shall be construed as in any manner giving unto any corporation, immunity of any kind. See authorities cited under section 35, chapter XVII on Procedure. The duty of the Commission as to investigations of the water resources of the State is set forth in Section 21: It shall be the duty of the commission to continue investigations of the water resources of the state, including the systematic gaging of rainfall and stream flow throughout the state, so as to complete a comprehensive system for the entire state, for the conservation, development, regulation and use of the waters in each of the prin- cipal watersheds of the state with reference to the accomplishments of the following public uses and purposes: 1. The prevention of floods and the protection of the public health and safety in the watershed. 2. The supply of pure and wholesome water from the watershed to municipalities and the inhabitants thereof and the disposal of sewage. 3. Drainage and irrigation. 4, The development, conservation and utilization of water power in the watershed and to create a revenue for the state. 5. The protection of the public right of navigation. It shall be the duty of the commission to investigate the possi- bilities of improving and extending navigation in rivers, lakes and other water courses and bodies of water outside the canal system in each such watershed, including an investigation into the character of such waters and the use thereof for navigation and with the view of collecting data to determine the upstream limits of the publie right of navigation, and to report from time to time the result of such investigations to the end that a complete plan will be presented for the economical and comprehensive development of all water resources, for all of the aforesaid purposes, in each of the principal watersheds of the state; and each of said purposes is hereby declared to be a public use or is continued as a public use. It shall investigate and report as to the privileges heretofore eranted affecting the use of the waters aforesaid and as to the terms of such privileges and whether the conditions thereof have been complied with or the terms expired or whether revocable and investigate and report as to the diversion rights in streams hereto- fore acquired by the state and as to the use being made of the waters affected thereby. 2 18 GAME Law GuIDE Each such plan for any watershed shall set forth the develop- ments already made and authorized to be made in such watershed for one or more such purposes, whether by the state or otherwise, and the extent to which any such existing or authorized develop- ment may be improved, enlarged or extended so as to inerease or extend its efficiency for any of the aforesaid purposes, to the end that all developments in each watershed for all such purposes may be co-ordinated and unified, the rights of the state asserted and utilized so as to combine the most economical construction, mainte- nance and operation, and the most efficient service, with the pro- duction of the largest net revenue and public benefit to the state which may be practicable. While the waters of the State are subject to federal regulations as to commerce, it was held by the Attorney- General in 1912, Vol. II, Page 601, that at that point the authority of the federal government stopped and that otherwise, matters of conservation and water rights were within the sole power and province of the State. It is important to note that nothing is mentioned in Section 21 as to any public right of fishing or fowling in or on socalled navigable waters. See chapter XVIII. Toward the public purposes referred to in Section 21, it is provided in Section 22: No structure for impounding water, not a part of the canal system of the state and no dock, pier, wharf or other structure used as a landing place on waters not a part of the canal system of the state, shall be erected or reconstructed by any public authority or by any private person or corporation without notice to the commission nor shall any such structure be erected, reconstructed or maintained without complying with such conditions as the com- mission may by order prescribe for safeguarding life or property against danger therefrom. No order made by the commission shall be deemed to authorize any invasion of any property rights, publie or private, by any person in earrying out the requirements of such order. The commission shall have power, whenever in its judg- ment public safety shall so require, and after a hearing either on its own motion or upon complaint, to make and serve an order directing any person, corporation, officer or board, constructing, maintaining or using any structure hereinbefore referred to, to remove, repair or reconstruct the same within such reasonable time ORGANIZATION AND GENERAL Powers oF CoMMIssION 19 and in such manner as shall be specified in such order, and it shall be the duty of every such person, corporation, officer or board to obey, observe and comply with such order and with the conditions prescribed by the commission for safeguarding life or property against danger, therefrom, and every person, corporation, officer or board failing, omitting or neglecting so to do or who hereafter erects or reconstructs any such structures herein before referred to, without submitting to said commission and obtaining its approval of plans and specifications for such structures when required so to do by order of the commission or who hereafter fails to remove, * erect or reconstruct the same in accordance with the plans and specifications so approved shall forfeit to the people of the state a sum not to exceed five hundred dollars to be fixed by the court for each and every offense; every violation of any such order shall be a separate and distinct offense, and, in case of a continuing vio- lation, every day’s continuance thereof shall be and be deemed to be a separate and distinet offense. This section shall not apply to a dam where the area draining into the pond formed thereby does not exceed one square mile, unless the dam is more than ten feet in height above the natural bed of the stream at any point or unless the quantity of water which the dam impounds exceeds one million gallons; nor to a dock, pier, wharf or other structure under the jurisdiction of the department of docks in a city of the first class. Section 22 applies both to the marine district and the inland waters of the State and has an important bearing on such structures as unwarrantably interfere with fish- ing along the shore of public waters and the dams on streams and other bodies of water erected in the aid of fishing and fowling. See also sections 290 and 291 on dams, ete., on the inland waters of the State treated in chapter XIX. Actions to recover penalties under Section 22 may be brought to recover all incurred up to the time of the commencement thereof and the right to recover any other penalty shall not be waived thereby. Moneys recovered in such actions shall be paid into the State Treasury to the credit of the general fund. The penalty provided in Section 22 is one of the few exceptions referred to in Section 182 covering generally the matter of penalties. CHAPTER II LANDS AND FORESTS The wide powers of the Commission with reference to lands and forests are mainly directed toward the develop- ment of timber lands as the basic sources of the water supply with all which that involves. Article IV might properly be divided into two parts; the first dealing with the maintenance and perpetuation under the constitution, of the forest preserve; and the second treating of the improvement and reforestation of other lands for the purposes both of conservation and of commerce. To keep the forest preserve lands wild and as far as possible in their aboriginal condition, with all their natural standing growths and all the fallen tangles and accumulations, in protection of the water supply and as a natural cover for the game there found and propagat- ing is the primary object. To attain this end, it will doubtless be necessary for the State to purchase all the privately owned lands within the so-called blue lines marking the boundaries of the Adirondack and Catskill parks and protect them absolutely against the axe and fires. | See section 50, subdivision 6. A secondary, but important object is the development on the other lands of the State suitable therefor of a supply of timber primarily for commercial purposes and incidentally in aid of water sources, fish supply and game cover. This scheme requires the whole-souled sympathy and co-operation of the land owners of the State in order [20] LANpDsS AND F'orREstTs 21 that the timber now growing may be kept. intact and developed and other lands adaptable, reforested. Both of these arms of the project immediately concern the sportsman for game must have natural cover and fish must have unpolluted water, and the well governed exploitation of timber resources is a conservation both of fish and game. Article VII, Section 7 of the State Constitution pro- vides as to the forest preserve as follows: The lands of the state now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed. The keeping of the preserve as wild lands has been interpreted as preventing not only the removal of grow- ing, but also of dead, fallen and burnt timber; the exploitation of mineral and stone deposits; and the appropriation of water power together with any sales of any materials, including buildings. See Report of Attorney-General, 1903, page 364. See Report of Attorney-General, 1910, page 770. See section 61, subdivision 8. The socalled Long Sault Development Company grant under Chapter 355 of the Laws of 1907 for the purpose of developing water power on the St. Lawrence river was held to be violative of the forest.preserve in that it included the bed of the river within its confines. See Report of Attorney-General, 1912, vol. IT, page 576. The general constitutional principle has been applied in many cases of which the following are a choice: Adirondack R. R. Co. v. Indian River Co., 27 A. D. 326. People v. Adirondack Railroad Co., 160 N. Y. 225. People v. Brooklyn Cooperage Co., 187 N. Y. 142. Matter of Long Sault Development Co., 212 N. Y. 1. People v. Santa Clara Lumber Co., 213 N. Y. 61. 22 Game Law GuIDE The general domain embraced in the forest preserve is described in Section 62, Subdivision 1: The forest preserve shall include the lands owned or hereafter acquired by the state within the county of Clinton, except the towns of Altona and Dannemora, and the counties of Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Lewis, Oneida, Saratoga, Saint Lawrence, Warren, Washington, Greene, Ulster and Sullivan except (a) Lands within the limits of any village or city and (b) Lands not wild lands acquired by the state on foreclosure of mortgages made to loan commissioners. Lands acquired by the State on tax sales if lying within the lines are to be deemed a part of the forest preserve. See Report of Attorney-General, 1911, vol. II, page 254. ‘‘ Village ’’ as used in this section means an incor- porated village. See General Construction Law, section 54. The important tracts within the blue lines are the Adirondack Park and the Catskill Park; other tracts of note are the Saint Lawrence Reservation and the John Brown Farm. These parcels are definitely described by metes and bounds in Section 62, Subdivisions 2, 3, 4, and 9. All lands within the parks now owned or which may hereafter be acquired by the State are to be forever reserved and maintained for the use of the people. Lands within or adjacent to the parks, privately owned, are subject to certain provisions of the law and may be acquired by the commission pursuant to Section 50, Sub- division 6. See Section 54, Subdivision 1, which provides for the closing of the territory within the fire towns against fishing and hunting in times of drought, and Section 193 on the use of dogs in the parks, or forests inhabited by Lanps AND FORESTS pay deer. Adirondack maps may be secured upon application to the Commission. The forest preserve is to be distinguished from proper- ties covered by the Public Lands Law, particularly Article II on Crown Lands, Article III on Unappro- priated State Lands, Article IV on Abandoned Canal Lands, Article V on Escheated Lands and the matter of Grants of Land under Water, covered by Article VI. It has no reference to barge canal lands. This discussion is also apart from Articles IJI-VI of the Navigation Law covering the Hudson River and other waters of the State and the use of rivers and streams as public highways. The Commission has no jurisdiction over the Palisades Interstate Park comprising lands on the west side of the Hudson River in the States of New York and New Jer- sey appropriated for and devoted to scenic and other purposes under Chapter 97 of the Laws of 1895 and acts amendatory thereof except to co-operate with the com- missioners in charge of the same in the matter of the protection of forests, fish and game therein. The Cuba reservation as defined by Section 62, Sub- division 6, includes all lands owned by the State sur- rounding Cuba lake in the counties of Allegany and Cattaraugus. The other important definitions in the light of which most of the provisions of Article IV must be construed are contained in Section 62, Subdivisions 7, 8, 9, 10, 11, 12 and 13: Person includes a copartnership, joint-stock company or corpora- tion. Forest land includes not only lands which may be covered with tree growth, but also lands which are best adapted to forests. Forest fire is a fire which is not only burning forest or wood- lands, but which, if permitted to extend, would burn forest or upon forest lands. Fire towns are as follows: All towns in Hamilton county; the towns of Altona, Ausable, Black Brook, Dannemora, Ellenburg and 24 GamME Law GuIDE Saranac, Clinton county; the towns of Andes, Colchester, Hancock and Middletown, Delaware county; the towns of Chesterfield, Hlizabethtown, Jay, Keene, Lewis, Minerva, Moriah, Newcomb, North Elba, North Hudson, Sait Armand, Schroon and Wilming- ton, Essex county; the towns of Altamont, Belmont, Brighton, Duane, Franklin, Harriettstown, Santa Clara and Waverly, Frank- lin county; the towns of Bleecker, Caroga, Mayfield and Stratford, Fulton county; the towns of Hunter, Jewett, Lexington and Wind- ham, Greene county; the towns of Ohio, Russia, Salisbury, Webb and Wilmurt, Herkimer county; the towns of Croghan, Diana, Greig, Lyonsdale and Watson, Lewis county; the towns of Forest- port and Remsen, Oneida county; the towns of Corinth, Day, Edin- burg and Hadley, Saratoga county; the towns of Clare, Clifton, Colton, Fine, Hopkinton, Parishville, Piercefield, Pitcairn, Saint Lawrence county; the towns of Neversink, Rockland, Sullivan county; the towns of Denning, Gardiner, Hardenburgh, Olive, Rochester, Shandaken, Shawangunk, Warwarsing and Woodstock, Ulster county; the towns of Bolton, Caldwell, Chester, Hague, Horicon, Johnsburgh, Luzerne, Queensbury, Stony Creek, Thur- man and Warrensburgh, Warren county; the towns of Dresden, Fort Ann and Putnam, Washington county. Right of way is land adjacent to the tracks of a railroad and shall be construed to be fifty feet in width on each side of the center of the track but if the company own a lesser width it shall inelude the entire width owned by them. A fire patrolman shall be an able-bodied man whose duty is to patrol a given portion of right of way for the purpose of detecting promptly any fires which may be caused by the operation of the railroad, or other fires which may occur upon such portion of the right of way, and secure their extinguishment. Railroad or railroad company includes all common earriers, logging or lumbering roads for public or private uses wherever the motive power is generated by steam. An enumeration of the powers of the Commission as to lands and forests is contained in Section 50, Sub- divisions 1-30: The commission shall, for the purpose of carrying out the pro- visions of this article, have the following power, duty and authority : Have the care, custody and control of the several preserves, parks and other state lands described in this article. LANDS AND F‘oRESTS 25 Make necessary rules and regulations to secure proper enforce- ment of the provisions hereof. Establish, operate and maintain nurseries for the production of trees to be used in reforestation. Sueh trees may be used to re- forest any land owned by the state; supplied to owners of private land at a price not exceeding cost of production ; or used for plant- ing on public lands under such terms as may be deemed to be for the public benefit. It has been held that the State has no authority to furnish trees to owners of private lands free of charge. Attorney-General’s Report, 1910, page 761. The Pennsylvania commission is by statute authorized to distribute trees to applicants free of charge except the expense of boxing and shipping. Prepare, print, post or distribute printed matter relating to forestry. Make investigations or experiments with regard to forestry questions. Purchase, subject to the approval of the governor, lands, forests, rights in timber or any interest therein, situated within the Adiron- dack or the Catskill parks or lands contiguous, connected with or adjacent to either park. The exercise of this power will make possible the retrieval from private ownership of many tracts essen- tial to the scheme of developing the forest preserve. Receive and accept in the name of the people of the state, by gift or devise, the fee or other estate therein of lands or timber or both, for forestry purposes. Examine the forest lands under the charge of the several state institutions, boards or other management for the purpose of advis- ing and co-operating in securing proper forest management of such lands. Employ, with the approval of the superintendent of prisons, convicts committed to any penal institution or, with the approval of the governing board thereof, the inmates of other institutions, for the purpose of producing or planting trees. Such portion of the proceeds of the sale of trees grown at state institutions, as the commission determines is equitable, may be paid over to that institution. 26 GAME Law GUIDE It has been held that convict labor may be employed in the propagation of trees for reforestation purposes. Attorney-General’s Report, 1911, vol. II, page 649. Propagate trees and shrubs for the several state institutions or for planting along improved highways. Any common carrier may transport trees or shrubs grown by the state at a rate less than the established tariff. Bring any action or proceeding for the following purposes: (a) Any action or proceeding, for the purpose of enforcing the state’s rights or interests in real property, which an owner of land would be entitled to bring in like cases. (b) Such actions or proceedings as may be necessary to insure the enforcement of the provisions of this article. (c) To determine in trespass, ejectment or other suitable actions the title to any land claimed adversely to the state. (d) Bring proceedings before the comptroller or bring actions to cancel tax sales or to set aside cancellations of tax sales. This authority is particularly available for the removal of squatters on State lands and the clearance of State title from all clouds. The advisability of not waiving default in tax sales that the State might acqwre title for non-payment of taxes was urged by the Attorney-General in 1911, Vol. II, Page 95. May compromise or adjust any judgment or claims arising out of violations of any provisions of this article, except where title to land is involved. In the case of People v. Santa Clara Lumber Co., 213 N. Y. 61, it was held that the former forest, fish and game commissioner had no right to stipulate in compromise of an action involving title to lands that upon conveyance or release to the State of such disputed title and of title to other lands owned by them, the claimants could dis- pose of and remove timber from the lands so conveyed. This decision was based squarely upon the constitu- tional principle already referred to and the section as it LANpDsS AND F'oRESTS pa now reads definitely and expressly excludes from the field of compromises any litigation involving the title to land. Moreover by Section 9 it is provided that no action, suit or proceeding in which the title to lands of the State in the forest preserve counties shall be involved shail be, withdrawn or discontinued, nor shall judgment therein against the State be entered on consent except on special permission of the court on which application all the terms and conditions of the settlement shall be fully stated in writing and the reasons therefor set forth at length. See chapter XVII on Procedure. Have the custody of all abstracts of title, papers, contracts or memoranda relating thereto, except original deeds to the state, for any lands purchased for forest preserve purposes. Examine private forest lands for the purpose of advising the owners as to the proper methods of forest management. Survey, map and determine boundaries of lands owned by the state. Maintain a system of forest fire protection in the fire towns and such other areas as the commission determines necessary. Purchase necessary equipment, tools or supplies, employ men or incur other expenses as may be necessary to furnish adequate forest fire protection. Establish, maintain, equip and operate forest fire observation stations, telephone lines or other structures therefor as the public interest requires. Make contracts, agreements or purchases either for construction, operation or maintenance of telephone lines for fire protection purposes. Any telephone company may grant the state a preferred rate. With consent of the owner build or improve fire roads, ditches, trails or fire lines. No action for trespass shall lie on account of injury to private property on such account, if the act is performed in the protection of the forests from fire. Appoint necessary employees to perform such duties as are required by this article. May order removed from service, on forty-eight hours’ notice, any railroad locomotive, operating in the fire towns, not properly equipped with fire protective devices. 28 GamME Law GuIDE May grant an extension of time in which owners may comply with subdivision two of section fifty-four, when the commission is satisfied that such an extension of time will not endanger the forests to fire, but in no ease shall an extension be granted for a period of more than six weeks from the time of cutting. May relieve railroads from maintaining railroad fire patrol, or clearing rights of way when in the judgment of. the commission the absence of such patrol or clearing will not subject the forests to fire menace. May request the public service commission to hear and deter- mine whether any railroad, person or company operating railroad locomotives through forest land is using such devices and pre- cautions against the setting of forest fires, as the public interest requires. May designate persons who shall have authority to issue permits as required by subdivision five, section fifty-four. May enter into working agreements with land owners for the purpose of securing better forest fire protection in the fire towns. May make rules, regulations and issue permits for the temporary use of the forest preserve. See Rules at the close of this chapter. Shall have such other powers and duties as are provided by law. Reimburse employees for actual and necessary expenses ineurred while upon official business. The officers and employees authorized to administer the provisions of Article TV are enumerated and their duties, etc., defined in Section 51: 1. A superintendent of forests, who shall receive an annual salary of four thousand dollars per annum and who shall, subject to the direction of the commission, administer all of the provisions of this article. 2. An assistant superintendent of forests, who shall receive a salary of two thousand five hundred dollars per annum; and who — shall assist the superintendent of forests in the performance of his duties, and, in the absence or inability of the latter, shall have power to act in his place. 3. A chief land surveyor, who shall recetve a salary of two thousand four hundred dollars per annum; and who shall, under the direction of the superintendent of forests, have charge of of locating and determining the boundaries of state land. LANDS AND ForEsts 29 4. Five foresters, who shall perform such duties in reforesting, fire protection, surveys, investigations, preparation of publications and other branches of forestry as may be required. 5. Such assistant foresters as may be required, who shall assist the foresters in their duties, and perform such other duties as may be assigned them. 6. A forest pathologist, who shall examine forest trees with respect to disease, and carry on such studies as may be deemed advisable in connection with diseases attacking or lable to attack forest trees in this state. The forest pathologist shall have pursued a thorough course in forest pathology. 7. Two chief railroad inspectors, who shall inspect railroad loco- motives and other engines, railroad rights-of-way, and perform such other duties as may be assigned them. They must be familiar with the construction of locomotives and experienced in their operation. 8. A land clerk at two thousand dollars per annum, who shall be employed in filing and preparing records of state’s title to lands and perform such other duties as may be assigned him. 9. An auditor of fire accounts, who shall receive a salary of one thousand eight hundred dollars per annum. He shall audit fire bills and accounts of the forestry bureau, and perform such other duties as may be required. He shall execute and file with the comp- troller a bond to the people of the state in the sum of five thousand dollars for the faithful performance of his duties and that he will account for and pay over pursuant to law all moneys received by him. 10. Five district forest rangers, who shall receive a salary of fifteen hundred dollars per annum, and each of whom shall have charge of a certain portion of the fire towns, to be known as a fire district, for the purpose of securing forest fire protection and preventing trespass upon state land. 11. Such forest rangers as may be necessary, to be employed in the fire towns at monthly salaries of not exceeding seventy-five dol- lars; the salary of such employees shall be fixed and determined by the conservation commission. 12. Such observers as may be required to operate the forest fire observation stations, to be employed at a monthly compensation of not exceeding seventy-five dollars including allowance for expenses. The conservation commission shall fix and determine the compen- sation of these employees. 13. Necessary fire wardens, who shall, when fires are actually burning, have power and authority to take steps to extinguish 30 Game Law GuIDE fires. They shall be paid at the rate of twenty-five cents per hour for time actually employed. 14, District forest rangers, forest rangers, observers, fire wardens and game protectors or any other officer charged with the duty of fire fighting may, when necessary, employ men who shall be paid at the rate of fifteen cents per hour and teams to fight forest fires, and also engage other men to be known as foremen for particular fires to direct the work of men engaged in fighting such fires. Such foremen shall be paid at the rate of twenty-five cents per hour for time actually employed. These employees may incur other necessary expenses in connection with extinguishing forest fires. They shall have the power to summon any male person of the age of eighteen years and upwards to assist in fighting such fires, and any person so summoned shall forthwith proceed to help extinguish the fire as directed by the person summoning him. 15. The employees enumerated in subdivisions one, two, four and five of this section shall be trained foresters. The positions enumerated in subdivisions one and two shall in case of vacancy be filled by promotion examination. The employees enumerated in subdivisions one, two, three, four, five, six, seven and eight of this section shall be under the competitive civil service classification. Those persons employed under subdivisions eleven, twelve and thirteen of this section, who are temporary, occasional or emergency employees, shall not be under competitive civil service classification. 16. The employees enumerated in subdivisions one, two, three, four, seven, ten, eleven and twelve of this section shall have the power to arrest without warrant any person committing a mis- demeanor under the provisions of this article, and may take such persons immediately before a magistrate having jurisdiction for trial, and exercise such other powers of peace officers as may be necessary for the enforcement of the provisions of this article. No employees shall compromise or settle any violation of this article without the order of the commission. Compare section 169 on compromises by game protectors. In the case of People v. Klock, 55 M. 46 (1907), decided on the basis of Article VII, Section 7, of the State Con- stitution and Section 222 of the Forest, Fish and Game Law, it was held that a person who paid money to a State game protector for logs eut on State lands embraced within the forest preserve was chargeable with knowl- LANDS AND FoRESTsS 24) edge of the want of authority in the protector to receive it and the latter’s assertion of his right to do so was not a fraudulent representation of a fact for which he could be indicted for grand larceny. See People v. Gaylord, 1389 A. D. 814. This settlement was made out of court and without the sanction of the Commission and the money paid, amount- ing to $3,750, never reached the proper authorities. The following classification of Fire Districts for the purpose of protecting the forests from fire is made by Section 52: The commission, for the prevention of forest fires and the extinguishment of fires burning or threatening forests, shall, in the fire towns, maintain a force of forest rangers, observers and fire wardens. It shall maintain an approved fire protective system, including fire observation stations and other equipment necessary to prevent and extinguish forest fires. The territory included within the fire towns shall be divided into fire districts, each of which shall be in charge of a district forest ranger. The commission may establish a forest fire protective system in such other parts of the state as it may deem necessary where there are contiguous areas of forest land aggregating seventy-five thou- sand acres or upwards. In such regions the commission may estab- lish, equip and operate fire observation stations with the necessary accessories, prepare and post fire notices, organize a fire protective force, and require the town authorities to perform their duties in forest fire protection. If the town supervisor fails to certify to the conservation commission by February fifteenth of any year a list of the fire wardens for such town then the conservation commission may appoint necessary fire wardens. In the towns other than the fire towns the town supervisor shall be superintendent of fires in his town and he shall be charged with the duty of preventing and extinguishing forest fires. He shall have the power and is hereby required to appoint necessary and competent fire wardens. On or before February fifteenth of each year, the town supervisor shall state to the commission, in writing, the names of the persons whom he appoints to act as fire wardens during the current calendar year. See chapter 158 of the Laws of 1916. ae Game Law GuIDE In order to finance and carry into effect the provisions of this article the following is prescribed by Section 53: The state comptroller shall have, subject to the approval of the governor, the authority to make, on behalf of the state, a temporary loan not exceeding one hundred thousand dollars in any fiscal year, for the use of the conservation commission in protecting the forests and extinguishing fires as provided by this article upon the cer- tification of the conservation commission that an emergency exists whereby through insufficiency of appropriations it is found to be impossible to protect the forests from fire. The comptroller shall thereupon borrow such sums as may be directed by the governor for such purposes and shall report such transactions to the legis- lature which shall thereupon appropriate the moneys borrowed. Section thirty-five of the finance law shall not apply to any indebtedness so incurred. All salaries and other expenses incurred by the commission and its employees in protecting the forests in the fire towns from fire shall be paid by the state. One-half of all expense incurred under subdivision two of this section in extinguishing fires actually burning, except salaries and expenses of regular employees, shall be a charge upon the town in which the fire burned. The commission shall, on or before Novem- ber twentieth of each year, transmit to the clerk of the board of supervisors of each county containing fire towns a summary state- ment of expenses incurred together with the amount charged against each town in such county. The said clerk shall immediately deliver such statement to the board of supervisors who shall there- upon levy the said amount due from each town to the state upon the taxable property of such town by including the said amount in the sums to be raised and collected in the next levy and assess- ment of taxes therein, and the same shall be collected as other town taxes are collected and the amount due the state shall be paid by the supervisor to the conservation commission on or before May first following the levy thereof. If any person incurs expenses fighting forest fires in a fire town, the commission may upon the receipt of satisfactory proof and accounts filed in its offices within sixty days from the time the expense was incurred audit and pay all or such portion thereof as in its judgment the public interest requires. Any moneys necessarily expended by the state, a municipality, or any person in fighting forest fires may be sued for by the state, municipality or person expending the same and recovered from the person causing the fire. Such actions may be maintained LANDS AND FORESTS a3 in addition to other actions for damages or penalties and may be demanded in the same or separate actions. Towns other than fire towns may raise necessary funds for pre- vention and extinguishment of forest fires in their towns either by levy or by the supervisor making temporary loan. The comptroller may upon request of the conservation commis- sion advance, not to exceed five thousand dollars at any time, to said commission for the purpose of facilitating payment of fire accounts. Important provisions for the protection of forests from fire are made by Section 54 and it is essential to note that unless the statute is by terms limited to a particular terri- tory such as fire towns or towns adjacent to them, it is applicable to all forest lands in the State: 1. Proclamation by governor. Whenever, by reason of drought, the forests of the state are in danger of fires which may be caused by hunters, fishermen, trappers, or campers, the governor shall have the power to determine and shall determine and declare that such pursuits are contrary to the public interest, and shall have the further authority to forbid by proclamation any person or persons carrying on such pursuits in so mueh of the territory included within the fire towns as he deems the public interest requires. Such proclamation shall be in full force and effect at the expira- tion of twenty-four hours after notice is given in the manner the governor may determine. The force of this provision is to be borne in mind in connection with the open season on fish and game in the territory referred to and is to be read with Section 176 -diseussed in Chapter VI. 2. Top lopping evergreen trees. Every person who shall within any of the fire towns fell or cause to be felled or permit to be felled any evergreen tree for sale or other purposes shall cut off or cause to be cut off from the said tree at the time of felling the said tree, unless otherwise authorized by the commission before the trees are felled, all the limbs thereof up to a point where the trunk of said tree has a longest diameter which does not exceed three inches, unless the said tree be felled for sale and use with the limbs thereon or for use with the limbs thereon. 3. Fires generally. No fires shall be set on or near forest land 3 34 Game Law GuIDE and left wnquenched; no fire shall be set which will endanger the property of another; no person shall set forest land on fire; no person shall negligently suffer fire on his own property to extend to property of another; no person shall use combustible gun wads or carry naked torches on forest lands; no fire shall be set in or near forest land in connection with camping without all inflammable material having first been removed for a distance of three feet around the fire; no person shall drop, throw, or other- wise scatter lighted matches, burning cigars, cigarettes or tobacco; no person shall deface or destroy any notice posted containing forest fire warnings, laws, or rules and regulations. 4. Unpiloted hot air balloons. No unpiloted hot air balloons shall be sent up in any fire town or in a town adjacent thereto. 5. Fires to clear land. No person shall set or cause to be set fire for the purpose of clearing land or burning logs, brush, stumps, or dry grass, in any of the fire towns, without first having obtained from the commission a written permit so to do. If such burning is done near forest lands and if there is danger of the fire spreading, a person designated to issue such permits must be present. 6. Protection on steam plants. No device for generating power which burns wood, coke, lignite or coal shall be operated in, through or near forest land, unless the escape of sparks, cinders, or coals shall be prevented in such manner as may be required by the commission. 7. Material adjoining rights of way. In fire towns brush, logs, slash or other inflammable material shall not hereafter be left within twenty-five feet of the right of way of a railroad or within twenty feet of the right of way of a public highway and consti- tutes a fire hazard, the conservation commission may order the owner to remove the same within twenty days. 8. Deposit of inflammable material. No person shall deposit or leave in any of the fire towns, brush or inflammable material upon the right of way of highways. See section 1900 of the Penal Law. Tn this connection the provisions of Section 1421 of the Penal Law are applicable and vital: A person who, under circumstances not amounting to arson in any of its degrees: 1. Wilfully burns or sets fire to any grain, grass or growing crop, or standing timber, or to any buildings, fixtures or appurtenances to real property of another; or LANDS AND FORESTS oD 2. Wilfully sets fire to, or assists another to set fire to any wild, waste or forest lands, belonging to the state or to another person whereby such forests are injured or endangered ; Is guilty of a felony and is punishable by imprisonment for not more than ten years or by a fine not more than two thousand dollars, or by both. ear In order to secure proper protection to the forests from fire the railroads which operate through such terri- tory are subject to the following restrictions as set forth in Section 55: 1. Railroad patrol. All railroads shall, on such parts of their rights of way as are operated through forest lands, maintain from April first to November fifteenth of each year a sufficient number of competent fire patrolmen unless relieved by the commission. The railroad shall file in the office of the commission on or before April first of each year a complete list of such patrol indicating the names of the men, their post-office addresses and portion of right of way assigned each patrolman. If any changes are sub- sequently made similar data shall be furnished on request of the commission. 2. Clearing rights of way. The right of way of all railroads which are operated through forest lands shall be kept cleared of all inflammable material whenever required by the commission. 3. Locomotives to be equipped. No locomotive shall be operated unless equipped with fire protective devices of ashpan and front end which have been approved by the commission. Such devices shall be maintained and properly used. 4. Reports of fires. A verified report of every forest fire which originates on the right of way or within two hundred feet thereof in any of the fire towns or protected forest lands, shall be prepared by the railroad concerned, upon blanks furnished by the com- mission, and filed in the office of the commission within ten days after such fire occurs. 5. Examination of engine and records. Every railroad com- pany shall examine each coal burning locomotive each day it is operated between March first and December first, and record the condition of the fire protective devices in a book kept for that purpose. Such book shall be kept on file and be accessible to inspectors of the conservation commission. 6. Deposit of coals, et cetera. Fire, live coals or hot ashes shall not be deposited unless properly protected upon any track or right of way on or near forest land. 36 Game Law GuuIDE 7. Use of protective devices. Employees of a railroad shall at all times use in a proper and effective manner the fire protective appliances provided by such railroad. The provisions of the above section are generally applicable to all railroads operating through all forest lands in the State. See People v. Long Island R. R. Co., 126 A. D. 477, 194 Ni Y. (#30: (1909). In ease of damage by forest fire negligently caused the injured party may maintain actions in accordance with such of the following provisions of Section 56 as are applicable thereto and shall have redress therefor: 1. Injury to state lands. Any person who causes a fire which burns on or over state lands shall be liable to the state for treble damages and, in addition, to a penalty of ten dollars for every tree killed by such fire. 2. Injury to municipal or private lands. Any person who causes a fire which burns on or over lands belonging to another person or to a municipality shall be lable to the party injured for actual damages in ease of fire negligently caused or for damages at the rate of one dollar for each tree killed or destroyed in case of fire wilfully caused. 3. Recovery for damages from fires. The state, a municipality or any person may sue for and recover under subdivisions one or two of this section, however distant from the place where the fire was set or started and notwithstanding the same may have burned over and across several separate, intervening and distinct tracts, parcels or ownerships of land. While a general liability for fires exists apart from the statute, on the ground of negligence, this section, par- ticularly Subdivision 3, appears definitely to have dis- posed of the doctrine laid down in the cases of Ryan v. New York Central R. Co. 35 N. Y. 210 (1866), and Penn- sylvania R. Co. v. Kerr, 62 Pa. St. 353, and such authori- ties as have followed them to the effect that distance, Lanps anp ForsEsts 37 intervening tracts, etc., may destroy the liability. It has also settled the matter of the measure of damages. See O'Neil v. N. Y.,.O. & W. R. Co., 115 N. Y. 579. People v. N. Y. C.& H.R. R.R. Co., 213 N. Y. 136 (1914). People v. L. I. R. RB. Co., 149 A. D. 765 (208 N. Y. 541). 4. Method of computing value of state property. Damages to state lands and timber shall be ascertained and determined at the same rate of value as if such property were privately owned. 5. Prima facie cause on right of way. The fact that a fire originates upon the right of way of a railroad shall be prima facie evidence that the fire was caused by negligence of the railroad company. 6. Prima facie cause in clearing lands. Whenever a fire has been set for the purpose specified in subdivision five of section fifty-four in any of the fire towns it shall be prima facie evidence that the fire was started by the owner or occupant. of the land. ‘ bam, In order to encourage and secure from land owners, generally, more intimate co-operation in reaching results under Article IV, it is provided by Section 57: In consideration of the public benefit to be derived from the planting and growing of forest trees, and to the end that the ' growth of forest trees may be encouraged, and the water supply of the state protected and conserved, and that floods may be pre- vented, the owner of any waste, denuded or wild forest lands, of the area of five acres or upwards, within the state, which are unsuitable for agricultural purposes, who shall agree with the commission to set apart for reforestation or for forest tree culture, the whole, or any specific portion of such waste, denuded or wild forest lands, of the area of five acres or upwards, may apply to the conservation commission, in manner and form to be prescribed by it, to have such lands separately classified as lands suitable for reforestation or underplanting within the purposes and provisions of this section. Each application for such classification shall be accompanied by a plot and description of the land, and shall state the area, character and location thereof, and such other information in reference thereto as the commission may require; such application shall be accompanied by a certificate of the assessors of the tax district or districts in which said lands are located, which shall set 38 Game Law GuIpE forth the assessed valuation of said lands for the last five years preceding the date of such application; or if said lands have not been separately assessed during any part of said period or the timber has been removed therefrom at any time during said period of five years, by a sworn statement of the assessors of the value of said lands, which lands shall be valued at the same rate as other waste, denuded or wild forest lands in said tax district simi- larly situated, such application shall also contain a declaration that the owner intends to reforest or underplant the lands described in such application with such number and kind of trees per acre and in such manner as the commission shall specify, and to comply with all reasonable rules and regulations of the commission in reference to future care and management of said lands and trees. If it appears from said application and certificate or sworn statement that said lands are suitable for reforestation or under- planting purposes and have not been assessed during the period of five years next preceding the date of such application at an average valuation of more than five dollars per acre, or that similar lands in said vicinity have not been assessed for more than five dollars per acre, the said commission shall, as soon as practicable after the receipt of such application, cause an examination to be made of the land for the purpose of determining whether or not it is of a character suitable to be reforested or underplanted and to be classified as such. After such examination if the commission shall determine that such lands are suitable for reforestation or underplanting, it is hereby empowered to: enter into a written agreement with the owner, which agreement shall be to the effect that the commission will furnish said owner, at a price not to exceed cost of production, trees to be set out upon said lands, the kind and number to be prescribed by the commission, and to be set forth in said agree- ment; that the owner will set out upon said land the number and kind of trees per acre designated by the commission; and that said land will not be used for any purpose other than forestry purposes, during the period of exemption, without the consent of the commission; and that said lands and the trees thereon will be managed and protected at all times during the period of said exemption in accordance with the directions and instructions of the commission. e Said agreement shall be recorded in the office of the county clerk of the county where the lands are situated, and the provisions thereof shall be deemed to be and be covenants running with the land. Within one year after the making of such agreement, said lands shall be planted by the owner with the number and kind of Lanps AND FORESTS 39 trees specified therein; and the owner shall file with the commis- sion an affidavit making due proof of such planting, which affidavit shall remain on file in the office of said commission. Upon the filing of such affidavit the commission shall cause an inspection of such lands to be made by a competent forester who shall make and file with said commission a written report of such inspection. If the commission is satisfied from said affidavit and report that the lands have been forested in good faith as provided in said agreement, it shall make and execute a certificate under its seal, and file the same with the county treasurer of the county in which the lands or any part thereof so forested are located, which cer- tificate shall set forth a description of said lands, the area and the owner thereof, the town in which the same are situated, a state- ment that the land has been separately classified for taxation in accordance with the provisions of this section and a valuation in excess of which, said lands shall not be assessed for the period of thirty-five years, which valuation shall not in any event be greater than the average valuation at which the same lands were assessed for the last five years preceding the date of said appli- cation, or the value of such lands as appears by the aforesaid sworn statements of the assessors of such tax district, and a statement that the trees and timber thereon shall be exempt from taxation during said period. Upon the filing of such certificate it shall be the duty of the county treasurer to file with the assessors of each tax district in which the lands described are located, a certified copy thereof, and the assessors of such tax district shall place the lands according to the description contained in said certificate upon the next assess- ment-roll, prepared for the assessment of lands within such tax district, at a valuation not to exceed the amount stated in said certificate, and not to exceed the assessed valuation of similar lands in said tax district; and said assessors shall insert upon the margin of said assessment-roll opposite the description of said lands, a statement that said lands shall not be assessed during the period of thirty-five years at a value in excess of said amount and that the trees and timber growing upon said land shall be wholly exempted from taxation during said period; and said assessors shall also insert upon the margin. of said assessment-roll the date of expiration of said exemption. Such lands shall be assessed and continue to be assessed, and carried in such manner, upon the assessment-rolls of such towns until the end of the exemption period. In the event that lands so elassified shall, in the judgment of the commission, cease to be used exclusively for forestry purposes 40 Game Law GuIDE to the extent provided in the agreement between the conservation commission and the owner, or that said owner has violated its terms, or any reasonable rules and regulations of the commission in respect to the use of or the cutting of timber on said lands, the exemption from taxation provided in this section shall no longer apply; or at the election of the commission such owner may be also restrained from said acts by injunction; and the assessors having jurisdiction shall, upon the direction of the commission, assess said lands against the owner at the value, and in the manner provided by the tax law for general assessment of land. The planting or underplanting of a tract in forest trees in com- pliance with the agreement as provided in this section shall be taken and deemed to be an acceptance by the owner of the exemp- tion privileges herein granted and of the conditions herein imposed; and in consideration of the public benefit to be derived from the planting, underplanting, cultivation and growth of such trees the exemption of such trees from taxation and the taxation of land upon which such trees are grown as herein provided, shall be con- tinued and is hereby assured; and the right to such exemption and taxation shall be inviolable and irrevocable as a contract obliga- tion of the state, so long as the owner of the land so planted shall fully comply with and perform the conditions of such contract not exceeding said period of thirty-five years. Supplemental to the above enactment are Sections 16 and 17 of the Tax Law. Section 16 provides for certain exemptions and reduc- tions in assessment of lands planted with trees.for for- estry purposes or in other words reforested lands: Whenever the owner of lands, to the extent of one or more acres and not exceeding one hundred acres, shall plant the same for forestry purposes with trees to the number of not less than eight hundred to the acre, and whenever the owner of existing forest or brush lands to the extent of one or more acres and not exceeding one hundred acres, shall underplant the same with trees, to the number of not less than three hundred to the acre, and proof of that fact shall be filed with the assessors of the tax district or districts in which such lands are situated as hereinafter provided, such lands so forested shall be exempt from assessment and taxation for any purpose for a period of thirty- five years from the date of the levying of taxes thereon immediately following such planting, and such existing forest or brush lands so underplanted shall be assessed at the rate of fifty per centum of the Lanps AND ForegstTs 41 assessable valuation of such land exclusive of any forest growth thereon for a period of thirty-five years from the date of the levying of taxes thereon immediately following such underplanting. The owner or owners of lands forested as above provided, in order to secure the benefits of this section, shall file with the conservation commission an affidavit making the due proof of such planting or underplanting and setting forth an accurate description of such lands, the town and county in which the same are situated, the number of trees planted or underplanted to the acre and the number of acres so forested, which affidavit shall remain on file in the office of said com- mission. Upon the filing of such affidavit it shall be the duty of the conservation commission to cause an inspection of such forested lands to be made by a eompetent forester or other employee of said commis- sion who shall make and file with said commission a written report of such inspection. If the commission is satisfied from the said affidavit and the report of inspection that the lands have been forested as above provided, in good faith and by adequate methods to produce a forest plantation, and are entitled to the exemption of assessment or to a reduction of assess- ment as provided in this section, it shall make and execute a certificate under the seal of its office, and file the same with the county treasurer of the county in which the lands so forested are located, which cer- tificate shall set forth a description of the lands affected by this see- tion, the area and owner or owners thereof, the town or towns in which the same are situated, the description upon the last assessment-roll which included said lands, the period of exemption or reduction of assessment to which such lands are entitled and the date of the expi- ration of such exemption or reduction of assessment. Upon the filing of such certificate it shall be the duty of the county treasurer to file with the assessors of the tax district in which the lands described therein are located within ten days after the receipt thereof a certi- fied copy of such certificate, and the assessors of such tax district shall place the lands according to the description contained in said certificate upon the next assessment-roll prepared for the assessment of lands within such tax district, and shall exempt, or reduce the assess- ment upon, the lands so described as hereinbefore provided, and shall insert upon the margin of said assessment-roll opposite the descrip- tion of said lands, a statement that in aecordance with the provisions of this section of the tax law said lands are exempt from taxation or that the assessment thereof is reduced fifty per centum as the case may be and insert also in the margin the date of the expiration of such exemption or reduction of assessment and such lands shall con- tinue to be exempted, assessed and carried in such manner upon the 42 GamME Law GuIDE assessment-rolls of such town until the date of the expiration of such exemption or reduction of assessment. Lands which have been forested as above provided within three years prior to the taking effect of this section may come within its pro- visions if application therefor is made to the conservation commission within one year from the time when this section takes effect, but except as provided by this section the period of exemption or reduction as certified to by the conservation commission shall not exceed the period of thirty-five years from the date of the original planting. Lands situ- ated within twenty miles of the corporate limits of a city of the first class, or within ten miles of the corporate limits of a city of the second class, or within five miles of the corporate limits of a city of the third class, or within one mile of the corporate limits of an incorporated village shall not be entitled to the exemption or reduction of assess- ment provided for by this section. In the event that lands exempted or reduced in taxation as above provided shall, by act of the owner or otherwise, at any time during the period of exemption or reduction in taxation cease to be used exelu- sively as a forest plantation to the extent provided by this section to entitle such land to the privileges of this section, the said exemption and reduction in taxation provided for in this section shall no longer apply and the assessors having jurisdiction are hereby empowered and directed to assess the said lands at the value and in the manner provid by the tax law for the general assessment of land. If any land exempted under this section continues to be used exclu- sively for the growth of a planted forest after the expiration of the period of exemption provided hereby, the land shall be assessed at its true value and the timber growth thereon shall be exempt from taxa- tion, except if such timber shall be cut before the land has been duly assessed and taxes regularly paid for five consecutive years after the exemption period has expired, such timber growth shall be subject to a tax of five per centum of the estimated stumpage value at the time of cutting, unless such cuttings are thinnings for stimulating growth and have been made under the supervision of the conservation commission. Whenever the owner shall propose to make any cutting of such timber growth for a purpose other than for thinning as above pro- vided, he shall give thirty days’ notice to the assessors of the tax district on which the land is located, who shall forthwith assess the stumpage value of such proposed cutting, and such owner shall pay to the collector of the town in which such land is situated before cutting such timber five per centum of such assessed valuation. If such owner shall fail to give such notice and pay such taxes he shall be liable to a LaNpbs AND F'oRESTS 43 penalty of three times the amount of such tax and the supervisor of the town may bring an action to recover the same for the benefit of the town in any court of competent jurisdiction. Section 17 provides for somewhat similar exemption and reduction in assessment of lands maintained as wood lots or lands kept forested: In order to encourage the maintenance of wood lots by private owners and the practice of forestry in the management thereof, the owner of any tract of land in the state, not exceeding fifty acres, which is oceupied by a natural or planted growth of trees, or by both, which shall not be situated within twenty miles of the corporate limits of a city of the first class, nor within ten miles of the corporate limits of a eity of the second class, nor within five miles of the corporate limits of a city of the third class, nor within one mile of the corporate limits of an incorporated village, may apply to the conservation commission in manner and form to be prescribed by it, to have such land sepa- rately classified for taxation. Application for such classification shall be made in duplicate and accompanied by a plot and description of the land, and such other information as the commission may require. Upon the filing of such application it shall be the duty of the com- mission to cause an inspection of such land to be made by a com- petent forester for the purpose of determining whether or not it is of a suitable character to be so classified. If the commission shall determine that such land is suitable to be so classified, it shall submit to the owner a plan for the further manage- ment of said land and trees and shall make and execute a certificate under the seal of the commission and file the same with the county treasurer of the county in which the land is located, which certificate shall set forth a description and plot of the land so classified, the area and the owner thereof, the town or towns in which the same is situated, and that the land has been separately classified for taxation in accord- ance with the provisions of this section. Upon the filing of such certificate it shall be the duty of the county treasurer to file with the assessors of the tax district in which the land described therein is located, within ten days after receipt thereof, a certified copy of such certificate. So long as the land so classified is maintained as a wood lot, and the owner thereof faithfully complies with all the provisions of this section and the instructions of the commission, it shall be assessed at not to exceed ten dollars per acre and taxed annually on that basis. In fixing the value of said lands for assessment, the assessors shall in no case take into account the value of the trees 44 Game Law GuwuIDE growing thereon, and said land shall not be assessed at a value greater than other similar lands within the same tax district. The assessors of each tax district where said land so classified is located shall insert upon the margin of said assessment and opposite the description of such land a statement that said land is assessed in accordance with the provisions of this section. In the event that land so classified as above prescribed shall at any time by act of the owner or otherwise cease, in the judgment of the commission, to be used exclusively as a wood lot to the extent provided by this section to entitle the owner of such land to the privileges of this section, the exemption and valuation in taxation provided for in this section shall no longer apply and the assessors having jurisdiction shall, upon the direction of the commission, assess the said land at the value and in the manner provided by the tax law for the general assessment of land. Whenever the owner shall propose to cut any live trees from said land, except for firewood or building material for the domestic use of said owner or his tenant, he shall give the commission at least thirty days’ notice prior to the time he desires to begin eutting, who shall designate for the owner the kind and number of trees, if any, snost suitable to be eut for the purpose for which they are desired, and the cutting and removal of the trees so designated shall be in accord- ance with the instructions of said commission. After such trees are cut and before their removal from the land, the owner shall make an accurate measurement or count of all of the trees eut and file with the assessors of the tax district a verified, true and accurate return of such measurement or count and of the variety and value of the trees so cut. The assessors shall forthwith assess the stumpage value of the timber so cut, and such owner shall pay to the tax collector of the town in which such land is situated, before the removal of any such timber, five per centum of such valuation. If such owner shall fail to give such notices and pay such taxes he shall be liable to a penalty of three times the amount of such tax, and the supervisor of the town may bring an action to recover the same for the benefit-of the town in any court of competent jurisdiction. Wherever possible within the limitations of the law and wherever practicable, every owner of land in the State should avail himself of the benefits of these pro- visions. The primary advantage is his and the aid afforded the conservation scheme can work him only profit in more forms than one. Here is also presented to associations organized for the advancement of the cause of fish and game a choice Lanps AND ForEsts 45 chance to co-operate with the Commission and the farmer by encouraging the grasp of these opportunities and giv- ing reasonable financial aid to the establishment and maintenance of those forest growths which shelter and assure all wild life. The development of forest lands may be taken up by counties, cities, towns or school districts and they may acquire by purchase or gift or take over lands in their possession within their boundaries and use them for forestry purposes as provided in Section 60: 1. Power and authority. The governing board of a county, city, town or school district may appropriate money or issue bonds either for purchase of lands for the purposes herein provided, to establish forest plantations or for the care and management of forests. Such boards may undertake such work at regular or special meetings by majority vote of such board after two weeks’ public notice setting forth the fact that such plan is contemplated and that moneys are to be appropriated for such purpose. 2. Assistance and trees. The conservation commission may assist and advise such board in its reforesting work, and the com- mission may furnish trees for reforesting such publicly owned lands without charge provided they are planted in accordance with the instructions of the commission. 3. Use. Such governing board shall have full power and authority to acquire, maintain, manage and operate such forests for the benefit of the inhabitants of its district. 4. Revenue. ‘The net income from such lands shall be paid into the general fund of such municipal division and shall be used only upon order of its governing board. Over and above the foregoing propositions the Com- mission by Section 59 has, with the approval of the * governor, power and authority to appropriate real prop- erty as follows: 1. Purposes: (a) The commission may enter upon and take possession of any lands or waters or both, or of any forests and rights in timber upon such lands, or upon any part, or portion thereof, within the Adirondack or Catskill parks or adjacent thereto, the appropriation of which, in the judgment of said commission, shall be necessary for public park purposes, or for 46 Game Law GuiIpeE the protection and conservation of the lands, forests and waters within the state, and See section 50, subdivision 6. (b) May enter upon and take possession of any lands or waters or both, within the ‘state that may be necessary, in the judgment of said commission, for the purpose of artificial propagation of food and game fish for restocking the public waters of the state. See chapter IV on general powers as to fish and game. 2. Description of land. An accurate description of such prop- erty so entered upon and appropriated shall be made by the commission, who shall certify under its seal that the deseription is correct, and shall endorse thereon a notice that the property described therein is appropriated by the people of the state of New York for the purpose described in this section. The original of such description and certificate shall be filed in the office of the secretary of state. The conservation commission may make such additional copies of this certificate and description as may be necessary and certify the same. 3. Service of notice. The said commission shall thereupon cause a duplicate of said description and certificate, with notice of the date of filing thereof in the office of said secretary of state, to be served on the owner or owners of the lands, forests and rights in timber upon such lands and waters so appropriated; and from the time of such service the entry upon and appropriation by the people of the state of the property described in such notice shall be deemed complete, and thereupon such property shall become, and be, the property of the people of the state. Such notice shall be conclusive evidence of- any entry and appropriation by the state; but the service of such notice shall raise no presumption that the lands, forests, and rights in timber upon such lands deseribed therein are private property. 4. Manner of service. Service of the notice and papers pro- vided for under subdivision three must be personal if the person to be served can be found within the state. If the person to be served falls within any of the classes mentioned in section four hundred and thirty-eight of the code of civil procedure, the pro- visions of article second, title one of chapter five of the code of civil procedure relating to the service of a summons in an action in the supreme court, shall apply, so far as practicable, to the service of such notice and papers. 5. Description and certificates to be recorded. Said commis- sion shall thereupon cause a duplicate of such description, cer- LAanps AND FORESTS 47 tificate, and notice of filing, with an affidavit of due service thereof on such owner or owners, to be recorded in the books used for recording deeds in the office of the clerk of any county in this state in which any of the property described therein may be situ- ated; and the record of such notice, and of such proof of service, shall be presumptive evidence of due service thereof. 6. Adjustment of claims by agreement. Claims for the value of the property appropriated, and for legal damages caused by any such appropriation, may be adjusted by the commission, if the amount thereof can be agreed upon with the owner or owners thereof. Upon making any such adjustment and agreement the commission shall deliver to the comptroller a certificate stating the amount due to said owner on account of such appropriation of his land or other property, and the amount so fixed shall be paid by the treasurer upon the warrant of the comptroller. 7. Court of claims, jurisdiction of. If the commission and the owner or owners of the property so appropriated fail to agree upon the value of such property, or upon the amount of legal dam- ages resulting from such appropriation, within one year after the service of the notice and papers provided for in section sixty-eight of this chapter, such owner may, within two years after the service of such notice and papers, present to the court of claims a claim for the value of such land and legal damages; and said court shall have jurisdiction to hear and determine such claim and render judgment thereon. Upon filing in the office of said com- mission and in the office of the comptroller, a certified copy of the judgment of the court of claims, and a certificate of the attorney- general that no appeal from such judgment has been or will be taken by the state, or if an appeal has been taken, a certified copy of the final judgment of the appellate court affirming in whole or in part the judgment of the court of claims, the comptroller shall issue his warrant for the payment of the amount due the claimant by such judgment, with interest from the date of the judgment until the thirtieth day after the entry of such final judgment, and such amount shall be paid by the treasurer. 8. Court of claims to examine property. The court of claims, if requested by the claimant or the attorney-general, shall examine the real property affected by the claim of damages for the appro- priation thereof and take testimony in relation thereto in the county where such property or a part thereto is situated. 9. Owner may reserve timber on land appropriated. 1. The owner of land taken under this article may, with the written con- sent of the conservation commission, and within the limitations hereinafter prescribed, reserve trees thereon not less than eight 48 Game Law GuIDE inches in diameter, breast high, at the time of the service of the notice provided the removal of such trees will not destroy the forest cover. Such reservation must be exercised within six months after the service upon the owner of a notice of the appropriation, by the owner serving upon such commission a written notice that he elects to reserve such trees. If such notice be not served by the owner within the time above specified he shall be deemed to have waived his right to such reservation, and such trees shall there- upon become and be the property of the state. The presentation of a claim to the court of claims before the service of a notice of reservation shall be deemed a waiver of the right to such reservation. 10. Reservation on lands purchased. Wand acquired by pur- chase may be taken subject to the reservation of the trees thereon down to eight inches in diameter, breast high, at the time of such purchase, with the right to the owner to remove the same within the time specified in the next section, or upon agreement between the commission and the owner, subject to any lease, mortgage, or other ineumbrance, not extending fifteen years beyond the date of acquisition. The amount or value of any such lien, incumbrance or timber reservation, upon land so purchased, shall be deducted from the purchase price thereof. 11. Right to reserve timber restricted. The right to reserve timber, and the manner of exercising and consummating such right, are subject to the following restrictions, limitations and ‘conditions: (a) Timber within twenty rods of a lake, pond or river cannot be reserved. Under the supervision of the commission roads may be eut or built across or through such excepted space of twenty rods, for the purpose of removing trees from adjoining lands, and the person reserving such timber on the adjoining lands, his legal representatives or assigns, shall have the right, which night shall be deemed a part of such reservation, to construct such roads, through and across such excepted strip, as may be necessary to remove the timber so reserved; but in constructing such roads only such trees shall be cut as are within the limits of such roads. The commission may prescribe the manner of all such roads and may permit the use of any dead, down or other necessary timber for the construction only of roads, skidways, lumber camps, or for fuel, which right shall also be deemed a part of the soft wood timber reservation by the owner. No trees or timber shall be cut for the construction of roads, camps or other purposes, except such as are reserved by the owner, or for which permission to eut has been given as provided in this section. LANDS AND FoRESTS 49 (b) All timber reserved by the owner must be removed from the land within fifteen years after the service of notice of reser- vation or the making of the contract of purchase, subject to rea- sonable regulations to be prescribed by the commission; such land shall not be eut over more than once, and said commission may prescribe reasonable regulations for the purpose of enforcing this limitation. All timber reserved, and not removed from the land within such time, shall thereupon become and be the property of the state and all title or claim thereto by the original owner, his legal representatives or assigns, shall thereupon be deemed abandoned. 12. Compensation for reserved timber lands. A person who reserves timber as provided in this article shall not be entitled to any compensation for the value of the land purchased or taken and appropriated by the state, or for any damages caused thereby until (a) The timber so reserved is all removed and the object of the reservation fully consummated; or (b) The time limited for the removal of such timber has fully lapsed or the right to remove any more timber is waived by a written instrument filed with said commission; and - (c) Said commission is satisfied that no trespass on state lands has been committed by such owner, or his assigns, or legal repre- sentatives; that no timber or other property of the state, not so reserved, has been taken, removed, destroyed, or injured by him or them, and that a cause of action in behalf of the state does not exist against him or them for any alleged trespass or other injury to the property or interests of the state; and (d) That the owner, his assignee or other legal representatives, has fully complied with all rules, regulations and requirements of said commission concerning the use of streams, or other prop- erty of the state, for the purpose of removing such timber. Pro- vided, however, that said commission may at any time by its cer- tificate filed with the comptroller direct the payment to the owner of such land, his legal representatives or assigns, of the compen- sation therefor, or a part thereof at such time and upon such con- ditions as may be set forth in the certificate. 13. Timber reserved; value of land; how determined. If timber be reserved, its value at the time of making an agreement between the owner and said commission for the value of the land so appropriated, and the legal damages caused thereby, or at the time of the presentation to the court of claims of a claim for such value and damages, shall be taken into consideration in 4 50 Game Law GuIDE determining the compensation to be awarded to the owner on account of such appropriation either by such agreement or by the judgment rendered upon such a claim. 14. Adjustment of claims for trespass or other injuries. In cases of trespasses or other injuries to lands or property purchased or acquired by the state the commission may settle and adjust any claims for damages due to the state on account of any such tres- passes or other injuries to property or interests of the state, or penalties incurred by reason of such trespasses or otherwise, and the amount of such damages or penalties so adjusted shall be deducted from the original compensation agreed to be paid for the land, or for damages, or from a judgment rendered by the court of claims on account of the appropriation of such land. A judg- ment recovered by the state for such a trespass or for a penalty shall otherwise be deducted from the amount of such compensa- tion or judgment. 15. Judgments. When a judgment for damages is rendered for the appropriation of any lands or waters for the purposes specified in this article, and it appears that there is any lien or incumbrance upon the property so appropriated, the amount of such lien shall be stated in the judgment, and the comptroller may deposit the amount awarded to the claimant in any bank in which moneys belonging to the state may be deposited, to the account of such judgment, to be paid and distributed to the persons entitled to the same as directed by the judgment. 16. Warrants. A warrant shall not be drawn by the comp- troller for the amount of compensation agreed upon between the owner and said commission, nor for the amount of a judgment rendered by the court of claims, until a further certificate by the commission is filed with the comptroller to the effect that the owner has not reserved any timber and that he, his assignee or other representative, has complied with the provisions of this article, or has otherwise become entitled to receive the amount of the purchase price, award or judgment. 17. Interest. If timber is reserved upon land purchased or appropriated as provided by this article, interest is not payable upon the purchase price, or the compensation which may be awarded for the value of such land, or for damages caused by such appropriation, except as provided in subdivision seven of this section. 18. Costs and disbursements; when offer made. If an offer is made by said commission for the value of land appropriated or for damages caused by such appropriation, and such offer is not LANDS AND ForEsts L accepted, and the recovery in the court of claims exceeds the offer, the claimant is entitled to costs and disbursements as in an action in the supreme court, which shall be allowed and taxed by the court of claims and included in its judgment. If in such a ease the recovery in the court of claims does not exceed the offer, costs and disbursements to be taxed shall be awarded in favor of the state against the claimant and deducted from the amount awarded to him; or if no amount is awarded, judgment shall be entered in favor of the state against the claimant for such costs and disburse- ments. If any offer is not accepted, it cannot be given in evidence on the trial. 19. Removal of timber; use of streams. Persons entitled to cut and remove timber under this article may use streams or other waters of the state within the forest preserve counties for the purpose of removing such timber, under such regulations and con- ditions as may be preseribed or imposed by the commission. The persons using such waters shall be liable for all damages suffered by the state or any person caused by such use. In order to protect the lands described in this article the following provisions of Section 61 apply: 1. Trees or timber. No person shall cut, remove or destroy any trees or timber or other property thereon or enter upon such lands with intent so to do. 2. Structures. No buildings shall be erected, used or maintained upon the forest preserve except under permits from the commission. 3. Agricultural use. No person shall use any portion of the forest preserve for agricultural purposes, nor shall cattle or domestic animals of any kind be permitted to graze thereon. 4. Deposit rubbish. No person shall deposit or leave thereon any rubbish or other waste material. 5. Transfer or lease. No person shall lease, transfer or accept any lease or transfer of any lands in the forest preserve or of any improvements thereon. 6. Dispose of improvements. The commission may dispose of any improvements upon the forest preserve under such conditions as it deems tobe to the public interest. 7. Reforested lands. No person shall injure or cause to be injured any trees planted for the purpose of reforestation. 8. Removal of materials generally. No person shall remove any material belonging to the state from the state lands without the authorization of the commission. 52 GAME Law GuIDE The terms of the above section apply more particularly to the present and future forest preserve; but they also cover all lands within the embrace of the article and especially all trees planted in accordance with it. In the case of People v. Gaylord, 139° App. Div. 814 (1910) it was held: Trees standing or growing upon the forest preserve or State land are property within the meaning of the - statute covering larceny although the constitution pro- vides that such lands shall be forever occupied as wild lands and that timber shall not be sold or removed therefrom. Such timber cannot be deemed property without a value because of such constitutional provision. It is therefore larceny for one to cut and remove from the preserve or State lands the timber. growing thereon. Compare People v. Klock, 55 M. 46. The manufacturers of timber and the consumers of round wood or timber or wood for commercial purposes are required to report to the Commission annually, when called upon to do so, on blanks furnished, the amount of such materials used or made from trees grown in the state during the year. See section 58. In enforcement of the provisions of Article IV, fines and penalties are fixed by Section 63: 1. Any person who violates any provision of this article or who fails to perform any duty imposed by any provision thereof shall be guilty of a misdemeanor, and shall be liable or punishable by a fine of not less than ten nor more than one hundred dollars, or by imprisonment of not less than ten nor more than one hundred days, or by both such fine and imprisonment. 2. The violation of any of the following provisions shall sub- ject the person guilty thereof to the following penalties in addition to those provided in subdivision one, of this section; section fifty- four, subdivision two, penalty of two dollars per tree; for failure LANnpbs AND ForEstTs 5S to comply with the provisions of subdivision six of section fifty- four, penalty of twenty-five dollars per day; for violation of the several subdivisions of section fifty-five as follows: subdivisions one and two, ten dollars per mile per day; subdivision three, one hundred dollars per day per locomotive; subdivision five, penalty of twenty-five dollars per day per place and penalty of one hun- dred dollars for failure to show record of inspector; for violation of subdivision siz, one hundred dollars for each offense. 3. Any person who molests, injures, removes, destroys or with- holds supplies or other material maintained for forest fire protec- tion purposes shall be guilty of a misdemeanor. 4. Any person who sets fire wilfully in violation of section fifty-four, subdivision three shall be guilty of a felony. 5. Any person who cuts or causes to be cut any tree or trees upon the forest preserve shall be liable to a penalty of ten dollars per tree or treble damages or both. 6. In default of the payment of any fine or penalty imposed under this section, the defendant may be committed to jail until such fine or penalty is paid, but the term of confinement shall not exceed one day for each dollar of fine imposed. The statute now clears away all such objections as were made in People v. L. I. R. R. Co., 208 N. Y. 541 and People v. N. Y. C. R. R. Co., 213 N. Y. 136 on the measure of damages and the maximum of penalties. See the dis- cussion of fines, penalties and procedure in Chapter XVET. It may be weil, however, at this juncture, to note that a criminal prosecution whether resulting in conviction or acquittal is not a bar to the subsequent civil action for the recovery of the penalty as distinguished from the fine. People v. Snyder, 90 A. D. 422. The repeal by Chapter 451 of the Laws of 1916, or any law or part thereof heretofore in force, does not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time when such repeal took effect, but the same may be enjoyed, asserted, 54 Game Law GuIDE enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not taken place. See section 64. See section 94 of the General Construction Law. Chapter 451 of the Laws of 1916 took effect May 9, 1916. Section 33 provides: Rules and regulations established by the commission for the enforcement of the provisions of article four of this chapter shall be entered by the commission in its book of minutes and at least three copies thereof posted in public places in the towns in which such rules and regulations apply, at least thirty days before the same shall take effect. Any person who violates any provision of any rule or regulation so established by the commission, pursuant to the provisions of this section shall be guilty of a misdemeanor and shall, upon con- viction, be subject to a fine of not to exceed one hundred dollars or imprisonment for not more than thirty days or by both such fine and imprisonment. GENERAL REGULATIONS CovERING THE Usr oF State Lanps The following rules and regulations are of general application to the State land under the jurisdiction of the Conservation Commission, and are to govern all of those who make use of this land. Regulations of special or local application may be adopted from time to time: 1. No fires except for cooking, warmth or smudge purposes are per- mitted. No fire shall be lighted until all inflammable material is removed to prevent its spread. 2. Lighted matches, cigars, or cigarettes or burning tobacco must not be deposited or left where they may cause fires. 3. No official sign posted or structure maintained under permit shall be defaced. Peeling of bark or injuring trees is prohibited. Dead or down wood may be used for fuel by temporary campers. 4. Camps and adjacent grounds must be maintained in a clean and sanitary condition. Garbage and refuse must be either buried, removed or burned. Waste materials must not be thrown into the waters, or waters polluted. 5. Each camper on islands of Lake George, St. Lawrence Reservation or other much frequented places, must provide a plentiful supply of chloride of lime and dirt, for disinfecting and covering any latrine used by him. All latrines must be cleaned and the contents burned or buried LANnps AND F'orEsts 5D at frequent intervals, in such manner as to prevent offensive odors, and above all to avoid pollution of the water supply. 6. Canvas tents without platforms for use during short periods may be placed without a permit, but not in a trail or within 150 feet of any spring used for water supply. 7. No tents (except those described under rule 6) or wooden struc- tures shall be erected, or maintained, except under written permission. Tar paper shall not be used, except for roofs of open camps erected under a permit. Structures erected under (a), (b) or (¢) become the property of the State. The structures for which permits may be granted are as follows: (a) Open camps for transient use not to be occupied by the same person or persons more than three nights in succession or more than ten nights in any year. (b) Open camps for use of campers, hunters or fishermen may be occupied for reasonable periods. (c) Permanent tent platforms for summer camping purposes. Per- mit granted to use while occupied in good faith. Platform to be left for future use. When not in use permits may be given others to use. (d) Temporary tent platforms for summer camping. The platform to be erected and removed simultaneously with the tent. (e) Portable canvas houses for summer camping. 8. No one may claim any particular site from year to year or the exclusive use of the same. 9. The use of the forest preserve or the improvements thereon for private revenue or commercial purposes is prohibited. 10. Any unoccupied tent or structure may be removed by the Commission. 11. At St. Lawrence Reservation, where fireplaces are provided, fires must not be kindled elsewhere, nor shall tents on these islands be pitched less than 200 feet from any public fireplace or boat landing. 12. No boat is entitled to the exclusive use of any dock built by the State. There must be free access for boats at all times. 13. Dancing in any building erected by the State is prohibited. 14. All campers will be held responsible for compliance with these rules, and any person responsible for injury of State property will be held liable for damages and penalties. CHAPTER III OWNERSHIP OF GAME The principle of ownership as applied to animals con- ceded to be wild, upon which Article V is built, presents three distinct features: First— Federal control. Second — State control. Third — Private property rights. FreperRAL ContTROL By virtue of its claimed sovereign rights over and interest in certain classes of wild animals particularly migratory birds, the federal government has by statute declared the fact and the extent of its jurisdiction. The Lacey Act, Chapter 553 of the Laws of 1900 (31 Stat. 187), enacted to enlarge the powers of the depart- ment of agriculture, prohibit transportation by inter- state commerce of game killed in violation of local laws and for other purposes, declares: That the duties and powers of the department of agriculture are hereby enlarged so as to inelude the preservation, distribution, intro- duction, and restoration of game birds and other wild birds. The secretary of agriculture is hereby authorized to adopt such measures as may be necessary to carry out the purposes of this act and to purchase such game birds and other wild birds as may be required therefor, subject, however, to the laws of the various states and territories. The object and purpose of this act is to aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become searece or extinct, and also to regulate the intro- duction of American or foreign birds or animals in localities where they have not heretofore existed. [56] OwNERSHIP OF GAME 57 The secretary of agriculture shall from time to time collect and publish useful information as to the propagation, uses, and preserva- tion of such birds. And the secretary of agriculture shall make and publish all needful rules and regulations for carrying out the purposes of this act, and shall expend for said purposes such sums as congress may appropriate therefor. That all dead bodies or parts thereof, of any foreign game animals, or game or song birds, the importation of which is prohibited or the dead bodies, or parts thereof, of any wild game animals, or game or song birds 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 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 and birds had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. This act shall not prevent the importation, transportation, or sale of birds or bird plumage manufactured from the feathers of barnyard fowl. Compare sections 178 and 179 of the Conservation Law. Chapter 231 of the U. S. Penal Laws (35 Stat. 1137), sections 241, 242, 243 and 244 further provides: § 241. The importation into the United States, or any territory or district thereof, of the mongoose, the so-called “ flying foxes” or fruit bats, the English sparrow, the starling, and such other birds and animals as the secretary of agriculture may from time to time declare to be injurious to the interests of agriculture or horticulture, is hereby pro- hibited; and all such birds and animals shall, upon arrival at any port of the United States, be destroyed or returned at the expense of the owner. No person shall import into the United States or into any territory or district thereof, any foreign wild animals or bird, except under special permit from the secretary of agriculture: Provided, That noth- ing in this section shall restrict the importation of natural history specimens for museums or scientific collections, or of certain cage birds, such as domesticated canaries, parrots or such other birds as the secretary of agriculture may designate. The secretary of the treasury is hereby authorized to make regula- tions for carrying into effect the provisions of this section. § 242. It shall be unlawful for any person to deliver to any common carrier for transportation, or for any common earrier to transport 58 Game Law GUIDE from any state, territory, or district of the United States, to any other, state, territory, or district thereof, any foreign animals or birds, the importation of which is prohibited, or the dead bodies or parts thereof of any wild animals or birds, where such animals or birds have been killed or shipped in violation of the laws of the state, territory, or district in which the same were killed, or from which they were shipped: Provided, That nothing herein shall prevent the transportation of any dead birds or animals killed during the season when the same may be lawfully captured, and the export of which is not prohibited by law in the state, territory, or district in which the same are captured or killed: Provided further, That nothing herein shall prevent the importation, transportation, or sale of birds or bird plumage manufactured from the feathers of barnyard fowls. § 243. All packages containing the dead bodies, or the plumage, or parts thereof, of game animals, or game or other wild birds, when shipped in interstate or foreign commerce, shall be plainly and clearly marked, so that the name and address of the shipper, and the nature of the contents, may be readily ascertained on an inspection of the outside of such package. § 244. For each evasion or violation of any provision of the three sections last preceding, the shipper shall be fined not more than two hundred dollars; the consignee knowingly receiving such articles so shipped and transported in violation of said sections shall be fined not more than two hundred dollars; and the carrier knowingly carrying or transporting the same in violation of said sections shall be fined not more than two hundred dollars. The above sections 241, 242, 243, 244 take the place of sections 2, 3 and 4 of the Lacey Act. ‘The plumage provision of the tariff act of 1913 (38 Stat. 148 and 155), as to rates, also provides: Feathers and downs, on the skin or otherwise, crude or not dressed, colored or otherwise advanced or manufactured in any manner, not especially provided for in this section, 20 per centum ad valorem; when dressed, colored, or otherwise advanced or manufactured in any manner, and not suitable for use as millinery ornaments, artificial and ornamental fruits, grains, leaves, flowers, and stems or parts thereof, of whatever material composed, not specially provided for in this section, 60 per centum ad valorem; boas, boutonnieres, wreaths, and all articles not specially provided for in this section, composed wholly or in chief value of any of the feathers, flowers, leaves, or other material herem men- tioned, 60 per centum ad valorem: Provided, That the importation of aigrettes, egret plumes or so-called osprey plumes, and the feathers, OwNERSHIP OF GAME 59 quills, heads, wings, tails, skins, or parts of skins, of wild birds, either raw or manufactured, and not for scientific or educational purposes, is hereby prohibited; but this provision shall not apply to the feathers or plumes of ostriches, or to the feathers or plumes of domestic fowls of any kind. Venison, and other game, 144 cents per pound; game birds, dressed, 30 per centum ad valorem. Free List Eggs of poultry, birds, fish, and insects (except fish roe preserved for good purposes): Provided, however, That the importation of eggs of game birds or eggs not used for food, except specimens for scientific col- lections, is prohibited: Provided further, That the importation of eggs of game birds for purposes of propagation is hereby authorized, under rules and regulations to be prescribed by the Secretary of the Treasury. Birds and land and water fowls not specially provided for in this section. Compare section 180 of the Conservation Law. The constitutionality of the Lacey Act has been unqualifiedly upheld in the cases of Rupert against United States, 181 Fed. 87, and Silz against Hesterberg, 211 U. S. 31, as a proper exercise of the federal police power and a valid regulation of interstate and interna- tional commerce. The Weeks-McLean Law, socalled, making appropria- tions for the Department of Agriculture, approved March 4, 1913 (37 Stat. 847), dealing among other things with migratory birds, both game and insectivorous, pro- vides as follows: All wild geese, wild swans, brant, wild ducks, snipe, plover, wood- cock, rail, wild pigeons, and all other migratory game and insectivorous birds which in their northern and southern migrations pass through or do not remain permanently the entire year within the borders of any state or territory, shall hereafter be deemed to be within the custody and protection of the government of the United States, and shall not be destroyed or taken contrary to regulations hereinafter provided for. The Department of Agriculture is hereby authorized and directed to adopt suitable regulations to give effect to the previous paragraph by prescribing and fixing closed seasons, having due regard to the zones of temperature, breeding habits, and times and line of migratory flight, thereby enabling the department to select and designate suitable districts 60 Game Law GuIDE for different portions of the country, and it shall be unlawful to shoot or by any device kill or seize and capture, migratory birds within the protection of this law during said closed seasons, and any person who shall violate any of the provisions or regulations of this law for the protection of migratory birds shall be guilty of a misdemeanor and shall be fined not more than $100 or imprisoned. not more than ninety days, or both, in the discretion of the court. The Department of Agriculture, after the preparation of said regula- tions, shall cause the same to be made public, and shall allow a period of three months in which said regulations may be examined and con- sidered before final adoption, permitting, when deemed proper, public hearings thereon, and after final adoption shall cause the same to be engrossed and submitted to the President of the United States for approval: Provided, however, That nothing herein contained shall be deemed to affect or interfere with the local laws of the states and territories for the protection of nonmigratory game or other birds resi- dent and breeding within their borders, not to prevent the states and territories from enacting laws and regulations to promote and render efficient the regulations of the Department of Agriculture provided under this statute. The above classification of birds might be construed to exclude any water fowl which of recent years have because of the prohibition of spring shooting been more and more inclined to breed and winter here. The purpose of the act seems to be to allow the states to give greater, but not less protection. Pursuant to the provisions of this act the following regulations have been adopted and are effective from August 21, 1916: REGULATION 1.— DEFINITIONS For the purposes of these regulations the following shall be con- sidered migratory game birds: (a) Anatidae or waterfowl, including brant, wild ducks, geese, and swans. Compare section 210 of the Conservation Law. (b) Gruidae or cranes, including little brown, sandhill, and whoop- ing eranes. Compare section 219 of the Conservation Law. OwNERSHIP OF GAME 6L (ec) Rallidae or rails, including coots, gallinules, and sora and other rails. Compare section 210 of the Conservation Law. (d) Limicolae or shore birds, including avocets, curlew, dowitchers, godwits, knots, oyster catchers, phalaropes, plover, sandpipers, snipe, stilts, surf birds, turnstones, willet, woodcock, and yellowlegs. Compare section 210 of the Conservation Law. (e) Columbidae or pigeons, including doves and wild pigeons. Compare section 219 of the Conservation Law. For the purposes of these regulations the following shall be considered migratory insectivorous birds: (f) Bobolinks, catbirds, chickadees, euckoos, flickers, flyeatchers, gros- beaks, hummingbirds, kinglets, martins, meadowlarks, nighthawks or bull bats, nuthatches, orioles, robins, shrikes, swallows, swifts, tanagers, titmice, thrushes, vireos, warblers, waxwings, whippoorwills, wood- peckers, and wrens and all other perching birds which feed entirely or chiefly on insects. Compare section 219 of the Conservation Law. REGULATION 2.— CLOSED SEASON at NIGHT A daily closed season on all migratory game and insectivorous birds shall extend from sunset to sunrise. Compare section 177-1 of the Conservation Law. REGULATION 3.— CLOSED SEASON ON INSECTIVOROUS BIRDS A closed season on migratory insectivorous birds shall continue throughout each year, except that the closed season on reedbirds or ricebirds in New Jersey, Pennsylvania, Delaware, Maryland, the Dis- trict of Columbia, Virginia, North Carolina, South Carolina and Georgia shall commence November 1 and end August 31, next following, both dates inclusive: Provided, That nothing in this or any other of these regulations shall be construed to prevent the issue of permits for collect- ing birds for scientific purposes in accordance with the laws and regula- tions in force in the respective states and territories and the District of Columbia. REGULATION 4.— CLOSED SEASONS ON CERTAIN GAME BIRDS A closed season shall continue until September 1, 1918, on the follow- ing migratory game birds: Band-tailed pigeons, little brown, sandhill, and whooping cranes, wood ducks, swans, curlew, willet, and all shore 62 Game Law GuIDE birds except the black-breasted and golden plover, Wilson snipe or jack- snipe, woodcock, and the greater and lesser yellowlegs. Compare sections 211 and 216 of the Conservation Law. A closed season shall also continue until September 1, 1918, on rails in California and Vermont and until October 1, 1918 on woodecock in Illinois, Kentucky and Missouri and until September 1, 1918 on black- breasted and golden plover and greater and lesser yellowlegs in Cali- fornia and Utah. REGULATION 5.— ZONES The following zones for the protection of migratory game and insec- tivorous birds are hereby established. Zone No. 1, the breeding zone comprising the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Kentucky, West Virginia, Michigan, Wisconsin, Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Kansas, Missouri, Colorado, Wyoming, Mon- tana, Idaho, Utah, Nevada, Oregon, and Washington — 31 states. Zone No. 2, the wintering zone comprising the States of Delaware, Maryland, District of Columbia, Virginia, North Carolina, South Caro- lina, Georgia, Florida, Alabama, Mississippi, Tennessee, Arkansas, Louisiana, Texas, Oklahoma, New Mexico, Arizona, and California — 17 states and the District of Columbia. REGULATION 6.— CONSTRUCTION For the purposes of regulations 7 and 8 each period of time therein prescribed as a closed season shall be construed to include the first and last day thereof. Compare section 380, subd. 4, of the Conservation Law. REGULATION 7.— CLOSED SEASONS IN ZonE No. 1 Waterfowl, Coots and Gallinules—— The closed seasons on waterfowl, coots and gallinules in Zone one shall be as follows: In Maine, New Hampshire, Vermont, Massachusetts, New York (except Long Island), Ohio, Michigan, Indiana, Kentucky, West Virginia, Illinois, Iowa, Kansas, Nebraska, and Missouri the closed season shall be between January 1, and September 15 next following; Compare sections 211, 212 and 213 of the Conservation Law. In Wisconsin, Minnesota, North Dakota, South Dakota, Montana, Idaho, Wyoming, and Colorado the closed season shall be between December 21 and September 6 next following; and OWNERSHIP OF GAME 63 In Rhode Island, Connecticut, Long Island, New Jersey, Pennsyl- vania, Washington, Oregon, Utah, and Nevada the closed season shall be between January 16 and September 30 next following. Rails other than Coots and Gallinules—— The closed season on sora and other rails, excluding coots and gallinules, in Zone one shall be between December 1 and August 31 next following, except as follows: Exception: In Vermont the closed season shall continue until September 1 1918. Compare section 213 of the Conservation Law. Black-breasted and golden plover and greater and lesser yellowlegs.— The closed seasons on black-breasted and golden plover and greater and lesser yellowlegs in Zone one shall be as follows: In Maine, New Hampshire, Massachusetts, Rhode Island, Connecti. eut, New York, and New Jersey the closed season shall be between December 1 and August 15 next following: Compare sections 216 and 217 of the Conservation Law. In Vermont, Pennsylvania, Ohio, West Virginia, Kentucky, Indiana, Michigan, Illinois, Iowa, Missouri, Kansas, Nebraska, Colorado, and Nevada the closed season shall be between December 16 and August 31 next following; In Wisconsin, Minnesota, North Dakota, South Dakota, Montana, Idaho, and Wyoming the closed season shall be between December 21 and September 6 next following; In Oregon and Washington the closed season shall be between Decem- ber 16 and September 30 next following; and In Utah the closed season shall continue until September 1, 1918. Jacksnipe.— The closed seasons on jacksnipe or Wilson snipe in Zone one shall be as follows: In Maine, New Hampshire, Vermont, Massachusetts, New York, (except Long Island), Ohio, West Virginia, Kentucky, Indiana, Michi- gan, Illinois, Iowa, Missouri, Kansas, and Nebraska the closed season shall be between January 1 and September 15 next following; Compare sections 216 and 217 of the Conservation Law. In Rhode Island, Connecticut, Long Island, New Jersey, Pennsyl- vania, Washington, Oregon, Nevada, and Utah the closed season shall be between January 16 and September 30 next following; and In Wisconsin, Minnesota, North Dakota, South Dakota, Montana, Idaho, Wyoming, and Colorado the closed season shall be between December 21 and September 6 next following. Woodcock.— The closed season on woodeock in Zone one shall be 64 GamE Law GuIDE between December 1 and September 30 next following, except as follows: Exceptions: In Illinois, Kentucky, and Missouri the closed season shall continue until October 1, 1918. Compare sections 216 and 217 of the Conservation Law. REGULATION 8.— CLosED SEASON IN ZONE No. 2 Waterfowl, Coots and Gallinules—— The closed seasons on waterfowl, coots and gallinules in Zone two shall be as follows: In Delaware, Maryland, District of Columbia, Virginia, North Caro- lina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, Arkansas, and Louisiana the closed season shall be between February 1 and October 31 next following; and In Oklahoma, Texas, New Mexico, Arizona, and California the closed season shall be between February 1 and October 15 next following. Rails, other than Coots and Gallinules.— The closed season on sora and other rails, excluding coots and gallinules, in Zone two shall be between December 1 and August 31 next following, except as follows: Exceptions: In Louisiana the closed season shall be between February 1 and October 31; and In California the closed season shall continue until Septem- ber 1, 1918. Black-breasted and golden plover and greater and lesser yellowlegs.— The closed seasons on black-breasted and golden plover and greater and lesser yellowlegs in Zone two shall be as follows: In Delaware, Maryland, District of Columbia, and Virginia the closed season shall be between December 1 and August 15 next following; In South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas the closed season shall be between February 1 and October 31 next following; In North Carolina, Tennessee, Arkansas, Oklahoma, New Mexico, and Arizona the closed season shall be between December 16 and August 31 next following; and In California the closed season shall continue until September 1, 1918. Jacksnipe-—— The closed seasons on jacksnipe or Wilson snipe in Zone two shall be as follows: In Delaware, Maryland, District of Columbia, Virginia, North Caro- lina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, Arkansas, and Louisiana the closed season shall be between February 1 and October 31 next following; and In Oklahoma, Texas, New Mexico, Arizona, and California the closed season shall be between February 1 and October 15 next following. Woodcock.— The closed season on woodeock in Zone two shall be between January 1 and October 31 next following. OwNERSHIP oF GAME 65 REGULATION 9.— HEARINGS Persons recommending changes in the regulations or desiring to sub- mit evidence in person or by attorney as to the necessity for such changes should make application to the Secretary of Agriculture. Hearings will be arranged and due notice thereof given by publication or otherwise as may be deemed appropriate. Persons recommending changes should be prepared to show the necessity for such action and to submit evidence other than that based on reasons of personal con- venience or a desire to kill game during a longer open season. REPEAL Except in respect to offenses theretofore committed, on and after the date of the approval by the President of the foregoing regulations such regulations shall supersede the regulations for the protection of migra- tory birds approved and proclaimed October first, one thousand nine hundred and thirteen (38 Stat., 1960), as amended by regulations for the protection of migratory birds approved and proclaimed August thirty-first, one thousand nine hundred and fourteen (38 Stat., 2024), as further amended by regulations for the protection of migratory birds approved and proclaimed October first, one thousand nine hun- dred and fourteen (38 Stat., 2032). While the Lacey Act has been uniformly sustained as constitutional, the Weeks-McLean Law and the Rreuna- tions adopted by the Department of Agriculture have not fared as well. There have been numerous prosecutions for violations of these regulations resulting in conviction and the imposition of the appropriate penalties. In 1914, in an unreported South Dakota case (United States v. Shaw), the migratory bird law was upheld, but in the case of United States against Shauver, 214 Federal Reporter 154 (1914), an Arkansas case, the law was declared unconstitutional. The defendant was indicted for a violation committed in the form of ‘‘spring shooting ’’ of water fowl. A demurrer was interposed and on the argument Judge Trieber rendered a decision of which the following is a synopsis: ‘*A federal court will declare an act of Congress uncon- stitutional only when the question is practically free 9) 66 GamMeE Law GuIDE from real doubt and the mere fact that the statute goes to the verge of the constitutional power is not enough, but it must appear clearly that it is beyond that power before a court will declare it void.’’ ‘“'The states retain the police power which they as sovereign nations possessed prior to the adoption of the national constitution so far as such powers pertain to the internal affairs of the states.’’ ‘‘ The United States possesses power analogous to the police power of the states which every sovereign nation possesses as to its own property and power to carry into effect powers conferred on it by the constitution.’’ ‘¢ The act of March 4, 1913, ch. 145, 37 Stat. 847, pro- tecting migratory birds and game cannot be sustained as an exercise of the implied powers of the national govern- ment though it is impossible for any state to enact laws for the protection of migratory wild game and only the national government can do it with any fair degree of success.”’ ‘¢ Migratory birds are not when on their usual migra- tion, the property of the U. S. within Const. Art. 4, Section 3, Sub. 2 empowering congress to adopt rules respecting the territory or other property of the United States, but they are the property of the states in their sovereign capacity as the representative and for the benefit of all the people in common and Act March 4, 1913, protecting migratory birds cannot be sustained as an exercise by congress of the right to adopt regulations for its property.”’ ‘The act is invalid because not authorized expressly or by necessary implication by the Constitution.”’ ‘¢ The act cannot be sustained as an exercise by Con- gress of the power to regulate interstate commerce.’’ Among the many authorities cited in the opinion writ- ten in the case are Rupert against United State and Silz against Hesterberg, the two cases in which the constitu- tionality of the Lacey Act has been upheld. OwNERSHIP OF GAME 67 The Attorney-General of the State of New York in 1913 along kindred lines and upon some of the same authorities rendered an opinion to the effect that the federal migratory bird law was unconstitutional. See Attorney-General Reports, 1913, vol. II, page 645. The Shauver case was removed to the Supreme Court of the United States on the government’s writ of error and was argued before such of the judges as were then sitting on October 16, 1915.: On February 28, 1916, the case was, by order of the court, restored to the docket for re-argument and no decision has yet been reached. One of the interesting points pressed before the Supreme Court is that if Congress has the power and the right to distribute seeds and disseminate the means of exterminating insect pests, the protection of migratory birds is but a corollary of this authority. If the law and the regulations are invalidated the defects unless insurmountable will be met by amend- ments or original legislation. In the event that the objee- tions found, if any, are absolutely fatal, pending cases and those in which the time to appeal has not expired will be abandoned and all others will become closed incidents and the only recourse will be the amendment of the U. 8. Constitution unless the recent treaty entered into between Canada and the United States disposes of the constitutional question. Hopeful of the outcome on this same old issue of state rights, the devotees of the law—and in that class are included all real sportsmen — have been looking forward to the establishment and enforcement of a federal season limit on all migratory game birds and regardless of the the decision in the Shauver case, the successful negotia- tion of a treaty with the Canadian government for a thorough co-operation along these lines. This latter pro- ject has proved not over difficult for the statute of the province of Ontario has for some time provided that the 68 Game Law GuIDE Lieutenant-Governor in council might make regulations prohibiting the hunting, shooting or sale of any migra- tory game which he may deem to be at any time in danger of extinction, for the same period and in the same manner as the same is at any time forbidden in any two or more of the United States of America, one of such states being New York, Pennsylvania or Michigan. See part IJ, section 8, subdivision 6 of the Ontario Game and Fishery Laws. Such a treaty has but recently become an assured fact and will, it is claimed, largely dispose of all questions of state rights. It is worth noting at this point that the federal law provides for no civil penalty, the punishment for an offense regardless of its extent or enormity being a fine or imprisonment or both. It differs from the CON- SERVATION LAW also in that there is no distinction between a violation which involves one bird and one which involves a number of them and in that it does not cover attempts or lesser acts and does not restrict posses- sion or prescribe a limit. The federal law is enforced by indictment only and the limitation within which prosecution may be com- menced is three years from the time of the commission of the offense. See U. S. Statutes, title 13, chapter 19, section 1044. Compare chapter XVII on Procedure. . The federal regulations are at present enforced by federal wardens in the different states. State ContTROL In discussing this important and fascinating phase of the law, three distinct propositions must be borne in mind among which clear and clean cut differentiations should be made: OwNERSHIP oF GAME 69 First. The socalled state ownership of wild animals or the right, title and interest of the state in and to them as against all individuals, whether owners of land or otherwise — subject of course to federal jurisdiction over migratory birds. Second.— The rule of the chase involving property rights in and to wild animals as among or between indi- viduals when the rights and claims of the State are waived in favor of the lawful taker who does not invade the legal rights of others. Third.— The peculiar property rights in and to wild animals vested in the owner of the soil on which they are found, subject to State regulation. The second and third features of this question will be discussed in Chapter XVIII. With these three principles kept ever to the fore, it is believed that the apparent conflicts among such cases as People v. Doxtater, 75 Hun, 472; Rockefeller v. Lamora, 85 A. D. 254; Matter of Deposit, 131 A. D. 403; Pierson v. Post, 3 Caines, 175, and the English authority Blades v. Higgs, 11 H. L. Cases, 621, can be brought to recon- ciliation. It may be stated by way of preface that the original and ultimate absolute title to all property whether real or personal is in the sovereign state. 2 Blackstone, 409. New York State Constitution, article I, section 10. Johnson v. Spencer, 107 N. Y. 185. While in some particulars the principles of property as applicable to wild animals may properly be said to taste of those which govern real estate, yet in the main, the philosophy pertaining to property of a personal char- acter controls in so far as the peculiar nature of animals as property allows. Under the earlier conditions of mankind, the human family had in common a dominion over and consequently 70 Game Law GuIDE a quasi property in all the unreclaimed animals of the earth. 2 Blackstone, 403. Notwithstanding the fact that the right to take that species of property known as fish and game was a nat- ural right originally practically unrestricted by law, wild animals have always been in a sense deemed the property of the sovereign and from remote times the right and power of the State to regulate and control their capture has been recognized and variously asserted. 2 Blackstone, 403. Justinian Book 2. At one time in ancient Greece, Solon the law giver, observing that the Athenians devoted themselves to the chase, to the neglect and detriment of the arts, forbade the hunting and killing of game. Geer v. Connecticut, 161 U. S. 519. Under the Civil Law of Rome wild animals were con- sidered the property of the state and under the COM- MON LAW of England they were deemed the property of the Crown. By the early English common law whales and sturgeon were deemed ‘‘ royal fish’’ and if thrown on shore became instanter, crown possessions. 1 Blackstone, 290. Originally under the common law this socalled title to wild animals seems to have been regarded as vested in the sovereign as a personal prerogative and traces of this idea are still discoverable in the provisions of the stat- utes of the province of New Brunswick on fishery leases and those of Ontario on fishing mm navigable waters. However on the grant by King John in 1215 of MAGNA CARTA and the CHARTER OF THE FOR- OwNERSHIP oF GAME 7a EST in 1225 by Henry III, the rights of the sovereign in unreclaimed wild animals were limited and the rule of the ROMAN LAW restricting the sovereign power to a control and regulation of their taking became the COM- MON LAW of England. 2 Blackstone, 414. State v. Mallory, 67 L. R. A. 773. Geer v. Connecticut, 161 U. S. 519. The rule of the CIVIL LAW recognizing this qualified title of the sovereign in wild animals having been to all intents and purposes adopted by the English COMMON LAW, became the rule in the United States. At any rate, the civil law states followed the principle of the civil law and the common law states followed that of the common law. The uniform gist of all authorities appears to be that the general title to wild animals within its borders, as far as they are capable of ownership is in the state not as a technical proprietor, but in its collective sovereign capacity as the representative and for the benefit of all its citizens in common. For this reason it has been said that neither fish, birds or quadrupeds (ferae naturae) belong to the state in the sense that the state can without express provision of law sell them or pursue them into other states to capture and recover them. Rossmiller v State, 114 Wisconsin, 169. Roberts v. Fullerton, 117 Wisconsin, 222. Compare sections 154, 155, 156, 157, 158. Wild animals have also been entitled wards of which the State is guardian. They have been said to be a property in trust for the benefit of all the people. A cloud of cases might be cited on these propositions, but a few pivotal authorities in addition to those already quoted will suffice: Ex parte Maier, 37 Pacific Reports, 402. Phelps v. Racey, 60 N. Y. 10. U2 Game Law GuIDE Commonwealth v Papsone, 232 U.S. 138. Magner v. People, 97 Illinois, 320. Garcia v. Gunn, 119 California, 315. People v. Bootman, 180 N. Y. 7. State v. Nergaard, 124 Wisconsin 414. As the immense value of this wild wealth has become more and more appreciated from the standpoints of the maintained balances of nature, the beneficent work of insectivorous birds and the importance of the food and fur supply which it affords, the taking of such animals has come to be considered more as a privilege than an inherent right the world over and this favor rests with the government to extend, regulate and control. These animals become the subjects of private owner- ship only so far as the people elect to make them so and the Legislature usually preseribes the point or limit where public proprietorship ends and that of the indi- vidual commences. Kellogg v. King, 114 California, 378. It is without doubt due’ to the nice nature of this prop- erty and the absence of a technical possession of them while in a state of nature that the taking of game ani- mals in violation of the CONSERVATION LAW has not yet been technically declared to be what to all intents and purposes it is; to wit, a larceny. This right is not such a proprietary one as carries with it any lability against the State for depredations done by wild animals although the State could if it saw fit become responsible for all such damage and this answerability the states of Massachusetts, New Hamp- shire and Vermont have largely assumed as to the havoe done by deer. The protection and conservation of this vast property involves not only these peculiar rights of ownership, but also the exercise of that almost indefinably broad author- OwNERSHIP OF GAME t3 ity of the State exerted on behalf of all which best sub- serves the public welfare, known as the police power. ‘See decisions cited above. Sherlock vy. Alling, 93 U. S. 99. Cummings v. People, 211 Illinois, 393. McCready v. Virginia, 94 U. S. 395. Commonwealth v. MeComb, 227 Pa. 377. Lawton v. Steele, 152 U. S. 133. Plumley v. Massachusetts, 155 U. S. 461. People v. Hesterberg, 219 U. S. 31 (184 N. Y. 126). The extent and limitation of this police power have been the subject of endless discussions in all the courts. It is uniformly conceded to include everything essential to public safety, health, morals and general welfare and to justify the destruction or abatement by summary methods of whatever may be regarded as a public nuis- ance. Wherever the public interest demands its exer- cise, a large discretion is necessarily vested in the Legis- lature to determine not only what the interests of the public require, but what measures are necessary for their adequate protection. See Lawton v. Steele. The test appears to be whether an enactment has rela- tion to the public welfare and practically all reasonable legislation legitimately aimed at the protection of wild animal life has been upheld as proper exercise of this wide power. 3 The authority of the State not only extends to wild animals in a state of nature, but follows them and for certain purposes applies after their legal capture. Matter of Blardone, 115 S. W. 839. The scope of this right and power covers such matters as licenses, open and close season, taking and manner of taking, bag limits, possession during and after open season, transportation, exportation, importation, sale, 74 Game Law GuIDE confiscation of paraphernalia of all kinds and all of the many restrictive measures involved in the scheme of game conservation. The right of fishing and hunting in waters lying between two states is usually regulated and controlled by treaty, but in the absence of such treaty, the right to fish and hunt on such waters to the middle thereof, lies within the control of the respective states. 19 Cye. 1005. By virtue of the foregoing principles and in terms corresponding largely to the text of the statutes of all the states, the Conservation Law in Section 175 declares: The ownership of, and the title to all fish, birds, and quadrupeds in the state of New York, not held by private ownership, legally acquired, is hereby declared to be in the state. No fish, birds or quadrupeds shall be caught, taken or killed in any manner or at any time or had in possession except the person so catching, taking or killing or having the same in possession shall consent that the title to such fish, birds and quadrupeds shall be and remain in the state of New York for the purpose of regulating and controlling the use and disposition of the same after such catching, taking or killing, except that the title to such fish, birds or quadrupeds legally taken shall vest in the person so taking or possessing the same, subject to the restrictions and provisions of law. This declaration covers eggs of birds and spawn of fish. The language in which the declaration of these princi- ples is clothed varies more or less in the statutes of the various states, and it may be of interest to compare, for instance, Section | of the Oregon Game Code which reads as follows: “No person shall at any time or in any manner acquire any prop- erty in, or subject to his dominion or control, any of the wild game animals, fur-bearing animals, game birds, non-game birds or game fish, or any part thereof, of the state of Oregon, but they shall always and under all circumstances be and remain the property of the state, except that by lulling, catching or taking the same in the manner and for the OWNERSHIP OF GAME (@) purpose herein authorized and during the period not herein prohibited the same may be used by any person at the time, and in the manner, and for the purpose herein expressly provided. Any person hunting or trapping for or having in possession any game animals, fur-bearmg animals, game birds, non-game birds, or game fish at any time in any manner shall be deemed to consent that the title shall be and remain in the state for the purpose of regulating the use and disposition of the same, and such possession shall be deemed the consent of such per- son as aforesaid, whether said animals, birds or fish were taken within or without the state.” It is evident that these legislative declarations of ownership by the state of wild animals in their wild or natural state as well as after capture added nothing vital to the law as it existed before such provisions were enacted. As expressed in Section 382 they represent a restatement in statutory form of the existing law. Srcrion 175 of course excludes from its operation domestic animals (domitae naturae). It also eliminates from its application animals once wild which have become domesticated or tamed (man- suetae naturae). This opens up a wide field of discus- sion, for animals once wild may be said to be presumed to remain so until they have lost the spark of liberty and developed what is known as animus revertendi (the dis- position if freed to remain at or return home). If they have not acquired this characteristic and escape they would unless recovered and identified become and be claimed as wild animals. The statute does not apply to wild animals (ferae naturae) held in private ownership legally acqured. This classification includes such animals so held as of the time when the act took effect (1912) and those subse- quently so acquired. It would not exclude from the operation of the law wild animals taken in close season prior to 1912 nor to those taken during the open season and possessed after its close without a license. But it is doubtful if the commission would now enter into any 76 Game Law GuIDE dispute as to the ownership of such animals possessed prior to April 15, 1912. See chapter XVIIT; sections 190, 372, 200, 159, ete. If these enumerated excepted classes were not removed from the operation of the law the statute would doubt- less be held unconstitutional as being in impairment of contractual rights and as taking private property with- out due process of law and just compensation. United States Constitution, article I, section 10. United States Constitution, amendment V. New York State Constitution, article I, sections 6 and 7. See the discussion of these animals in chapter XVIII. See People v. Cohen, 91 A. D. 89. The terms of the Wisconsin statute include all wild animals or creatures endowed with sensation and the power of voluntary motion. Sxction 175, however, does not at present expressly apply to such wild animals as are neither fish, flesh nor fowl, although frogs are listed as fish (Section.257) and turtles as quadrupeds (Section 202). See Section 185 on hunting licenses where a gun is used. Bees for instance as to which there is abundance of interesting law, are not covered by the statute nor are insects and reptiles generally. See chapter XVIII. The declaration particularly emphasizes quadrupeds, birds and fish and to such wild animals no one can acquire title especially as against the State or any per- son acting in good faith on its behalf except in strict compliance with the law. See James v. Wood, 82 Me. 173. CHAPTER IV GENERAL POWERS AND DUTIES OF THE COMMISSION AS TO FISH AND GAME Pursuant to the principles discussed in Chapter III, the State through the Legislature has prescribed the powers and duties of the Commission on its behalf as to fish and game in Section 150: The commission shall have charge, control and management of the propagation and distribution of food and game fish, shell-fish, erustacea, and game. It shall have the conduct and control of all hatching and biological stations and game farms owned, operated or hereafter acquired by the state. The commission shall have charge of the enforcement of all laws for the protection of fish, shell-fish, crustacea, birds, and quadrupeds; lands under water which have been or shall be designated, surveyed and mapped out pur- suant to law, as oyster beds or shell-fish grounds, and power to grant leases of land under water for shell-fish culture according to law, to make rules regulating the inspection and examination of shell-fish, shell-fish grounds and the buildings used for storage; handling and shipments thereof; the floating of shell-fish; and the removal of shell-fish from beds which are in an unsanitary con- dition and their deposit upon unpolluted grounds; power to make rules increasing the size of mesh of nets, regulating the transporta- tion, importation, and exportation of game, fish, shell-fish and erustacea, and the taking of fish in any manner, other than angling, except as to migatory fish of the sea within the limits of the marine district; the granting of licenses where the same are prescribed by law, the fixing of fees therefor and the terms thereof. See Section 59, subdivision 1, b. See Remington v. State, 116 A. D. 522. See Publie Lands Law, article VI. The State fish hatcheries and the fish which they at present distribute are: ADIRONDACK, Saranac Inn Station — Brook Trout, Rainbow Trout, Lake Trout, Whitefish and Frostfish. [77] 78 Game Law GuIDE BATH, Bath— Brook Trout, Brown Trout, Rainbow Trout and Lake Trout. CALEDONIA, Caledonia—Brook Trout, Brown Trout, Rainbow Trout, Lake Trout, Lake Herring, Pikeperch and Maskalonge. CHAUTAUQUA, Bemis Point— Brook Trout, Lake Trout, Maskalonge, Lake Herring and Black Bass. COLD SPRING HARBOR, Cold Spring Harbor— Brook Trout, Brown Trout, Rainbow Trout, Pikeperch, Smelt, Tomeod, Flatfish, Sea Bass, Seup, Whitefish, Blackfish, Blue Crab and Lobster. DELAWARE, Margaretville— Brook Trout, Brown Trout and Rainbow Trout. FULTON CHAIN, Old Forge— Brook Trout, Lake Trout, Whitefish, Frostfish and Land Locked Salmon. LINLITHGO, Linlithgo — Brook Trout, Brown Trout, Rainbow Trout, Shad, Pikeperch, Lake Herring, River Herring, Black Bass and Yellow Perch. ONEIDA, Constantia — Pikeperch, Tullibee, White- fish, Lake Herring, Black Bass and Yellow Perch. ST. LAWRENCE, Ogdensburg— Black Bass and Pikeperch. WARRENSBURG, Warrensburg — Brook Trout. By Chapter 632 of the Laws of 1916, the establishment of a hatchery at Dunkirk, Chautauqua county, is author- ized for the purpose of propagating for the waters of Lake Erie and other waters of the State, white fish, lake trout, herring, blue pike and other fish. The State game farms, at present devoted to the propa- gation of pheasants only, are: SHERBURNE — Chenango County. MIDDLE ISLAND — Suffolk County. BROWNVILLE— Jefferson County. Where a license is required by any section of the law the terms of its grant may be regulated by the Commis- sion, and it seems that the Commission may by rule GENERAL Powers AND Dutirs or Commission 79 require a license for any form of fishing except angling —hbarring the catching of migratory fish of the sea within the limits of the marine district—and prescribe the terms and conditions on which it may be granted. See Rules and Regulations noted under different sections. It is essential to observe at this point the force of Rules 34 and 35 as to the amendment and abrogation of rules, the issuance of licenses and the construction thereof : The conservation commission reserves the right to alter, amend, or abrogate any or all of its rules and regulations, and may adopt new ones at any time as the commission may deem expedient. Noth- ing contained in any of these rules and regulations shall be con- strued as compelling the issuing of a license to any person nor to prevent the revoking of such license at any time. No license or permit issued by the commission under Article 5 of the Conservation Law shall be deemed to authorize the licensee, or person to whom such a permit is issued, to trespass upon any private lands, or to do any injury thereto, or to exclusively occupy any land owned by the state, including lands under water, or to - exclusively use any public waters of the state. These rules as far as revocation is concerned do not apply to hunting licenses. While it was held in Lewis v. State, 96 N. Y. 71, that the State was not liable for the negligence or misfea- sance of its agents in those cases where by legislative enactment, it has not assumed such liability, it was stated in Remington v. State, 116 A. D. 522, that in view of the duty of the Commission to propagate and distribute food and game fish, it might be lable for trespasses com- mitted for those purposes. Compare section 59, subdivision 1 b. The fish culturist appointed by the Commission has charge under its direction of the culture of fish and shell-fish. In addition to his salary of $4,000 per annum, 80 Game Law GuiIpDE he is reimbursed his actual and necessary traveling expenses incurred in the performance of his duty. See Section 151. Over and above the general enactments protecting fish and game, provision for additional protection by order of the Commission on a basis of wide discretion is made in Section 152: 1. Ten or more citizens of the state may file with the commission a petition in writing requesting it to give to any species of fish other than migratory food fish of the sea including fish or game birds or quadrupeds, protection or additional protection to that afforded by the provisions of this article. Such petition shall state the grounds upon which such protection is considered necessary, and shall be signed by the petitioners who shall attach their _ addresses. This applies to all fish except migratory food fish of the sea. The Commission could order protection for fish, birds or quadrupeds not now protected. No verification of the petition seems to be required, but it would add force and form. 2. If the commission shall after hearing petitioner entertain the petition, it shall hold a public hearing im the locality or county to be affected upon the allegations of such petition at such time and place within the locality or county affected as the commission may determine within twenty days from the filing thereof. At least ten days prior to such hearing notice thereof, stating the time and place at which such hearing shall be held, shall be advertised in a newspaper to be selected by the commission and published in the counties or county to be affected by such additional or other pro- tection or if less than a whole county, in or near the locality which may be affected. Such notice shall contain a brief statement of the grounds upon which such application is made, and a copy thereof shall be mailed to each petitioner at the address given in such petition at least ten days before such hearing. GENERAL PowrERs AND Duttrs oF Commission 81 No mintmum acreage of land or length or size of stream or body of water seems to be fixed. 3. If upon such hearing the commission shall determine that such species of fish or game, by reason of disease, danger of extermina- tion or from any other cause or reason, requires such additional or other protection, in any locality or throughout the state, the com- mission shall have power by order to prohibit or regulate during the open season therefor, the taking of such species of fish or game. Such prohibition or regulation may be made general throughout the state or confined to a particular part or district thereof and the order shall fix the day when the same shall take effect and the commission shall sign and enter the order in its minute book. 4. At least thirty days before the day fixed for such order to ‘take effect, copies of the same certified by the secretary to the commission shall be filed in the office of the clerk of each county containing a district or any part of a district to which the pro- hibition or regulation applies. At least thirty days before such order shall take effect the commission shall cause the same to be published in a newspaper in each county wherein such prohibition or regulation shall apply. THe ADDITIONAL OrDERS Now IN Force ARB: SSS SSS SSS SSS SSS EEE SPECIES County Period Expires Pheasants... 2.0... OR KAMET: 2.825.285. 2-1 teehee ca ew Oiyearsiys cre 4 ais s\5 « Oct. 1, 1918 Pheasants. esc: OTRE DORIS Aare os there Twolyears acs «45 = 06 ¢ Oct. 1, 1918 Pheasants WMelswraresccrtentacye ume cae tele DWOLVEATBejetars o.2<) stars Oct. 1, 1917 Pheasants Oneida inci mpc pualened woe tere IR WOTyGaAtAr tis Sc c.cla. Oct. 1, 1918 Pheasants IMontgeomeryienniee ce eae TM WORY CATSers a0 dies « ons Oct. 1, 1918 Pheasants Whe wists fs hyn ea a eae oe tahoe WAWOryearss. 6 dias oss Oct. 1,1918 Pheasants Waren) Akin, soe ceca enn oe Ui WwOryeansaeriitis cre Oct. 1, 1918 Pheasants Sta lbawrenGeseaacre o oltne ck TWO} VeSrpe ast = =<: Oct. 1, 1918 Pheasants. 1. o.-1- Hiramiline pee tet eee mie eta eats iRwo years). i210 i Oct. 1, 1918 Phensamnts! aac. scot, Clinton seek hoo tame TWO) VATS ice cot ccsls = Oct. Ay Lot, Pheasants. .)..5 2:5 UBRG Re (ie MetSAP NON. opt te ae TRWOLVCSIBa oes oa. ni Oct: .1,,1918 IPheasants:... cs. 36- Alemany aves). cto ce ote co tian TR WOLY.CATS cy. t.< 66.5, Oct. 21, 1917 iPheasants:..4... «+: HLM Coy Ee Yenet aeyOle gs eRe MER AO oe TiwOVGaLsbers <5 als 4 ae Oct. - 1, 19K? Pheasants. 3.2... -- @attarauguse ia. cts oe ae eee ele RWO)VESIB staaic sce Oct. 1,1917 PReasantsics acocsis.oi- Whautauvquayy so scmrssie ay aspen Ti WOVVOAIS), ss: ctevevs since Oct. 1, 1917 PeheasANLS: 25.605 Ota ie ero cies MWORVeatss cc at corer Oct. 1,1918 Pheasants......... SUL iy aral ey Seal ones th re stat esas es rete EP WOvYy. GATS ors dase eines Oct. 1, 1918 Cotton tail rabbits. |) Richmond 4. ...0.0.: 02.0. .056.05. Oct. 1 to Nov. 14 and| No date. Jan. 1 to 31. Cotton tail) rabbits! Rockland)... 225.5..26. 0. cies ee « Oct.1to3landJan.1} Oct. 1, 1918 and varying hares. to 31. Varying hares...... Catlaraticusce ce cee eee TiwOryea4rsi: he 4+--u- cies Oct. 1, 1918 Bleek bass. vei. Lake Erie and Niagara river....| June 16 to June 30...] No date. Black -bass......... All waters in the towns of Chester,| June 16 to July 15...} June 15, 1917 Horicon and Johnsburg, War- ren county. eaal mouth black} Lake Bonaparte, Lewis county...| June 16 to June 30...} June 16, 1918 ass. Black basst.....5..: Schroon and Paradox lakes..... June 16 to July 15...| June 15, 1917 Bass, pike, perch,| Grass Lake, towns of Alexandria] Taking through ice| Jan. 1, 1917 pickerel and bull- and Rossie, counties of St. prohibited. heads. Lawrence and Jefferson. Pike and pike-perch.| Butterfield lake, Jefferson county.| Tip-ups prohibited...| Jan. 1, 1917 6 82 Gamr Law GuIDE Tue ADDITIONAL OrDERS Now 1n Force Arr — Continued oo eee: SPECIES Ruffed grouse...... Black, gray and fox squirrels. Pike, pickerel and perch. Pickerel and _ pike- perch. Pike, great northern pike and pickerel. Pike-perch pickerel. and Abhostesrts 5 oo soe San Brook trout.......- Brook trout........ Pheasants......... IPHEASANtSinc cc cieis1s > County Genesee iacrincistoseeteke ee cone Genesee eee ae ce eis ace Clear lake, town of Alexandria, Jefferson county. Goodyear lake, town of Milford, Otsego county. Town of Theresa, Jefferson county, Red lake, Hyde lake, Moon lake, Muscalonge lake. Waters of Saratoga lake extend- ing to Bryant’s Bridge and waters of Lake Lonely, Sara- toga county. WUtChess COUNtYs. cle eeleesiseies Otter creek, Dorsey creek, Skate creek, High Rock creek, Cage creek, Panther creek, Wolf creek, Robinson river, Glasby creek, Cranberry lake, inlet above High falls, Six Mile creek, Chair Rock creek, Sucker brook, East creek and Brandy creek, together with the tribu- taries thereto in the towns of Fine, Clifton and Colton in the county of St. Lawrence; and Cranberry lake inlet below High falls in said towns and county. Herkimer county, town of Rus- sia. That the waters affected by this order are the waters of Buttermilk brook, Tainter brook, Wilts brook, Haughton brook, Bemis brook, Bingdyce brook, Smith brook and Mc- Alister brook, in the town of Russia, county of Herkimer. Putnam countye noes eeeciece WisterJcountyme: cores ene or Period TWO VEAarB) cece eve TDWONY.CATS pareve seers Tip-ups prohibited.. . Feb. 1 to Mar.1.... Five years; five tip- ups only to be op- erated by one per- son between sunrise and sunset. Pickerel not less than 20 inches in length shall be taken or possessed. Three years; five tip- ups only to be op- erated by one per- son between 6 A. M. and 6 p. M.. Said tip-ups to be re- moved from water between the hours of 6 Pp. mM. and 6 A.M. AR Tip-ups prohibited.. . OUT Ny CATS e sleciete ete Two years from April 1917. T wo years)sns de oe AD WONV.CATA cya meiritete Expires Oct. 1, 1918 Oct. 1, 1918 Jan. 1,1921 Feb. 1,1919 Jan. 1,1921 Oct. 1, 1921 Sept. 1, 1920 April 1, 1919 Oct. Oct. 1, 1918 1, 1918 _——————————— | Further provision is made for the establishment of fish and game closes in Section 153: The commission may, on request of a majority of the town board of any town or a majority of the common council of any city, by order, prohibit or regulate the taking of birds or game on lands set aside, with the consent of the owner or owners thereof, as bird and game refuges for a period of not to exceed ten years. like request, when fish have been or shall be placed in waters of a town or of a city at the expense of the state, the commission may On a GENERAL PowkkS AND Duties oF ComMISSION 83 by order prohibit or regulate the taking of fish from such waters, for a period of not to exceed three years. At least thirty days before such order shall take effect, a copy of the same certified by the secretary to the commission shall be filed in the office of the clerk of the town or eity in which the prohibition or regula- tion apples. Printed notices at least one foot square that such lands or streams have been closed, shall be posted along the boundaries of the land, or along the shores or banks of the waters affected not more than fifiy rods apart measured along the said boundaries and along said banks. Any person who shall violate or attempt to violate any such order shall be guilty of a misdemeanor, and shall, upon convic- tion, be subject to a fine of not to exceed one hundred dollars, or _ shall be imprisoned for not more than thirty days, or both, for each offense and in addition shall be liable to the penalties herein- after provided for taking fish, birds or quadrupeds in the close season. An affidavit of the facet of such stocking with fish or of posting such notices or a certification of such facts by a game protector when jiied in the office of the commission shall be presumptive evidence of the facts stated therein and a copy of either when cer- tified by the secretary to the commission shall be competent evi- dence in any action or proceeding for enforcement of any of the provisions of this section. Compare section 182 as to penalties. Compare sections 360 to 366 on matters of posting. The affidavit, it seems, may be made by any person having knowledge of the stocking. In connection with the subject-matter of both Sections 152 and 153, it has been held in the case of Vermont v. Theriault, 43 L. R. A. 290, that a person is not unlaw- fully deprived of his private rights where the State pro- hibits all fishing in his stream for a certain period of time. In establishing a fish close the consent of the owner of the lands does not seem to be required as in like cases in Vermont, but it is doubtful if the Commission would without a hearing and an effort to secure such consent establish a close thereon. This particularly would be true in a case when the stream has not been stocked with the consent of the owner. 84 GAME Law GuIDE No minimum acreage of land, mileage of stream or size of waters is fixed. Bird and game closes have been established in the fol- lowing counties and towns: County Town Otsego. ..............2+++0+... Richfield Springs and Springfield Center. ISSORG A) dciecychuc sfelniedetey pos Siemapioyey UBSOX: I SSOR tc lshes adda teense te etenete aes Essex. OtseeG: wn. sarod e ache bids oe 5st Oneonbar iensselaernre. ./ fie, «tapes. ote oreo ade a pe LLM, Oneida ecaeecks rick sitss selene ts wid) gq Daneertield: GOS BBs hehe Se. wswie\s eis ice: bs ee Se ore LOWER OE TO ied = sei osies abs 1d thats 6 aiois: erate ars tan O WEROs Seer ue rey. Meier aid ata'als ayes Ade Essex. Westchester... oi2!.sisacs-0 oie einen INGW Moasules Onna ras tre wilh. oocke ne ct euthe any banlaas. Chena sek aids. sisiee peepee day big Mates GENERGEHe laws 4c). Liked coe dmeneey I ebnay. Rensselaer ils¢. i.svetaisd oe Hae pee aeklin, Chenango..............5....2s+.+. Ineluding State Game Warm) and surrounding territory. Matters of fishing seem preferably to be disposed of through protective orders. Compare section 366 on Game Refuges. Both of these sections, 152 and 153, are to be con- sidered with Section 12, subdivision 8, of the County Law, which authorizes the board of supervisors in any county of the State to: “Provide for the protection and preservation subject to the laws of the state of wild animals, birds, and game and fish and shell-fish within the county; and prescribe and enforce the collection of penalties for the violation thereof.” See section 169 of the Conservation Law on the duty of game protectors to enforee these laws. Compare section 4, subdivision 13, of chapter 194 of the Laws of 1849. Compare section 1, subdivision 16, of chapter 482 of the Laws of 1875. Compare section 12, subdivision 8, of chapter 686 of the Laws of 1892. GENERAL Powers AND DuttEs of ComMMISSION 85 By Chapter 488 of the Laws of 1892, Forest, Fish and Game Law, Section 272, all laws or ordinances theretofore passed by any board of supervisors of any county in the State relating to birds, fish, shell-fish and wild animals, were repealed except those passed in Suf- folk county as to salt water fishing. Compare section 334 of the Conservation Law. By Section 273 of Chapter 488 of the Laws of 1892, however, it was still provided: “Boards of supervisors may pass at their annual session such laws and ordinances as shall afford additional protection to and further restrictions for the protection of birds, fish, shell fish and wild animals, except wild deer, and to prohibit the taking and killing of the same, but no such ordinance shall be operative until a duly authenticated copy thereof shall have been filed in the office of the clerk of the county, and published in the papers in such county in which the session laws are published and filed in the office of the secretary of state, and it shall be the duty of the secretary of state to furnish a copy of such ordinance to the chief game protector, and to print all such ordinances in the volume of session laws for the current year. No such ordinance shall take effect until the first day of May next after its passage.” The volumes of the Session Laws of 1893, 1894 and 1895 contain the lists of such laws and ordinances. In 1895 in the case of People v. Fish, 89 Hun 163, upon an interpretation of both the County Law and the Forest, Fish and Game Law, it was held that the power con- ferred upon boards of supervisors extended only to the enactment of such restrictions and prohibitions as were additional to those contained in the general state laws or in special or local State laws which State laws it might be seen were not intended to and did not cover the whole subject or take it exclusively to themselves. It was further stated that such supervisor’s laws could not conflict with or override state legislation on the same subject. 86 GamE Law GuIpDE The volumes of the Session Laws from 1896 inclusive on do not contain any such laws or ordinances passed by boards of supervisors and there evidently were none considered valid, due to this decision. All of Chapter 488 of the Laws of 1892 was repealed by Chapter 20, of the Laws of 1900, Forest, Fish and Game Law, but the section of the County Law, for what reason it is hard to say, still remains apparently undis- turbed. In 1902, the Attorney-General in rendering an opinion on the interpretation of this section of the County Law in question merely referred to the case of People v. Fish and reiterated that additional restrictions apparently might be made by boards of supervisors provided such restrictions did not conflict with or override state legis- lation. Attorney-General’s Report, 1902, page 298. This power vested in boards of supervisors whatever it is has been declared constitutional. See New York State Constitution, article III, section 27 Smith v. Levinus, 8 N. Y. 472. People v. Alden, 112 N. Y. 117. This authority must however be so exercised as to make restrictions general in their application and can- not be used to create any privileged class as for instance those within the county. Hallock v. Dominy, 7 Hun 52 (69 N. Y. 238). The difficulty with this power of the board of super- visors is to determine in what respects it may be exer- cised and the lengths to which it can go. It would appear to authorize the establishment of close seasons, prohibit the use of certain kinds of guns, appoint and pay county protectors as is done in Maine, feed game birds and quadrupeds and make other provisions which might be | | | : | | | | GENERAL Powers AND Duties oF ComMmiIssIon 87 said to be consistent with the scheme of the law and not in conflict with it inasmuch as would they give greater and not less protection to fish and game. This philosophy, however, is not supported by People v. Fish, for in that case a supervisor’s law forbidding the netting of menhaden where the State law permitted it, was condemned in broad terms. Because of its ‘‘ subjection’’ and this uncertainty as to what would be deemed covered by the State law and what not and in view of the broad powers of the Com- mission as to additional protection, closes and refuges under the Conservation Law, it would seem altogether wise to repeal the section of the County Law for it appears to have been treated for practical purposes as valueless since the decision in People v. Fish. In fact the purpose of the Conservation Law is to cover the subject of fish and game. Another form of expression, which the so called state ownership of wild animals assumes is the authorized seizure and confiscation not only of the animals taken contrary to the law, but in many instances and to dif- fering extents the confiscation and forfeiture of the paraphernalia used in the commission of the violation. This exercise of the police power has apparently never been seriously questioned as far as the anwmals acqumred or possessed in contravention of the statute are con- cerned, but it has been attacked as unconstitutional to the extent that the forfeiture of the devices used attached, and in the main, in vain. A reference to at least a few of the authorities upon this vital proposition cannot be other than of surpassing interest and value, both from the standpoint of the police power in general and its exercise in this respect in particular. In the case of Lawton v. Steele, 119 N. Y. 226 (1890), 152 U. S. 133, Chapter 317 of the Laws of 1883, Section 88 Game Law GuIDE 2, corresponding largely to the present Section 282 of the Conservation Law on vets, was challenged as in viola- tion of the constitutional provision that no person shall be deprived of his property without due process of law. The defendant, a game protector, had seized and de- stroyed certain nets, the property of the plaintiff, used in violation of the law and the acts of the protector and the statute under which he justified himself were upheld both in the New York Court of Appeals and the Supreme Court of the United States upon grounds set forth in the following excerpts from the opinions written in those cases: “The act in question declares that nets set in certain waters are public nuisances, and authorizes their summary destruction. The statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nui- sances, or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare ef the community, public nuisances, although not such at common law. There are, of course, limitations upon the exercise of this power. The legislature cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or interest is involved, declare property a nuisance for the purpose of devoting it to destruction. There are numerous examples in recent legislation of the exercise of the legislative power to declare property held or used in violation of a particular statute, a public nuisance, although such possession and use before the statute were lawful. The legislative power to regulate fishing in public waters has been exercised from the earliest period of the common law. Tt has become a settled principle of public law that power resides in the several states to regulate and control the right of fishing in the public waters within their respective jurisdictions. We think it was competent for the legislature, in exercising the power of regulation of this common and public right, to prohibit the taking of fish with nets in specified waters, and by its declaration, to make the setting of nets for that purpose a public nuisance. The legislature in the act in question, acting upon the theory and upon the fact (for so it must be assumed) that fishing with nets in GENERAL Powrrs AND DuttEs oF CoMMISSION 89 prohibited waters is a public injury, have applied the doctrine of the common law to a case new in instance, but not in principle, and made the doing of the prohibited act a nuisance. This we think it could lawfully do. The more difficult question arises upon the provision in the second section of the act of 1883, which authorizes any person, and makes it the duty of the game protector to abate the nuisance caused by nets set in violation of law, by their summary destruction. The right of summary abatement of nuisances without judicial process or proceeding was an established principle of the common law long before the adoption of our constitution, and it has never been supposed that this common law principle was abrogated by the provision for the protection of life, hberty and property in our State Constitution, although the exercise of the right might result in the destruction of property. The public remedy is ordinarily by indictment for the punishment of the offender, wherein on judgment of conviction the removal or destruction of the thing constituting the nuisance, if physical and tangible, may be adjudged, or by bill in equity filed in behalf of the people. But the remedy by judicial prosecution in rem or in personam, is not, we conceive, exclusive, where the statute in a particular case gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished. But as the legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abatement by executive officers, without the intervention of judicial proceedings, in cases analogous to those where the remedy by summary abatement existed at common law. But the remedy by summary abatement cannot be extended beyond the purpose implied in the words, and must be confined to doing what is necessary to accomplish it. And here lies, we think, the stress of the question now presented. It cannot be denied that in many cases a nuisance can only be abated by the destruction of the property in which it consists. The cases of infected cargo or clothing and of impure and unwholesome food are plainly of this description. They are nuisances per se, and their abatement is their destruction. So, also, there can be little doubt, as we conceive, that obscene books or pic- tures, or implements only capable of an illegal use, may be destroyed as a part of the process of abating the nuisance they ereate, if so directed by statute. The keeping of a bawdy house, or house for the resort of lewd and dissolute people, is a nuisance at common law. But the tearing down of the building so kept would not be justified as the exercise of the power of summary abatement, and it would add nothing, we think, to the justification that a statute was produced authorizing 90 GamrE Law GUIDE the destruction of the building summarily as a part of the remedy. The nuisance consists in the case supposed in the conduct of the owner or occupants of the house, in using or allowing it to be used for the immoral purpose, and the remedy would be to stop the use. This would be the only mode of abatement in such case known to the common law, and the destruction of the building for this purpose would have no sanction in common law or precedent. But where a public nuisance consists in the location or use of tan- gible personal property, so as to interfere with or obstruct a public right or regulation, as in the case of the float in the Albany basin (9 Wend. 571), or the nets in the present case the legislature may, we think, authorize its summary abatement by executive agencies without resort to judicial proceedings, and any injury or destruction of the property necessarily incident to the exercise of the summary juris- diction interferes with no legal right of the owner. But the legislature cannot go further. It cannot decree the destruction or forfeiture of property used so as to constitute a nuisance as a punishment of the wrong, nor even, we think, to prevent a future illegal use of the - property, it not being a nuisance per se, and appoint officers to execute its mandate. The plain reason is that due process of law requires a hearing and trial before punishment, or before forfeiture of property can be adjudged for the owner’s misconduct. Such legislation would be a plain usurpation by the legislature of judicial powers, and under guise of exercising the power of summary abatement of nuisances, the legislature cannot take into its own hands the enforcement of the criminal or quasi-criminal law. The inquiry in the present case comes to this: Whether the destruc- tion of the nets set in violation of law, authorized and required by the act of 1883, is simply a proper, reasonable and necessary regu- lation for the abatement of the nuisance, or transcends that purpose, and is to be regarded as the imposition and infliction of a forfeiture of the owners’ right of property in the nets, in the nature of a punish- ment. We regard the case as very near the border line, but we think the legislation may be fairly sustained on the ground that the destrue- tion of nets so placed is a reasonable incident of the power to abate the nuisance. Tt is conceivable that nets illegally set could, with the use of care, be removed without destroying them. But in view of their position, the difficulty attending their removal, the liability to mjury in the process, their comparatively small value, we think the legislature could adjudge their destruction as a reasonable means of abating the nuisance. Tt is insisted that the provision in the act of 1883 authorizes the destruction of nets found on the land, on shores or islands adjacent to waters, where taking of fish by nets is prohibited, and that this part GENERAL Powers AND Duttss oF CoMMISSION 91 of the statute is in any view unconstitutional. Assuming this premise it is claimed that the whole section must fall, as the statute, if uncon- situtional as to one provision, is unconstitutional as a whole. This is not, we think, the general rule of law, where provisions of a statute are separable, one of which only is void. On the contrary the general rule requires the court to sustain the valid provisions, while rejecting the others. Where the void matter is so blended with the good that they cannot be separated, or where the court can judicially see that the legislature only intended the statute to be enforced in its entirety, and that by rejecting part the general purpose of the statute would be defeated, the court, if compelled to defeat the main purpose of the statute, will not strive to save any part.” See the present reading of section 282 as to presumptive evidence. One of the dissenting judges of the Supreme Court of the United States in the course of his opinion made the following statement: “The police power rests upon necessity and the right of self-pro- tection, but private property cannot be arbitrarily invaded under the mere guise of police regulations, nor forfeited for the alleged violation of law by its owner nor destroyed by way of penalty inflicted upon him without opportunity to be heard.” The Wisconsin act, a practical counterpart of Section 282, was upheld by the Wisconsin courts in the case of Bittenhaus v. Johnston, 32 L. R. A. 380, an extract from the opinion in the case reading as follows: “The plaintiff having voluntarily put the nets to an unlawful use which made them public nuisances under the statute, is in no position to recover damages from the defendants for having as public officials obeyed the law in abating the nuisance by seizing and destroying the nets. Of course the plaintiff had his right of action to determine whether the nets were or were not in such unlawful use. We must hold that the plaintiff has not been deprived of his property without due process of law.” -Chapter 383 of the Laws of 1896, which provided for the summary seizure of any boat or vessel used by one person in interference with oysters or other shell-fish belonging to another and for its forfeiture and sale by 92 GAME Law GuIDE an exclusive procedure before a justice of the peace with no provision for a jury trial, was held in the case of Colon v. Lisk, 153 N. Y. 188 (1897) to be in violation of Article I, Sections 2 and 6 of the New York State Con- stitution and the 14th Amendment to the United States Constitution, particularly on the ground that the act in- volved an unauthorized confiscation of something used in interference with private rights as distinguished from the public right, interest and welfare involved in Lawton v. Steele. In the case is the following quotation from Lawton v. Steele, 152 U. 8S. 133: “Tf authority to enact the statute under consideration existed, it was by virtue of the police power vested in the legislature. Under the power, persons and property may be subjected to necessary restraints and burdens to secure the general public good. That that power exists is undenied. ‘That it is necessary to the proper maintenance of the government of the state and the general welfare of the community, must also be admitted. Although it includes everything essential to the safety, health, morals and general good of the public, it is by no means unlimited. To justify the state in thus interposing its authority in behalf of the public it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private busi- ness or impose unusual and unnecessary restrictions upon lawful oceu- pations. In other words, its determination as to what is a proper exer- cise of its police powers is not final or conclusive, but is subject to the supervision of the courts.” The case of McConnell v. McKillip, 65 L. R. A. 610 (1904), involved the test of the validity of a Nebraska . statute which provided 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 GENERAL PowrERS AND DutiEs oF COMMISSION 93 made the duty of the commissioner and every oflicer charged with the enforcement of this act to seize, sell, or dispose of the same in the manner provided for the sale or disposition of property on execution, and to pay over the proceeds thereof to the county treasury for the use of the school fund.” Under this act, guns were seized by a protector and an action in replevin was brought against him by the owner of the guns. The Supreme Court of Nebraska in deciding the case and declaring the act unconstitutional rendered an opin- ion of which the following are partial quotations: “The protection of wild animals suited for the purpose of food from indiscriminate slaughter by hunters has been the object of legis- lation from the most ancient times. The theory upon which the law- making power assumes to act is that all wild game belongs to the state in its sovereign capacity as a trustee for the 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 preserva- tion, and such penalties with reference to a violation of such regula- tions, as are necessary to accomplish the end desired,— the preserva- tion to the people of the state of the pleasure, sport and profit derived from the hunting, pursuit and capture of wild animals living therein. In this case, the defendant in error, McKillip, admits that it is within the power of the state, in the just exercise of its police powers, to prohibit the killing of fish and game at certain seasons of the year, but denies that it has the right to take his property from him and confiscate it to the state without giving him his day in court. He con- tends that the police power in regard to the confiscation of guns, dogs, blinds, decoys and fishing tackle is upon exactly the some footing as the police power in regard to regulation 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 to whether the owner was engaged in unlawfully selling or keeping for sale intoxicating liquors, so there must be as to his property. He further contends that since the statute contains no provisions for deter- mining whether the property was liable to condemnation for the erim- inal acts of those who had it in their possession, and since it merely authorized the game warden to seize the property without warrant or process, to condemn it without proof, and to sell it as upon execi- tion, it deprives the plaintiff of the property rights which are guaran- teed to him by the Constitution.” 94 Gamer Law GuIpDE After a reference to and a discussion of several author- ities, among them the Wisconsin case, Bittenhaus v. Johnston, and in chief the New York case, Lawton v. Steele, the opinion quotes from the latter case as decided by the United States Supreme Court to this extent: “The main, and only real difficulty connected with the action in question, is in its declaration that any net, ete., maintained in violation of any law for the protection of fisheries is to be treated as a public nuisance ‘and may be abated and summarily destroyed by any person; and it shall be the duty of each and every protector aforesaid, and every game constable, to seize, remove and forthwith destroy the same.’ The legislature, however, undoubtedly possessed the power, not only to prohibit fishing by nets in these waters, but to make it a criminal offense, and to take such measures as were reasonable and necessary to prevent such offenses in the future. It certainly could not do this more effectu- ally than by destroying the means of the offense. * * * In this ease there can be no doubt of the right of the legislature to authorize judi- cial proceedings to be taken for the condemnation of the nets in ques- tion, and their sale or destruction by process of law. Congress has assumed this power in a large number of eases, by authorizing the condemnation of property which has been made use of for the purpose of defrauding the revenue. Examples of this are vessels illegally registered or owned, or employed in smuggling or other illegal traffic, distilleries or breweries illegally carried on or operated, and buildings standing upon or near the boundary line between the United States and another 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 in the path of conflagrations, the destruc- tion of decayed fruit, or fish or unwholesome meats, of infected cloth- ing, obscene books or pictures, or instruments which can only be used for illegal purposes. While 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 object to be accom- plished is conducive to the public interest, it may exercise a large liberty of choice in the means employed.” The opinion goes on to say: “No case has been brought to our attention in which a court has construed a statute which provides for the seizure, forfeiture to the GENERAL PowrErRs AND DutTIEs oF CoMMISSION 95 state, and sale of property of the kind involved in this case which has been used in violation of the game laws. As a rule the statutes have declared nets and like devices which can only be used in violation of law to be public nuisances, and provided for their abatement by their destruction by public officers. The distinction between nets, which, under the laws of the states providing for their destruction, can only be used for an unlawful purpose, and firearms, which, under the laws of this and other states, may be used for many other purposes, inno- cent and lawful in their nature, is clearly apparent, and has been recognized by our legislature in the act under consideration. In 1, article 3 of this act, the legislature of the state has provided: ‘ Every net, seine, trap, explosive, poisonous or stupefying substance or device, used or intended for use in taking or killing game and fish in violation of this act is hereby declared to be a public nuisance, and may be abated and summarily destroyed by any person; and it shall be the duty of every such officer authorized to enforce this act to seize and summarily destroy the same, and no prosecution or suit shall be main- tained for such destruction: Provided, that nothing in this subdivision shall be construed as authorizing the seizure or destruction of firearms, except as hereinafter provided.’ The provisions of this section as to nets and like devices are substantially the same as those contained in the game laws of New York and Wisconsin, heretofore referred to, and with the conclusions of these courts with reference to laws of like nature we have no fault to find. But there is a broad distinction between this section and section 3 under which the plaintiff in error justifies. The legislature has not declared a gun to be a public nuisance and has not ordered its destruction as an abatement of the same. The seizure of the property provided for by this section is evidently intended, not only to put it out of the power of the offending person to carry on the destruction of game by depriving him of the implement of destruction, but also to operate as a penalty or punishment for an unlawful act committed by him. It is of the nature of a common-law forfeiture of goods upon conviction of a crime. There is a clear and marked distinction between that species of property which ean only be used for an legal purpose, and which, therefore, may be declared a nuisance and summarily abated, and that which is innocent in its ordinary and proper use, and which only becomes illegal when used for an unlawful purpose. We know of no principle of law which justifies the seizure of property, innocent in itself, its forfeiture, and the transfer of the right of property in the same from one person to another as a punishment for crime, without the right of a hearing upon the guilt or innocence of the person charged before the forfeiture takes effect. If the property seized by a game 96 Gamer Law GuIpE keeper or warden was a public nuisance, such as provided for in sec- tion 1, he had the right under the duties of his office at common law to abate the same without judicial process or proceeding; and the great weight of authority is to the effect that such common-law rights have not been abrogated or set aside by the provisions of the Constitution; if the property is of such a nature, that though innocent in itself and susceptible of a beneficial use, it has been perverted to an unlawful use, and is subject to forfeiture to the state as a penalty, no person has the right to deprive the owner of his property summarily, without affording opportunity for a hearing and without due process of law. The usual course of proceedings in such ease has been either, as in admiralty and revenue proceedings, to seize the property, libel the same in a court of competent jurisdiction, and have it condemned by that court, or, as in criminal matters, to arrest the offender, and to provide that upon his conviction the forfeiture of the property to which the offender’s guilt has been imputed, and to which the penalty attaches, should take place. These have been the methods of procedure for cen- turies. No other has been pointed out to us in the brief of the plaintiff in error. We are therefore constrained to the opinion that in so far as the section under consideration provides for the seizure, forfeiture and tansfer of title to property without a hearing upon the guilt or inno- cence of its owner, it violates the constitutional provisions. Whether or not a forfeiture can be provided for as a punishment for crime under our Constitution is a question not raised or decided in this ease.” The proved illegal use, to which any device whether termed legal or illegal, is actually put seems to be the test as to whether forfeiture can properly be made to attach to it. , A punt or swivel gun, usually deemed an illegal device, when operated by one in possession of a hunting license could be legally used to take birds and quadrupeds not protected by law. Minnow seines or nets to take minnows for one’s per- sonal use and not for sale or landing nets to secure angled fish ean be legally used by any person without a license. ) But barring the exception in Section 185, subdivision 8, no gun of any kind can be legally used to take wild birds GENERAL PowrErRs AND DvtutTIEs oF CoMMISSION 97 or quadrupeds, whether protected by law or not, with- out a license and full compliance with all the subdivi- sions of Section 185. Such considerations as these have been urged to dis- count the distinction drawn in McConnell v. MekKillip between nets and guns. The Nebraska statute, however, provided for a for- feiture summary in character and not based upon con- viction or confession of guilt, of that which the court held, could not be deemed a nuisance per se and was not declared by statute to be a nuisance. The gist of these decisions appears to be to uphold and authorize as proper exercises of the police power with reference to the protection of the public property in fish and game: First. The abatement without trial or hearmg by summary forfeiture and destruction, of devices used which may properly be deemed or declared to be nuisances per se, such as alegal devices. See Section 282 on nets, Section 221 on snares, nets and traps for birds and Section 177-1 on guns not fired at arm’s length from the shoulder. Second. The abatement without trial or hearing by summary forfeiture and destruction, of devices used, made nuisances by statute where abatement reasonably or necessarily involves destruction. See the same sections above referred to. Third. The forfeiture to and disposition of by, the state, of devices otherwise legal, but illegally used or used in connection with a violation of the law whether declared nuisances or not, upon conviction, jadgment or confession of the unlawful use. 3 In any event, it seems, the offender may test the valid- ity of the exercise of the power upon the issue of actual use of the device. (i 98 Game Law GuIDE Upon one or two or all three of the above principles, the statutes of practically all the states and all of the Canadian provinces more or less drastically provide for the seizure, confiscation and forfeiture of parapher- nalia of all kinds. The Pennsylvania statute provides for a conditional seizure and sale to satisfy the fine or penalty imposed in case of its non-payment, regardless of whether the offender suffers in addition by imprisonment or not: “All guns, boats, decoys, dogs, game, and shooting paraphernalia, seized when such arrest is made shall be held subject to the deter- mination of the proceedings instituted. Where the party accused is convicted all game seized shall be forfeited to the Commonwealth, and as soon as may be shall be forwarded to the most convenient hospital, or to a hospital designated by the Secretary of the Game Commission, for the use of the sick or injured therein. Unless the fine and costs are paid, all such seized guns, boats, decoys, dogs and shooting para- phernalia shall be sold at public auction, after advertising the same for five days, by at least five public handbills conspicuously posted in the city, borough, or township wherein the conviction was secured. The sale shall be held by or under the authority of the proper alder- man, magistrate, or justice. The cost of such advertising shall be part of the costs of prosecution, and shall be collected as such. Any fund thus arising shall be applied first to the payment of the costs of prose- cution, then to the payment of the fine imposed. The remainder, if any, shall be returned to the owner of the property seized. Where game, dogs, boats, decoys or shooting paraphernalia of any descrip- tion shall be seized, and the owner thereof escapes arrest, and refuses to present himself and make claim to the property, all such game, after the lapse of three days after the seizure, shall be forfeited to the Commonwealth, and shall be sent to the most convenient hospital, for the purpose before indicated in this section. All guns, dogs, boats, decoys, and other shooting paraphernalia thus seized shall be held for a period of ten days; after which time, if the owner thereof fail to appear and defend himself against the charges made, such property shall be sold in the manner prescribed for the sale of seized property after conviction. The fund arising from such sale shall be apphed as in the ease of the sale after conviction. The fact that imprisonment is suffered by any person convicted of violating any provisions of this act shall not prevent the sale of guns, dogs, boats, decoys, or other shooting paraphernalia of any description, held as the property of the imprisoned party, and the application of the fund thus realized to the payment of the costs and the fine imposed.” GENERAL Powers AND DvutTIEs oF ComMMISSsION 99 The Oregon Statute provides: “All guns, dogs, boats, traps, fishing apparatus and implements used in hunting or fishing or taking any of the wild animals, birds, or fish of the State of Oregon in violation of the law, shall be declared a public nuisance and shall be forfeited and shall be seized by any member of the State Board of Fish and Game Commissioners, by the State Game Warden, Master Fish Warden, or any deputy or any other officer charged with the enforcement of the game and fish laws of the State, and in case of conviction shall be held, proceeded with and disposed of as may be directed by the State Board of Fish and Game Commissioners; provided, that where deemed practicable, any game seized may be given away for charitable purposes; provided further, that any moneys derived from the sale of any seized guns, dogs, boats, traps, fishing apparatus, or implements shall be deposited in the game protection fund and used for the protection and propagation of any game animals, game birds or game fish of the State.” The Wisconsin Statute declares forfeited to the state as public nuisances: “Any net of any kind when set, placed or found in any waters where such net is prohibited to be used. Any seine or other devices, traps or contrivances set, placed, or found in any waters in a manner prohibited by any law relating to such waters. Any gill net operated in inland lakes without a license, or without a metal tag, as required by law. Except as authorized by license duly issued, any set line, cable, rope, or line with more than one fishline attached thereto, either directly or indirectly, or any fishline left in the water unattended by the person using the same, whether having one or more hooks attached. Any building, enclosure, structure, or shelter placed, occupied or used on the ice of any waters in violation of this chapter. Any screen set in public waters to prevent the free passage of fish, or set in any stream which has been stocked by state authorities. Any net, spread upon or under the surface of any waters, which shall or might entrap, ensnare, or kill any wild bird. Except as expressly authorized to be used any trap, snare, spring gun, or other device or contrivance which might entrap, ensnare, or kill any wild animal for which a close season is prescribed in this chapter. Any boat, together with its machinery, sails, tackle and equipment, or any lamp, or light, or gun used in violation of this chapter. 100 Game Law GuiIpeE Any pivot or swivel gun, or other firearm, not habitually held at arm’s length and discharged from the shoulder, while the same is in unlawful use. Any boat, floating raft, box, blind or decoys used or set in season for waterfowl, or in excess of the number authorized to be used, or more than two hundred feet from the weeds, rushes, or other vegetation in which the hunter is concealed. Any dog found running deer at any time, or used in violation of this chapter. Any ferret unlawfully used in hunting, catching, taking or killing rabbits.” Under the Wisconsin act, guns, ete., are confiscated every season. Seizures and forfeitures generally are covered by Sec- tion 154 of the CONSERVATION LAW as follows: Whenever any fish, birds, wild animals or parts thereof, or any devices used in taking the same illegally, are found in the posses- sion or under the control of a person contrary to law, said fish, birds, wild animals, or parts thereof, together with the device or devices used in taking the same, shall be seized and confiscated in the name of the state. The commission may dispose of such fish, birds or wild animals or devices in such manner as it deems proper. See section 222a. See section 1899 of the Penal Law; sections 685-691 of the Criminal Code. This declaration covers essentially all illegal devices in reinforcement of Sections 177-1, 282 and 221, for the use of an illegal device is the worst form of illegal use of a device. See section 322 on lobster traps. The section is broad enough to embrace both animate and inanimate devices and would it seems include not only guns, tackle, boats, artificial stools, ete., but also such aids to taking as dogs, falcons, ferrets and live decoys. Compare section 169 on powers of game protectors. GENERAL Powers AND Duties oF Commission 101 Whether any person, but a game protector could law- fully in good faith make the seizure on behalf of the state is a query but it would seem justifiable in the case of the animals upon proof of the violation and in the ease of paraphernalia on proof of the dlegal use. The best considered authorities appear to hold that a public nuisance can be abated by an individual only where it obstructs his private right or interferes at the time with his enjoyment of a right common to many whereby he sustains a special injury. Lawton v. Steele,-119 N. Y. 237. On the other hand, the offender having acquired no title to the game so taken and having according to the statute forfeited to the state the paraphernalia used would be in a poor position to hold the person making the seizure, liable. Compare James v. Wood, 82 Maine, 173, and the discussion under section 169, chapter XVI. Section 154 based squarely upon illegal use of the device evidently contemplates a seizure by game pro- tectors for purposes of evidence pending conviction or confession of or judgment in a civil action for, the viola- tion; upon that presupposed basis, the confiscation and forfeiture attach to the device on the ground that it con- stitutes a nuisance by virtue of illegal use as well as perhaps a part of the punishment for the offense; and to the game for the reason that no title to it has been acquired; in the event the issue went against the state, no forfeiture could of course legally attach. Compare section 182, on penalties. It is stated in Rockefeller v. Lamora, 106 A. D. 348, that the people can have no interest in trespasses upon posted lands or private parks and to the extent that such holding is true, no forfeiture would attach to parapher- nalia used by persons merely violating Part XI of the law. 102 Game Law GuIDE The rights of the Commission in taking fish are set forth in Section 155: The commission may take fish with nets at such times and in such manner as it may deem proper for the artificial propagation of fish. The commission may also remove, permit or cause to be removed from public or private waters, fish which hinder or pre- vent the propagation of game or food fish. Such removal shall be effected by any means and under such regulations as the com- mission may provide. Fish taken under this section may be dis- posed of and possessed under such regulations as the commission may establish. Any person not in charge of a state net who shall handle or take fish while confined therein, or shall fish within one hundred feet of any leader or net in use by the state shall be guilty of a misdemeanor. Compare sections 176 and 177-2. It was held by the attorney-general in 1910 that the Commission could not issue a license to third person under the section as it then stood. See Attorney-General’s Report, 1910, page 774. The permit now provided for should be carried by the person operating under it. The Commission’s powers in the matter of the pur- chase of fish eggs are governed by Section 156: The commission may purchase from any person, fish eggs, paying for the same in cash, or giving in exchange or in consideration therefor, a percentage of the young fish hatched or produced at any of the fish hatcheries of the state from the eggs so purchased ; and the placing of such young fish in waters on lands of such per- sons shall not be deemed a stocking of such waters with fish by the state, or fish from state hatcheries. Compare section 176 and 177-2. Compare section 360 as to stocking with state fish. The Wisconsin act has a provision to the following effect: “Any person fishing in any of the waters of this state shall deliver, on demand, to the state conservation commission, or its deputies, or GENERAL Powers AND Dutigns oF Commission 103 authorized agents all kinds of fish, during the spawning season, for the purpose of being stripped of their eggs and milt; and the person receiving them shall, immediately after having stripped the fish, return them to the person from whom received. Any such person shall permit the commission, or its deputies, or authorized agents to enter any boats, docks, grounds or other places where such fish may be, for the purpose -of stripping the same while alive, and shall render such assistance as may be necessary to expedite the work of the mixture of the eggs and milt for proper impregnation.” See section 235 as to netting in the Great Lakes. The authority of the Commission to acquire beaver, deer, moose, elk, ete., is covered by Section 157: The commission may acquire by gift, purchase or capture a sufficient number of beaver, deer, moose or elk to stock the Adiron- dack region, and may care for and yard the same temporarily and liberate them in such region and at such times and places as it deems most conducive to their probable subsistence and increase. Deer may be taken alive at any time by the commission to restock the state’s deer parks or to exchange for elk or moose. See section 176. As to the destruction of certain birds and quadrupeds committing depredations and damage, an important pro- vision properly much less liberal than the acts of some other states is made by Section 158: In the event that any species of birds protected by the provisions of section two hundred and nineteen of this article, or quadrupeds protected by law, shall at any time, in any locality, become destruc- tive of private or public property the commission shall have power in its discretion to direct any game protector or issue a permit to any citizen of the state to take such species of birds or quad- rupeds and dispose of the same in such manner as the commission may provide. Such permit shall expire within four months after the date of issuance. See section 176. This section does not apply to game birds as defined by Section 211. See section 219 as to non-game birds. 104 Game Law GuIDE The Massachusetts statute includes pheasants and the laws of several of the states lay particular stress upon deer. In a New Hampshire ease, Aldrich v. Wright, 53 N. H. 398, involving the killing of minks in close season where they were pursuing and killing geese, it was held gener- ally that the killing of wild animals in close season while they were pursuing and destroying domestic animals was not a violation of the game law. See section 196 as to hares and rabbits. See section 199 as to skunks. See section 220 as to defacement of buildings. See section 197 as to beaver. A person operating under this section with a gun must comply with Section 185 on hunting licenses and should be compelled to carry upon his person the permit issued by the Commission. This permit does not justify a trespass. See rule 35. Licenses to collect and possess specimens for propa- gation, scientific or exhibition purposes are provided for in Section 159: _ The commission may issue a license revocable at iis pleaswre to any person, permitting the holder to collect or possess fish, aquatic animals, quadrupeds, birds, birds’ nests or eggs for propagation, scientific or exhibition purposes. Before such license is issued, every applicant except a game protector, duly chartered museum or society incorporated for scientific or public exhibition purposes, or an officer thereof, must file written testimonials from two well known scientific men; pay one dollar for the license and file a bond in the penal sum of two hundred dollars with two responsible sureties, to be approved by the commission, conditioned that he will not violate the provisions of this article or avail himself of the privileges of said license for purposes not herein set forth. Any one may in a manner not amounting to disturb- ance of the wild animals photograph them during the close season without a license. GENERAL Powers AND Duties oF Commission 105 A person operating under such a license with a gun must comply with Section 185 on hunting licenses and should be compelled to carry on his person the license issued pursuant to this section. This license does not justify a trespass. See rule 35. See sections 176 and 219. -The commission may also issue a license revocable at pleasure to any person, permitting such person to possess any species of fish, game birds, aquatic animals or quadrupeds, protected by this chapter, for propagation purposes, upon payment of a license fee of one dollar. The commission may, in its discretion, require a bond from such person, in such sum as the commission may determine, conditioned that he will not avail himself of the privi- leges of said license for purposes not herein set forth. The commission may issue permits to enable persons to ship fish, aquatic animals, game and quadrupeds lawfully taken and possessed for propagation, scientific or educational purposes, under such regulations as the commission may prescribe. Fish, aquatic animals, quadrupeds and game lawfully possessed under this section may be sold at any time by any person receiv- ing a license under this section for propagation, scientific, educa- tional or exhibition purposes only. See rule 23, Persons receiving a license under this section must report the result of operation thereunder annually to the commission, at the expiration of the license. Such license shall be in force for one year only from the date of issue and shall not be transferable. - This does not authorize the possession of fish or game taken in close season or distributed by the State. Subdivision 2 of this section should be availed of by every association organized for or interested in fish and game propagation and protection. Rearing stations for developing purchased fish should be established through co-operation with the Commission and with the farmers 106 GAME Law GuIDE and upon leased land breeding farms for purchased game should be conducted. See section 176 and 219. The publication by the Commission of the laws on fish and game is covered by Section 160: As soon as practicable after the adjournment of the legislature in each year, the commission shall make a compilation of the laws relating to fish and game as amended at the date of such compila- tion, and properly index the same. Copies of said compilation sufficient in number for the purposes of this section shall be printed in pamphlet form of pocket size, under the direction of the clerks of the senate and assembly, and such clerks shall dis- tribute them as follows: one hundred copies to each senator; fifty copies to each assemblyman; twenty thousand copies to the com- mission for general distribution. It shall be the duty of the commission to prepare and issue a syllabus of the said laws and to deliver to county, city and town clerks a supply sufficient for furnishing one copy to each person procuring a hunting or trap- ping license, and each such person shall be entitled to one copy of said syllabus. CHAPTER V HUNTING, TRAPPING AND FISHING LICENSES The regulations and requirements as to licenses and the exaction of fees therefor in all sovereignties appear from the first to have been conceded to be proper exer- cises of the police power. Kyle v. People, 80 N. E. 1081 (IIL). State v. Holeomb, 101 Pac. 1072 (Kansas). Cummings v. People, 211 Ill. 392. Aside from their restrictive and revenue features, licenses furnish the basis for the identification of per- sons in case of violation, trespass or mishap. One of the foremost propositions to be borne in mind with reference to Section 185 on hunting and trapping licenses, is that no birds or quadrupeds or wild animals of any kind whether protected by law or not can be law- fully taken with a gun except in compliance with all of the provisions of the license section. Another principle properly referred to at this point is that the law technically prohibits the taking of birds and quadrupeds protected by law with any other device than the type of gun allowed by statute except where the trap- ping of fur-bearing animals is permitted or special pro- vision is otherwise made. See sections 176 and 177, subdivision 1. Thus, it is claimed, any person especially a minor, under the age of sixteen, is left free, without the use of a gun, to hunt or to trap, without a license, animals not [107] 108 Game Law GuIpE protected by law provided such animals are otherwise legally taken. See section 177-1. é The language ‘‘ or engage im hunting or trapping ”’ together with the definitions of hunting and taking does not appear to overthrow that contention. See section 185 subdivisions 1 and 5. Section 185, subdivisions 1-15, provides: Subd. 1. No person or persons shall at any time hunt, pursue or kill with a gun, any wild animals, fowl or birds or take with traps or other devices any fur bearing animals, or engage in hunt- ing or trapping except as herein provided, without first having procured a license so to do, and then only during the respective periods of the year when it shall be lawful. See sections 158 and 159. This prohibition applies to game protectors and to all persons. The Conservation Law contains no exact definition of what constitutes a gun, but according to Section 1896 of the Penal Law, it includes firearms of all kinds and all guns or instruments in which the propelling force, is spring or air. Hunting is defined by Section 380, subdivision 27, as follows: “ Hunting” includes pursuing, shooting, killing, capturing and trapping game or quadrupeds, and all lesser acts such as disturb- ing, harrying, or worrying, or placing, setting, drawing or using any device commonly used to take game or quadrupeds whether they result in taking or not; and includes every attempt to take and every act of assistance to any other person in taking or attempting to take game or quadrupeds. See section 380, subdivision 26, defining taking referred to under section 176. Huntine, Trapping anp FisHine Licznses 109 The definition of hunting makes apparently equally liable with the hunter, his companions and those who ‘“but follow to fill up the ery’’ unless they promptly repudiate any acts of violation by reporting the same to a game protector or the Commission. Compare People v. White, 124 A. D. 79. Any minor under the age of sixteen or other person, however, provided he does not use a gun, may, it seems, without a license lawfully accompany any person on a hunt, provided he does not actively participate in the actual taking of game. There is no definition of fur-bearing anumals, but of the quadrupeds protected by law, for which an open sea- son is provided, they inelude only the mink, raccoon, sable, skunk and muskrat. All quadrupeds not protected by law which have a fur or pelt value might be so. classified. Excluded are all other quadrupeds protected by law, especially beaver, hares, rabbits, black, gray and fox squirrels. See section 176. The application for such license is provided for as follows: Subd. 2. Said license shall be procured from any county, city or town clerk in the following manner, to wit: The applicant shall fill out a blank application to be furnished by the commission through the clerk of each county, city or town, stating name, age, occupation and place of residence and post office address of applicant, also whether a citizen of the United States or an alien and such other facts or descriptions as may be required by the commission. Said application shall be subseribed and sworn to by the applicant before any officer authorized to administer oaths in the state of New York. Any false statement contained in such application shall render the license null and void. Any person who shall make any false statement in an application for a license, 110 Game Law GuIDE shall be deemed guilty of perjury, and, on conviction thereof, shall be subject to the penalties provided for the commission of perjury. There is nothing which requires an applicant to pro- cure his license from the clerk of the town, city or county where the applicant resides. Any license proved to have been procured in violation of this subdivision is no license and entitles the holder to no protection. Such perjury is punishable by imprisonment for a term not exceeding ten years. See section 1633 of the Penal Law. The fees for licenses are fixed as follows: Subd. 3. Said applicant, if a resident of the state for over six months and a citizen, shall pay to the clerk countersigning and issuing the license the sum of one dollar as a license fee, together with the sum of ten cents as the fee of the county, city or town clerk for issuing such license, and if a nonresident of the state, or an unnaturalized person or an alien, resident or nonresident, shall pay to the clerk countersigning and issuing the license the sum of ten dollars together with the sum of fifty cents as a fee to the clerk. The discrimination against the non-residents and aliens is based mainly upon the philosophy that as between the State and individuals whether citizens resi- dent or non-resident or aliens, the permission to take wild animals which are the property of the State is a privilege extended to them rather than a vested prop- erty right. Acts providing that no person shall at any time hunt -with a gun any of the wild animals or birds which are protected during any part of the year without having procured a license are constitutional and a reasonable exercise of the police power for the protection of game. Cummings v. People, 211 Ill. 392. Huntine, Trapping anp FisHine Liczenszes 111 A landowner’s right to take fish or game on his own land which inheres in him by reason of his ownership of the soil is a property right, subject, however, to the State’s ownership of and title to wild animals and its regulations for the preservation and protection of fish and game. State v. Mallory, 67 L. R. A. 773. The title to wild game is in the State as against the individual irrespective of the ownership of the land on which it may be found and the State may prohibit or regulate the killmg of game and impose greater restric- tions upon non-residents than upon residents. Cummings v. People, 211 Ill. 393. In some of the states licenses can be issued to minors under the age of sixteen years who are not less than fourteen years and in some cases twelve years of age upon the written consent of parent or guardian. The laws of all the states have grown severe with respect to aliens. The New Jersey statute prohibits any unnaturalized foreign born person unless he owns real estate of the value of at least two thousand dollars above incum- branees, not only from hunting, but also from owning or possessing a shot gun or rifle of any make and provides for the confiscation of the guns. The Pennsylvania statute is even more drastic and apparently makes no exception in favor of alien owners of real estate. The Pennsylvania statute was tested in the case of Commonwealth v. Papsone, 231 Pa. Supreme Court 45, 232 U.S. 138. The courts upheld the statute as constitutional and in the course of the decision, it was stated: Nor does the provision of the fourteenth amendment which declares, “No state shall make or enforce any law which shall abridge the 12 Game Law GuipE privileges or immunities of citizens of the United States,” affect this defendant in any way, as he is not a citizen. An alien while domiciled with us, is entitled to the protection of the laws and owes in return for this protection a temporary and local allegiance which continues during the period of his residence; 2 Am. & Eng. Ene. of Law 64. We legislate primarily for our own citizens in granting the special privileges that are independent of our inherent rights. The alien is prohibited from doing many things to which a native born or a naturalized citizen is entitled. He cannot exercise any political rights whatever, nor be compelled to fill any elective or appointive office. He is not qualified to serve as a juror; or to receive a license to sell hquor, hawk or peddle. A non-resident is not entitled to the benefit of our $300 exemption law. Lach state has its own exemption laws for the benefit of its own citizens. The privilege to hunt game has been limited to our own citizens, and as was said in Presser v. Illinois, 116 U. 8. 252; “If the plaintiff in error has any such privilege he must be able to point to the provision of the constitution or statute of the United States by which it is con- ferred. For as was said by this Court in U. S. v. Cruikshank, 92 U. S. 542, the government of the United States, although it is within the scope of its powers, supreme and beyond the states, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or so secured are left to the exclusive protection of the state.” Whatever one may claim as a right, under the constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the constitution and laws of the United States entitles him to exemption from, he may claim as an exemption in respect to, and such a right or privilege is abridged when- ever the state law interferes with any legitimate operation of Federal authority which concerns his interests, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the Federal Constitution or law. But the United States can neither grant nor secure to its citizens, rights or privileges, which are not expressly, or by reasonable implication, placed under its juris- diction, and all not so placed are left to the exclusive protection of the states. This defendant is not a citizen of the United States, nor of this Commonwealth. While he is within our jurisdiction he is entitled to the equal protection of the laws, subject to the limitations of the class of which he is a member. Citizens of other states have no property right which entitles them to fish against the will of the state, a fortiori, the alien from whatever country he may come, has none whatever in the waters, or the fisheries Huntine, Trappinc anp Fisuine Licenses 113 of the state. Like other privileges he enjoys as an alien, by permission — of the state, he can only enjoy as much as the state vouchsafes to yield to him as a special privilege. To him it is not a property right, but is in the strictest sense a privilege or favor. It was even held in the case of Commonwealth v. Maloof, 49 Pa. Superior Court 581, that the possession of a shotgun or rifle by an alien operating a shooting gallery was a violation of the act. There is no express provision of the Conservation Law which prohibits the issuance of a license to minors under the age of sixteen. While the Conservation Law contemplates the issuance of a license to an alien, there is grave question as to whether any alien can be entitled to be in possession of any gun afield. The question of the use of guns by minors and aliens is covered by Sections 1896 and 1897 of the Penal Law, constituting what has been popularly termed The Sulli- van Law, and the text of those sections is set forth here in full as being of both essence and interest in connection with the substance of this work: 1896. Making and disposing of dangerous weapons. A person who manufactures, or causes to be manufactured, or sells or keeps for sale, or offers or gives, or disposes of any instrument or weapon of the kind usually known as a slungshot, billy, sandelub or metal knuckles, to any person or a person who offers, sells, loans, leases, or gives any gun, revolver, pistol or other firearm or any air gun, spring gun or other instrument or weapon in which the propelling force is a spring or air or any instrument or weapon commonly known as a toy pistol or in or upon which any loaded or blank cartridges are used, or may be used, or any loaded or blank cartridges or ammunition therefor to any person under the age of sixteen years is guilty of a misdemeanor. 1897. A person who attempts to use against another, or who earries, or possesses, any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandelub, sandbag, metal knuckles, bludgeon, or who, with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stilletto, or any other dangerous or deadly instrument or weapon is 8 114 Game Law GuIpDE guilty of a misdemeanor, and if he has been previously convicted of any crime he is guilty of a felony. A person who carries or possesses a bomb or bombshell, or who, with intent to use the same unlawfully against the person or property of another carries or possesses any explosive substance is guilty of a felony. Any person under the age of sixteen years, who shall have, carry, or have in his possession, any of the articles named or described in the last section, which is forbidden therein to offer, sell, loan, lease or give to him, shall be guilty of juvenile delinquency. Any person over the age of sixteen years, who shall have in his possession in any city, village or town of this state, any pistol, revolver or other firearm of a size which may be concealed upon the person, without a written license therefor, issued to him as hereinafter pre- scribed, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall be guilty of a felony. Any person over the age of sixteen years, who shall have or carry concealed upon his person in any city, village or town of this state, any pistol, revolver, or other firearm without a written license therefor issued as hereinafter prescribed and licensing such possession and concealment, shall be guilty of a misdemeanor, and if he has been pre- viously convicted of any crime he shall be guilty of a felony. Any person not a citizen of the United States, unless authorized by license issued as hereinafter prescribed, who shall have or carry fire- arms, or any dangerous or deadly weapons in any place at any time, shall be guilty of a misdemeanor, and if he has been previously con- victed of any crime he shall be guilty of a felony. It shall be the duty of any magistrate in this state to whom an appli- cation therefor is made by a commissioner of correction of a city or by any warden, superintendent or head keeper of any state prison, peni- tentiary, workhouse, county jail or other institution for the detention of persons convicted of or accused of erime, or offenses, or held as witnesses in criminal cases, to issue to each of such persons as may be designated in such applications, and who is in the regular employ in such institution of the state, or of any county, city, town or village therein, a license authorizing such person to have and carry concealed a pistol or revolver while such person remains in the said employ. It shall be the duty of any magistrate in this state, upon application therefor, by any householder, merchant, storekeeper or messenger of any banking institution or express company in the state, and provided such magistrate is satisfied of the good moral character of the applicant, and provided that no other good cause exists for the denial of such application, to issue to such applicant a license to have and possess Huntine, Trapprnc aNnp FusHine Licenses 115 a pistol or revolver, and authorizing him (a) if a householder, to have such weapon in his dwelling, and (b) if a merchant, or storekeeper, to have such weapon in his place of business, and (c) if a messenger of a banking institution or express company, to have and carry such weapon concealed while in the employ of such institution or express company. In addition, it shall be lawful for any magistrate, upon proof before him that the person applying therefor is of good moral character, and that proper cause exists for the issuance thereof, to issue to such person a license to have and earry concealed a pistol or revolver with- out regard to employment or place of possessing such weapon, provided, however, that no such license shall be issued to any alien, or to any person not a citizen of and usually resident in the state of New York, except by a judge or justice of a court of record in this state, who shall state in such license the particular reason for the issuance thereof, and the names of the persons certifying to the good moral character of the applicant. Any license issued in pursuance of the provisions of this section may be limited as to the date of expiration thereof and may be vacated and canceled at any time by the magistrate, judge or justice who issued the same or by any judge or justice of a court of record. . Any license issued in pursuance of this section and not otherwise limited as to place or time or possession of such weapon, shall be effective through- out the State of New York, notwithstanding the provisions of any local law or ordinance. This section shall not apply to the regular and ordinary transporta- tion of firearms as merchandise, nor to sheriffs, policemen, or to other duly appointed peace officers, nor to duly authorized military or civil organizations, when parading, nor to the members thereof when going to and from the place of meeting of their respective organizations. There are no fees therefor and the justice may issue the license regardless of the residence of the licensee. The license, it seems, need not be carried on the person. Report of Attorney-General, 1913, Vol. II, page 579. See section 169 on Powers of Game Protectors. See section 1897-a of the Penal Law referred to under section 177-1 chapter VIII. There appears to be nothing in these sections of the Penal Law which allows or provides for a license to, an alien to carry a gun afield, unless the license referred to in the ninth paragraph of Section 1897 issued by a judge of a court of record as to concealable weapons might be construed to cover non-concealable weapons. 116 GamE Law GuIpE The contention has been made that the Penal Law and Conservation Law should be so amended as to allow an alien upon the production of a license issued under the Penal Law and the presentation of his first naturaliza- tion papers, a special form of hunting license, but those most familiar with the alien’s ingrained lawlessness as to fish and game and weapons, urge that no alien be per- mitted to fish or hunt at all, regardless of possible rev- enue lost. The disposition of license fees is covered as follows: Subd. 4. The license fees above provided for shall be remitted by the city and town clerks on the first Tuesday of each month to the county clerk of the county, with duplicate schedules setting forth the name and residence of each licensee and the serial number of and the amount paid for each license issued. Such license fees, less three per centum thereof which the county clerk is hereby authorized to retain for his compensation, and the license fees received by the county clerk for issuing licenses from his office, less three per centum thereof for such compensation shall belong to the state and shall be remitted to the commission on the second Tuesday of each month with a duplicate of said schedule, | and the fees so received by the commission shall be remitted by the commission to the state treasurer as are fines and penalities. The contents of the license and the powers of the licensee under it are prescribed as follows: Subd. 5. Said license shall be issued in the name of the com- mission, and be sealed with the seal of the county, city or town in which the same is issued and be countersigned by the clerk issuing the same. Every license issued shall be signed by the licensee in ink on the face thereof. It shall entitle the person to whom issued to hunt, pursue and kill game animals, fowl and birds and trap fur bearing animals within the state at any time when or place where it shall be lawful to hunt, pursue, kill and take such game animals, fowl and birds in this state. See section 185, subdivision 1. The hunting license justifies no trespass upon private lands or waters. In order that persons afield and par- Huntine, Trapping anp Fisuine Licenses 117 ticularly violators and trespassers may be identified, it is provided: Subd. 6. No person to whom a license has been issued shall be entitled to take wild animals, fowl or birds, or trap fur bearing animals in this state unless at the time of such taking he shall have such license on his person, and shall exhibit the same for inspection to any protector or other officer or other person requesting to see the same. Such licensee shall also wear in a conspicuous place on his clothing a button to be furnished by the commission through the clerks issuing licenses. Buttons shall be uniform in size and at least two inches in diameter and shall bear a number correspond- ing to the number of the license delivered to the applicant and such other matter as may be determined by the commission. The failure of the licensee at all times while hunting, trapping or tak- ing wild animals, fowl or birds, to wear such button in a con- spicuous place on his clothing shall cause a forfeiture of his license. Such person shall surrender upon demand his license and button to any game protector or other person duly authorized by the commission to receive the same. No other or additional penalty than the forfeiture of his hunting or trapping license, as herein provided, shall be suffered by a licensee failing to wear such button. But such forfeiture shall not operate to prevent a person from procuring another license as provided in this section. The pro- visions of this section with respect to the issuance of and the wearing of a button shall take effect January first, nineteen hun- dred and seventeen. Failure of the licensee to sign, in ink, on the face of the license, it seems, technically renders him liable for the penalty. See section 182, chapter XVII, on Procedure. The license must be exhibited for inspection to any person whether protector, hunter, landowner or other- wise, upon request; and inspection means a reasonable opportunity to get from the license the number thereof, the name of the licensee and any other desired data. The loss of the license on the trip is technically no defense. Although hunting on the highway is prohibited by 118 GamE Law GuIpDE Section 222, that fact furnishes no reason for refusing to comply with the above subdivision if the acts of the person upon whom the demand is made, come within the definition of taking or hunting. By the Pennsylvania statute, the possession by any person upon the highway of a gun and the dead body of any bird or animal is presumptive evidence that such person is hunting. The great difficulty is to determine by any definition or rule when a person is taking or hunting animals so as to require him to have upon his person and to exhibit his hunting license. He cannot be said to be hunting when the hunt is all done or before it has commenced. He may be merely target or trap shooting afield or shooting obnoxious domestic animals. The mere possession in hand of a gun or game, or both, would not necessarily constitute taking or hunting in the sense meant, for such possession might be under such circumstances as would render it absurd to claim that the person was hunting as for instance on trains or trolleys, in vehicles or on the streets of a city. Strange to say, it was even held in the case of Corn- well v. Fraternal Accident Association, 6 North Dakota 201, that a person who had started to hunt certain game with a loaded gun at a season of the year when it was unlawful to hunt such game had not by such act com- mitted the offense of attempting to kill such game. But this case arose on the question of whether the plaintiff had by the commission of a violation of the law forfeited his rights under an insurance policy. It might reasonably be claimed that where a person is afield in a locality where game is likely to be found and equipped for taking it, he is presumptively hunting; and substantially to such effect are the statutes of West Virginia, Montana and Saskatchewan. Regardless of technicalities it is advisable to carry the license at all tumes and under all circumstances. Huntine, Trapping anp FisHine Licenses 119 However, at best, it must be admitted that whether a person is taking or hunting wild birds or quadrupeds or animals is a question of fact under all the circumstances surrounding the particular transaction. ; See People v. Jacobs, 165 A. D. 721. Subd. 7. Such license shall be void after the thirty-first day of December next succeeding its issuance. As a concession to actual bona fide occupants of farm lands, an exception and exemption in their favor are made as follows: ; Subd. 8. Provided that the owner or owners of farm land and their immediate family or families occupying and cultivating the same, or the lessee or lessees thereof and their immediate family or families who are actually occupying and cultivating the same, shall have the right to hunt, kill and take game or trap fur bearing animals on the farm land of which he or they are the bona fide owners or lessees, during the season when it is lawful to kill and take the same, without procuring such resident license; and further provided that minors under the age of sixteen years shall not be required to take out a license to trap fur bearing animals. Section 380, subdivision 28, defines immediate family as follows: “Tmmediate family” as used in subdivision eight of section one hundred and eighty-five of this chapter includes all persons who are related by blood, marriage or adoption and domiciled in the house of the owner or lessee. This definition excludes guests and employees. Lessees would appear to include those working farm lands on shares. This exemption appears to hold good as to citizens and aliens alike provided they are actual occupants. It seems that the exception does not apply to non- resident or non-occupant citizens. The exemption does not apply to owners of exclusive 120 GAME Law GuIpE hunting rights apart from ownership of the farm land itself, While the Legislature could remove this exemption altogether if it saw fit to do so and while licenses may be exacted from non-resident or non-oceupant citizens even when hunting on lands which they own, it has been held in an Arkansas case that the Legislature of a state can- not prohibit the non-resident citizen owner of lands from hunting on them because of his non-residence alone. The case of State v. Mallory, 67 L. R. A. 773, arose upon these facts: Mallory, a native of Virginia and a bona fide resident and citizen of Tennessee, owned a large tract of land in Arkansas, on which there was good hunting and fishing. The general assembly of Arkansas had passed a statute reading as follows: ‘‘ It shall be unlawful for any person who is a non-resident of the state of Arkansas to shoot, hunt, fish or trap at any sea- son of the year.’’ The statute was successfully attacked on the ground that it violated the Fourteenth Amendment of the Con- stitution of the United States: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws.” After referring to the principles of and the authorities on the quasi property rights in and to fish and game which vest in the owner of the land on which they are found subject to state regulation, the opinion coneurred in by the majority of the judges concludes: | “We therefore conceive it to be settled by authority and by long recognition in the law that the owner of land has a right to take fish and wild game upon his own land, which inheres in him by reason of his ownership of the soil. It is not, however, an unqualified and absolute right, but is bounded by these limitations: That it must Huntinc, Trapping anp Fisuine Licenses 121 always yield to the state’s ownership and title, held for the purposes of regulation and preservation for the public use. These two owner- ships or rights—that is to say, the general ownership of the state for one purpose, and the qualified or limited ownership of the individual, growing out of his ownership of the soil—are entirely consistent with each other, and in no wise conflict. The transitory nature of the property renders the benefits so diffusive that all may join in the enjoyment thereof, and for that reason the sovereign holds as the representative of the public so as to regulate and protect the common use. Still the right of the landowner to hunt and fish on his own lands is to that extent a special property right, though subordi- nate to the other. “The cases of Geer v. Connecticut, 161 U. S. 519, 40 L. ed. 793, 16 Sup. Ct. Rep. 600, and Organ v. State, 56 Ark. 267, 19 8. W. 840, are pressed upon our attention with great force and earnestness by the learned counsel for the state, as conclusive of the case at bar. In both those cases the general doctrine of state ownership of wild game and fish is declared, but the language of the courts in those cases, when limited to the question under consideration, as must always be done when testing the soundness of a declared doctrine, is undoubtedly correct, and in no degree inconsistent with the views herein expressed. The eases were almost identical upon the facts, being criminal prosecu- tions for the unlawful exportation of game out of the state in violation of a statute prohibiting the same. We see no reason whatever in the opinion we now express for receding from the law declared by this court in Organ v. State. On the contrary, we adhere to it. The fullest latitude of power in the state to regulate and preserve the game for the common enjoyment is conceded, and no private property right therein which we hold to exist can retard or obstruct the exercise of that undoubted power. But we have another and altogether different question to deal with in this case— whether finding that landowners have a right to hunt and fish upon their own lands, which is a property right, they are entitled to equal protection in the enjoyment of that right with other landowners, or whether it can be destroyed by a law passed under the guise of a police regulation to preserve the fish and game, and the right of enjoyment prohibited for the sole reason that they are nonresidents of the state. It is not the fact that appellee is excluded from enjoyment of the common right of the citizen to fish and hunt because of his nonresidence that he may complain, but of the exclusion by reason of his nonresidence from such special right which he should enjoy in common with other landowners. Does the curtail- ment of this right fall within the prohibition of the 14th Amendment? A complete answer to the inquiry is made in the affirmative when the 122 Game Law GuIDE conclusion is reached that the right denied is a property right. Non- resident owners may be called upon to share the public burdens, and property rights in some instances must yield to the public demands; but the burden must rest equally upon all, and no discrimination in that respect be made against the nonresidents as such. Eldridge v. Treze- vant, 160 U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345. In so far as the statute under consideration prevents the same enjoyment by appellee of the property right afforded the more fortunate resident landowner, it is a denial of “ equal protection of the law,” within the meaning of the constitutional guaranty, and cannot be enforced, and the taking away of this right because of his nonresidence is without due process of law.” See the important and interesting references to State v. Mallory in chapter XVIII. Whether the license exacted from a non-resident could be made so exorbitant as to be prohibitive is a very pointed query in view of the fact that this case has never been interpreted as preventing the requirement of a license from a non-resident owner before hunting on his own land. Strict prohibition against alterations or transfer of the license is made: Subd. 9. Any person who shall at any time alter or change in any material manner or loan or transfer to another, any license issued as aforesaid, shall be deemed guilty of forgery in the second degree, and, on conviction thereof, shall be punishable as provided in case of forgery in the second degree. Forgery in the second degree is punishable by not to exceed ten years’ imprisonment. See section 888 of the Penal Law. See chapter XVII on Procedure. Special exceptions to general procedure are made as to the prosecution of both civil and criminal actions with respect to violations of the law as to licenses: Subd. 10. All prosecutions for a violation of the provisions of this article relating to licenses may be brought by any person upon order of the commission in the name of the people of the state of New York against any person or persons violating any of the Huntine, Trapping anp Fisuine Licenses 123 provisions of this article, so far as it relates to licenses, before any court of competent jurisdiction; and it is hereby made the duty of all district altorneys to see that the provisions of this section are enforced in their respective counties, and said district attorneys shall prosecute all offenders on receiving information of the viola- tion of any of the provisions of this section; and it is hereby made the duty of all sheriffs, deputy sheriffs, constables and police officers to inform against and prosecute all persons who, there is reason- able cause to believe, are guilty of violating any of the provisions of this section. Nothing herein shall prevent the commission from prosecuting persons for violation of this section. There seems to be no distinction made between eivil and criminal actions. Subd. 11. All moneys recovered in any penal action under this chapter, in so far as it relates to licenses, shall be remitted by the person or court recovering the same to the commission; one-half of the amount recovered in any penal action under this section, in so far as it relates to licenses, after all disbursements and expenses in relation to the same, including attorney’s fees, shall have been paid, shall be paid to the person filing the complaint in such action by the state treasurer on approval of the com- mission, wrless such person is a regular game protector. Subd. 12. All bills for costs, disbursements and attorney’s fees in any action or proceeding under this article relating to licenses shall be duly verified, presented to the commission, audited by said commission and paid on its approval by the state treasurer to the person entitled to the same. The privileges extended by these provisions can be availed of by any person including those upon whom duties are laid except a regular game protector. The provisions appear to apply only to actions brought upon order of the Commission. See chapter XVII, on Procedure. Other provisions as to licenses are as follows: Subd. 13. The form of the license shall be determined and the license blank prepared by the commission, and by it furnished through the county clerks of the several counties of the state to the city and town clerks. 124 Game Law GuIDE Subd. 14. Clerk’s reports. On the thirty-first day of December of each year the city and town clerks shall detach the stubs of licenses issued and forward the same securely attached to a report of the number issued and the amount of license money received to the county clerk of the county, whose duty it shall be to see that proper returns are made to him by all city and town clerks in his county, and to return to the commission all such stubs and reports with a final report recapitulating and tabulating the total number of licenses of all kinds issued in his county in the ealendar year. Subd. 15. The county clerk shall be reimbursed by the state for postage and expressage used in distributing licenses to city and town clerks and for his monthly reports required to be made to the commission; his bills therefor shall be presented, audited and paid as herein provided for other payments. The only present provision as to licenses for angling is that contained in Section 188 requiring a license from non-residents fishing in fresh boundary waters: Exeept as hereinafter provided, no person except a bona fide resident of this state for at least thirty days immediately prior to such taking, shall take any fish by angling in any of the fresh waters under the jurisdiction of the state of New York forming a part of the state boundary or through which the state boundary runs or shall engage in fishing in such waters without first having procured a license so to do. Said license shall be procured in the manner provided in section one hundred and eighty-five hereof. The applicant shall pay to the clerk the sum of two dollars as a license fee therefor, together with the sum of fifty cents as a fee to the clerk; provided, however, that a nonresident person under the age of sixteen years, or a woman, may take fish, by angling, without obtaining a fishing license. The provisions of section one hundred and eighty-five in so far as the same are applicable to licenses shall apply to all licenses issued under this section. If a resident of this state may lawfully fish in such part of said bound- ary waters as are not within the jurisdiction of the state of New York without being required to obtain a fishing license from the state or country having jurisdiction over the said waters, then a resident of such state or country may take fish in such part of said boundary waters as are within the jurisdiction of the state of New York without obtaining the nonresident fishing license pro- vided for herein. Huntinc, Trapprine anp Fisuine Licensgzs 129 A majority of the states and the Canadian provinces have provided for separate or combination hunting and angling licenses, the fees therefor going immediately to a game and fish protection fund. As a rule, minors up to a certain age, and all women, are exempted from the requirements as to the fishing license. CHAPTER VI THE BACKBONE OF THE LAW Section 176 On behalf of the State and its so-called ownership of wild animals and in the exercise of the police power directed toward the protection of that ownership, the Legislature has prescribed a blunderbuss, omnibus, blanket prohibition against the taking, etc. of quadrupeds and birds and fish protected by law and the taking of fish whether protected by law or not except migratory food fish of the sea. See section 177, subdivisions 1, 2. This general prohibition is here and there reinforced by particular and specific prohibitions. It is the intent of the law that no quadruped or bird or fish protected by law shall be taken, ete., and no fish, except migratory food fish of the sea, whether protected by law or not can be taken, without violating the law unless a specific permission as to the particular animal wm question and the particular manner of taking, ete., can be found in some particular provision of the statute. See section 177, subdivisions 1, 2. In other words for any act such as taking, possessing, buying, selling or transporting with reference to quad- rupeds or birds or fish protected by law and taking fish whether protected by law or not, excepting migratory food fish of the sea, the person committing such act can be prosecuted under Section 176 as well as under a specific prohibitive section and his justification must be, [126] Tue BackKBoNE OF THE LAw be that by some permissive provision of the law the act in question is made legal. This fundamental feature of the law upon which too much stress can not be laid was overlooked in the case of People v. Keenan, 80 M. 539, where the court in holding that blue pike could be taken with set lines, lost sight of the force of Section 176. See section 254. This principle was properly grasped and applied in the ease of People v. Chamberlain, 92 M. 720, where it was held that the offense of taking rabbits with a ferret in violation of the specific prohibition contained in Section 196 was properly charged and prosecuted as a violation of Section 176. See also People v. Bisbee, 90 M. 601, referred to under section 178. The general prohibition contained in Section 176 is as follows: No person shall at any time of the year, pursue, take, wound or kill, in any manner, number or quantity, any fish, quadrupeds or birds protected by law, or buy, sell, offer, or expose the same, or any part thereof for sale, transport or have the same in possession except as permitted by this article. (Nets except in the marine district, tip-ups, set and trap-lines, spears, grappling hooks, naked hooks, snatch hooks, eel weirs and eel pots shall not be used to take fish except as specifically permitted in this article.) Any person aiding in any manner in such prohibited acts shall be deemed to have violated this section. The general prohibition as far as fish not protected by law are concerned does not apply to sales. See sections 158, 159. See section 185, as to hunting licenses. See section 177, subdivisions 1, 2. 128 GAME Law GuIDE This prohibition applies to the State authorities as well as all other persons. See chapter III, on the powers of the commission as to fish and game. The provisions of the Conservation Law in all of these respects have been held to govern Indians hunting or fishing upon reservation lands regardless of treaty rights. People ex rel. Kennedy v. Becker, 215 N. Y. 42. Ward vy. Race Horse, 163 U. S. 504. ‘‘ Taking ’’ and ‘‘ possession’’ are not necessarily Synonymous or convertible terms. For instance, a hunt- ing license is required for the taking of animals with a gun but no hunting license is required for their possession after taking. Taking is defined by Section 380, subdivision 26 as follows: “Taking” includes pursuing, shooting, hunting, killing, cap- turing, trapping, snaring and netting fish and game and all lesser acts such as disturbing, harrying or worrying, or placing, setting, drawing, or using any net or other device commonly used to take fish and game, whether they result in taking or not; and includes every attempt to take and every act of assistance to any other person in taking or attempting to take fish or game. A person who counsels, aids or assists in a violation’ of any of the provi- sions of this article, or knowingly shares in any of the proceeds of said violation by receiving or possessing either fish, birds or game shall be deemed to have incurred the penalties provided in this article against the person guilty of such violation. Whenever taking is allowed by law, reference is had to taking by lawful means and in lawful manner. The provision covers eggs of birds and spawn of fish. In view of this provision as to lesser acts a person in whose company a violation is committed to escape all question of liability should, it seems, immediately inform Tur BackKBONE OF THE LAW 129 a game protector or the Commission and support the prosecution. Compare People v. White, 124 A. D. 79. Assuming that a person has complied with the law as to hunting and fishing license, the interpretation of this section next involves a consideration of open and close season. Close season is defined by Section 380, subdivision 5: “Close season” is the time during which fish, fowl, birds and quadrupeds cannot be taken. Open season is defined by Section 380, subdivision 4: “Open season” is the time during which fish, fowl, birds and quadrupeds may be taken. If in accordance with the provisions of this article the open season commences or ends on Sunday, it shall be deemed to commence or end as the case may be on the Saturday immediately preceding such Sunday. This reference to Sunday is doubtless in deference to Section 2145 of the Penal Law: “All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises or shows upon the first day of the week, and all noise disturbing the peace of the day are prohibited.” Rifle practice by the National Guard, if in the discre- tion of its officers necessary, has been held to be no violation of this section. Attorney-General’s Report, 1912, vol. II, page 341. A violation of this section is Sabbath breaking, pun- ishable as provided in Section 2142: Sabbath breaking is a misdemeanor, punishable by a fine not less than five dollars and not more than ten dollars, or by imprisonment in a county jail not exceeding five days, or by both, but for a second or other offense, where the party shall have been previously convicted, it shall be punishable by a fine not less than ten dollars and not more g 130 Game Law GuIDE than twenty dollars, and by imprisonment in a county jail not less than five nor more than twenty days. These provisions of the Penal Law relative to fishing were interpreted by the Court of Appeals in the case of People v. Moses, 140 N. Y. 214. The defendant was fishing on Sunday in a private lake by permission of the owner; it did not appear that he created any disorder or that he disturbed the peace or that his acts were actually witnessed by any one except the complainant, but he was convicted. The Court of Appeals stood three for affirmance and three for reversal and Judge Maynard decided the case on the following concurring statement: “Maynard, J., concurs in the result, upon the ground that there is sufficient evidence in the record to support a finding by the trial court that the act complained of was committed under such circumstance as to constitute a serious interruption of the repose and religious liberty of the community.” Whatever arguments may be raised upon the interpre- tation of the Penal Law in the light of the decision in People v. Moses; regardless of written or unwritten law upon the question; notwithstanding the differences of opinion as to whether Sunday hunting or fishing is malum prohibitum (wrong only because prohibited) or malum in se (involving moral turpitude) ; over and above all reliance on the Gospel of St. Mark, Chapter 2, Verses 22-28, it still remains to be considered by those who are eareless on this question that each Sunday could be absolutely excluded from the open season by the express terms of the Conservation Law or the prohibition could be made a part of the Game Law, as is the case in many of the states and Canadian provinces and formerly was in this State and under such circumstances it would be the duty of game protectors, as distinguished from their privilege, to enforce the prohibition. THe BacKBONE oF THE LAW 131 The consideration of close season requires attention to such matters as fish and game closes, Section 153, fish- ways, Section 251, additional protective orders, Section 152, and the closing of the forest preserve in times of drought, Section 54, subdivision 1. It involves Section 1906 of the Penal Law and the ordi- nanees of cities and villages, prohibiting the discharge of firearms in public places. Section 1425, subdivision 10 of the Penal Law makes it .a misdemeanor where any person: “Kills, wounds or traps any bird, deer, squirrel, rabbit or other animal within the limits of any cemetery or public burying ground, or of any public park or pleasure ground, or removes the young of any such animal, or the eggs of any such bird, from any cemetery, park or pleasure ground, or exposes for sale, or knowingly buys or sells any bird or animal so killed or taken.” At this point are also properly referred to the pro- visions of Section 222: Game shall not be taken on the lands purchased or condemned by any municipality within the state for the purpose of supply- ing any municipality with water and protecting the same from pollution and contamination, or on any public highway, except public highways other than state or county highways within the forest preserve counties. The indirect manner in which Part XI of the Conserva- tion Law relative to private parks, posted lands and game refuges affects this question is worth a reference and a reminder in this connection. The provisions of Section 176 as to the sale of dead birds are bulwarked by Section 180: The dead bodies of birds belonging to all species or sub-species, native to this state, protected by law or belonging to any family, any species or sub-species of which is native to this state and pro- tected by law shall not be sold, offered for sale, or possessed for sale for food purposes within this state whether taken within or without this state, except as provided by sections three hundred and seventy-two and three hundred and seventy-three. Compare sections 219 and 381. 132 Game Law GuIDE All questions of sale of birds alive or dead are also covered by Section 176. Possession in certain cases is made presumptive evi- dence of a violation of Section 176 by the terms of Section 181: Possession of quadrupeds, birds or fish or a part thereof, during the time when the taking of the same in this state is prohibited, or when the possession of the same after the close of the open season is not permitted, shall be presumptive evidence that the same was unlawfully taken by the possessor. ; Quadrupeds, birds or fish, lawfully taken and possessed in one part of the state, may be transported by the taker as provided by section one hundred and seventy-eight of this chapter and may be possessed by the taker in any part of the state for the same period of time during which they may be lawfully possessed at the place where taken. ( See chapter XIV, on transportation. See the special provisions as to Long Island and any other localities. For matters of open season, limit, possession and sale, see the particular sections dealing with particular quad- rupeds, birds and fish. Alleged gifts of fish or game where in fact a valuable consideration or quid pro quo passes, no matter by what subterfuge, are in violation of the statute. Hunting or fishing for non-salable quadrupeds, birds or fish, for hare where the quarry is turned over to the employer is in violation of the law and is expressly made so by the statutes of several of the states The statute of Ontario provides along such lines as follows: “No person shall for hire, gain or reward or hope thereof hunt, kill or shoot any game, or employ, hire or for valuable consideration induce any other person so to do; but this shall not apply to the bona fide employment of any person as guide to accompany a person lawfully hunting or shooting.” There is a similar provision in Maine as to fishing. Tuer BacKBONE OF THE Law 133 For the definition of quadrupeds and birds protected by law, see the discussion under Section 177, subdivision 1, and in Chapter VII, on insectivorous birds. For the definitions concerning fish in connection with which the clause in parenthesis in Section 176 must be read, see Section 177, subdivision 2. The questions of transportation, importation and exportation of fish and game are treated in Chapter XIV. As to all the foregoing propositions, the application of Section 176 and Article V generally as stated in Sec- tion 381 must be borne in mind: Tn all cases where possession, purchase or sale of fish or game or of the flesh of any quadruped, bird or fish is unlawful, possession, purchase or sale of the same species of fish or game or of the flesh of the same species of quadruped, bird or fish coming from or taken without the state, shall be deemed to be and is, except as otherwise expressly provided herein, unlawful. This section does not however apply to transportation. There seems to be no prohibition against the baiting of traps used to take fur-bearing animals. Where the taking in any manner is allowed it would not be construed to permit a form of taking which would unnecessarily endanger other animals which could not be taken in that fashion. Poisoning animals would ordinarily be prohibited by Section 190 of the Penal Law. Commission is synonymous with Conservation Com- Mission. Gender and number are to be disregarded in constru- ing the law whenever necessary to earry out its spirit. Person includes a co-partnership, jointstock company or corporation. See sections 380-1, 2, 3. 134 GamE Law GuIDE A claim of agency is ordinarily no defense. See Rule 6, sections 196, 201. The Minnesota act provides: The word “ person” shall be deemed to include partnerships, asso- ciations and corporations, and no violation of any provisions of this chapter shall be exeused for the reason that the prohibited act was done as the agent or employe of another, nor that it was committed by or {hrough an agent or employe of the person charged. CHAPTER VII SONG, PLUME AND INSECTIVOROUS BIRDS Wild birds protected by law as distinguished from birds included in game protected by law are dealt with in Section 219: Wild birds other than the English sparrow, starling, crow, hawk, crow-blackbird, snow-owl, great horned owl, great blue heron, bittern and kingfisher shall not be taken or possessed at any time, dead or alive, except under the authority of a certificate issued under this article. No part of the plumage, skin or body of any bird protected by this section or of any birds coming from without the state, whether belonging to the same or a different species from that native to the state of New York, provided such birds belong to the same family as those protected by this article, shall be sold or had in possession for sale. The provision of this section shall not apply to game birds for which an open season is provided in this article, or birds or parts thereof collected or possessed in accordance with the provisions of section one hundred and jifty-nine. See sections 158, 159, 180 and 181. See section 210, as to game birds. See chapter III, on Federal Laws and Regulations, as to migratory insectivorous birds. Some of the birds outlawed by this section might be deemed to come within the protection of the federal regulations on the ground that they are perching birds which feed entirely or chiefly wpon insects. The crow-blackbird is one instance of this possibility. The other kinds of grackle seem to be protected by both Section 219 and the federal regulations. While the redwing blackbird is not protected fully by [135] 136 Game Law GuIDE the federal regulations (See regulation 3), it is abso- lutely protected by Section 219. There is great variety among the statutes of the several states as to these outlawed birds, but those mentioned by Section 219 seem to have met with unanimous and uni- versal condemnation. The Oregon statute provides that crippled or helpless birds or animals may be killed by any person or may be captured and retained as pets where it can be shown that the taking or killing was for humane purposes or for the purpose of saving the life thereof, provided the authorities are immediately notified. What birds are of the same family or species is a ques- tion for ornithologists. Report of Attorney-General, 1910, page 390. See section 381. No wild birds not legally possessed prior to the enact- ment of the statute (1908), can be kept alive in captivity, except (1) the outlawed birds, (2) exotic or foreign birds not of the same family or species as native birds and (3) such as are kept by virtue of Section 159. See section 175 and chapter XVIII, on Property Rights in Wild Animals. See People v. Cohen, 91 A. D. 89. See People v. Bootman, 40 M. 27. See People v. Fishbough, 134 N. Y. 393. The possession and sale of live canaries and parrots are expressly allowed by the Missouri statute. It has been held that a golden eagle could not be kept in captivity. Report of Attorney-General, 1902, page 179. Plumage is defined by Section 380, subdivision 22, as follows: “Plumage” includes any part of the feathers, head, wings or tail of any bird, and wherever the word occurs in this article ref- Sone, PLuM& anp INsEcTIvorous Brirps 137 erence is had to plumage of birds coming from without the state as well as to that obtained within the state, but it shall not be con- strued to apply to the feathers of birds of paradise, ostriches, domestic fowl or domestic pigeons. See Tariff Act, chapter III. Many of the states require taxidermists to procure licenses and subject that business to rigid inspection and regulation. Section 220 further provides: Nests of wild birds other than the English sparrow, starling, crow, hawk, crow-blackbird, snow-owl, great horned owl and king- fisher shall not be robbed or wilfully destroyed except when neces- sary to protect buildings or prevent their defacement or when taken under the authority of the commission. See section 176. See section 1425 of the Penal Law, subdivision 10. This section.applies to the nests of both game and non- game birds. Note that this section does not except the nests of the great blue heron and bittern. See sections 158 and 159. Section 221 declares: No wild bird, or bird for which a close season is provided, shall be trapped, netted or snared, or, if so taken, possessed. No net, trap or snare for taking pheasants, grouse or quail, shall be set, placed or used where such birds can be taken. Any such net, trap or snare is declared to be a public nuisance, and may be summarily abated and destroyed by any person, and it shall be the duty of every protector to seize and destroy any such device. This section applies to both game and non-game birds. See section 176. Antwerp or homing pigeons while not strictly either game or non-game birds are protected by Section 218: No person shall take or interfere with any Antwerp or homing pigeon if it have the name of its owner stamped upon its wing 138 Game Law GuIDE or tail, or wear a ring or seamless leg band with its registered number stamped thereon, or have any other distinguishing mark; nor shall any person remove any such distinguishing mark from any such pigeon. Chapter 107 of the Laws of 1875, which allowed the shooting of pigeons from trap provided that such pigeons after being shot, if still alive, should be immediately killed, was repealed by Chapter 61 of the Laws of 1902. Such shooting was held not to be cruelty to animals in Commonwealth v. Lewis, 11 L. R. A. 522, but the con- trary was held in Walters v. People, 33 L. R. A. 836, and Paine v. Bergh, 1 City Courts Reports 160. See Ingham on Animals, 537-538. The shooting from trap of the birds outlawed by Sec- tion 219 would doubtless be held to be cruelty to animals. See Penal Law, sections 180-185. Such shooting of such birds is expressly prohibited by the Iowa law. CHAPTER VIII THE TAKING OF GAME PROTECTED BY LAW SrotTion 177, Suppiviston 1 In reinforcement of Section 176 is Section 177, sub- division 1, with both its prohibitive and permissive features: Game protected by law shall only be taken in the day time after sunrise and before sunset with a gun fired at arm’s length, without rest, unless otherwise specifically permitted by this article. A person may take birds and quadrupeds, during the open. season therefor, with the aid of a dog, unless specifically prohibited by this article. Any duly organized association for the protection of game may run field trials for dogs at any time upon obtaining written permission from the Conservation Commission. See section 185, as to hunting licenses. The different kinds of ‘‘ game ’’ are defined by Sec- tion 380, subdivisions 7, 9, 10 and 8: “Game” includes wild game, game protected by law, domestic game and imported game. “ Domestic game” includes quadrupeds and birds mentioned in section three hundred and seventy two. (See section 372.) _ “Imported game” includes quadrupeds and birds mentioned in section three hundred and seventy-three. (See section 373.) “Wild game” and “ game protected by law” include all game birds as defined and mentioned in section two hundred and ten, and all quadrupeds for which a close season is provided. See Section 210 and particular sections on quadrupeds. Section 177, subdivision 1, has to do only with wild game or game protected by law. [139] 140 Game Law GulIpE In Klieforth v. State, 88 Wisconsin 163, where the statute prohibited shooting in the night-time, it was held that it was day while there was day light enough to dis- cern a person’s face, but this is not so under the Conser- vation Law nor is the test whether or not the flash of a gun can be seen. Night-time or might includes the time from sunset to sunrise. See section 220 of the Penal Law, and section 51 of the General Construction Law. Day-tume therefore excludes dawn before sunrise and dusk after sunset. It is all important to note that no game birds whether waterfowl, shore birds, or upland birds and no quadru- peds protected by law unless otherwise specifically per- mitted by some subsequent section, can be taken before sunrise or after sunset; they are moreover to be taken only after sunrise and before sunset. Actual sunrise and sunset often cannot be observed because of topographical or weather conditions, but the exact time of each can be easily determined by reference to any standard almanac and a reliable watch. Emphasis is placed upon the use only of a gun of the type mentioned. This is primarily to exclude the use of the old punt or swivel gun and spring guns and has not been construed absolutely to exclude the use of less de- structive, primitive hand-operated missile weapons such as a bow and arrow, a sling, sticks or stones or the use of hands. See the definition of guns under section 185. ‘Restrictions are made by some states as to the use of rifles particularly those of high power and it has been urged that the use of high power rifles for hunting, except in the territory where deer may lawfully be taken, be prohibited in this state. Tue Taxine of Game ProTEcTED BY LAw 141 Some of the states limit shot guns to those of ten gauge and a few allow the use of eight gauge guns. New Brunswick and Pennsylvania prohibit the use of automatic, but not the use of pump guns and rifles. In the case of Commonwealth v. McComb, 227 Pa. 377, the Pennsylvania statute was attacked and the court in holding the act constitutional stated: “Tt is but a decent respect due to the wisdom, integrity and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proven beyond all reasonable doubt. A reasonable doubt must be solved in favor of the legislative action and the act be sustained. The preservation of game and fish has always been treated as within the proper domain of the police power and laws, limiting the season when birds and wild animals may be killed, and had for sale, and pre- seribing the manner in which they may be taken, have been repeatedly upheld by the courts. The duty of preserving the fish and game of a State from extinction, by prohibiting exhaustive methods of taking it, or the use of destructive instruments as are likely to result in the exter- mination of the young as well as the mature, is as clear as its power to secure to its citizens, as far as possible, a supply of any other whole- some food. It is within the province of the Legislature to prescribe the methods or instruments that may be used in taking game or fish and it is not unconstitutional for the Legislature of the state to forbid the use of a specially made gun such as the automatic. Nor are the courts con- cerned about a technical though trifling interference with the pleasure of a hunter, or the property interest of a gunmaker in deciding a question of publie interest and welfare. The swivel gun referred to in the Act of 1897, is described as a small cannon, revolving to a swivel so that it may maim or kill a number of game at a single discharge, but it is always under the direction and control of the operator. The automatic gun mentioned in this act is described as ‘ one that is fired from the shoulder, and the recoil devel- oped by the exploded cartridge ejects the shell, cocks the hammer, and feeds in a fresh cartridge from a magazine into the chamber of the gun,’ so that all that is required to discharge it is to pull the trigger. It is not necessary to justify the wisdom of the legislative enactment ; the whole question has so frequently been the subject of discussion in the Legislature and Courts, and we must accept it as a result of their deliberations, that the automatic gun is not a proper weapon for the killing of game, within this Commonwealth. Nor are the Courts con- 142 Game Law Guipp cerned about a technical though trifling interference with the pleasure of a hunter, or the property interest of a gunmaker. Indeed, the source of the police power, as to game flows from the duty of the State to preserve for its people a valuable food supply.” In connection with the decision in this case however it would occur to the law-abiding sportsman that the type of gun used makes little difference provided its user does not exceed the limit. The New Jersey statute prohibits the use of a shot gun or rifle holding more than two cartridges at one time or which may be fired more than twice without reloading. The Virginia act prohibits the use of more than one gun by any person hunting waterfowl. The use of silencers is prohibited in some of the states. The Penal Law, Section 1897a, provides as to silencers: “A person who sells or keeps for sale, or offers, or gives or disposes of, or who shall have or carry concealed upon his person any instru- ment, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol, or other firearms shall be guilty of a felony, punishable by imprisonment for not more than five years. This section shall not apply to the regular and ordinary transporta- tion of any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol, or other firearms to be silent or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol, or other firearms, as merchandise, nor to sheriffs, police- men, or to other duly appointed peace officers, nor to duly authorized military or civil organizations, nor when parading, nor to the members thereof when going to and from the place of meeting of their respective organizations in practice.” See Section 192 prohibiting the use of dogs in hunting deer and Section 193 as to the use of dogs for other pur- poses in the Adirondack Park, Catskill Park and forests inhabited by deer. re Tar TAKING oF GAME PROTECTED BY LAw 143 There is nothing which allows the training of a dog afield during the close season except under the auspices of a duly organized association for the protection of game upon written permission from the Commission. A. provision similar to that made by many of the states fixing a certain period of from two to three weeks prior to the open season, for instance, from August 15th to September Ist, during which the owner of a dog or a licensed trainer without carrying a gun may take him afield for trial has been suggested. The use of dogs in hunting protected game is alto- gether prohibited by the statute of South Dakota. The Pennsylvania statute declares that any dog run- ning at large during the close season and disturbing game may be killed by any person and shall be killed by a protector, unless the dog wears a collar and tag identifying the owner, and even such a dog, if found at large after notice to the owner, may be killed. The only exception made is that dogs accompanied by or under the control of their masters may be trained upon game birds and game animals except elk and deer from Sep- tember 1st to March 1st, so long as no injury is inflicted upon such animals or birds. It has been contended that the known owner or custo- dian of any dog thus collared and tagged should expressly be made hable by the Conservation Law for the dog’s acts while running loose and disturbing game during the close season, as is the case in New Jersey and that ownerless dogs so running loose should be despatched however hard that may be upon the dog. Compare section 193. It is a fair question whether the owner of a dog is not now liable for the acts of such dog running loose par- ticularly after knowledge or notice and the safest course is to keep hunting dogs at home except when afield under 144 Game Law GuIpE the direction of responsible persons, in order to avoid any possibility of penalty. All that has been said of dogs is doubly true of cats. The statutes of some states put bounties on certain quadrupeds not protected by law. The wearing of masks by’ persons hunting is pro- hibited by the Ontario statute. Compare section 710 of the Penal Law. The only restrictive provision ag to the use of auto- mobiles is contained in Section 222-a: No person while in an automobile shall take game; nor by aid or use of any light or lights carried thereon or attached thereto. The Wisconsin statute includes motor cycles and all other vehicles. No quadrupeds protected by law can be taken with traps except as particular sections permit it specifically or under the clause ‘‘ in any manner.’’ Some of the states require trappers to visit their traps and to take any caught animals therefrom at least once in every twenty-four hours. The definitions of ‘‘ taking ’’ and ‘‘ hunting ’’ do not include the term ‘‘ attract ’’ and for that reason there appears to be no restriction against advance feeding or baiting of wild animals unless forbidden by specific prohibition as in the case of deer. See section 190, subd. 3. Such acts are however generally prohibited by the statutes of some of the states. CHAPTER IX GAME QUADRUPEDS AND FUR-BEARING ANIMALS Quadrupeds protected by law or those for which a close season is provided can be taken only as permitted by Section 177, subdivision 1, except where special provision is otherwise made. See sections 176, 185, 158 and 159. They may be taken from their usual haunts wherever found except where special prohibition is made, such as against taking deer while in the water or digging ani- mals from holes. Such quadrupeds as bears, wolves, foxes, woodchucks, weasels, red squirrels, chipmunks and the like being unprotected by law may be taken in any manner and under any circumstances not dangerous to other game. One of the first permissive sections as to quadrupeds is Section 200 on the propagation of fur-bearing animals: All species of fur-bearing animals protected by this chapter may be kept alive in captivity at all times for purposes of propa- gation and sale only, provided a license so to do shall first have been obtaimed from the commission. Every person obtaining such license shall pay the commission the sum of jive dollars as a license fee. No fur-bearing animals shall be thus kept which are taken wild during the close season for such fur-bearing animals, and such fur-bearing animals shall not be disposed of in any way during the close season. See section 159. Section 200 must be read with Rules 27-30 inclusive: 27. Each application for a license to engage in the business of propa- gation and sale of fur-bearing animals shall be accompanied by a satis- 10 [145] 146 GamME Law GuIDE factory bond to the people of the state in the penal sum of five hun- dred dollars, conditioned that the applicant will not keep such fur- bearing animals which are taken wild during the close season for such fur-bearing animals and will not dispose of such fur-bearing animals in any way during the close season; that he will observe all of the prohibitions, restrictions and conditions imposed by the terms of the license to be issued and the provisions of section 200 of the conserva- tion law. 28. If said bond is approved, and upon payment to it of a fee of five dollars, the commission shall issue to the applicant a license per- mitting him to keep fur-bearing animals under the provisions of said section for one year from a time therein stated, but no such license shall be issued to take effect during the close season. In order to authorize the continuance of such.licenses thereafter, the licensee shall renew said bond annually, and the fee for renewal shall be five dollars. 29. No person purchasing fur-bearing animals from such licensee shall have them in possession during the close season, even though purchased during the open season, unless such person shall have a license under section 200 of the conservation law. See section 159. 30. Any person violating the provisions of such bond, any rule or regulation of the commission or any of the provisions of section 200 of the Conservation Law shall forfeit his license and shall be denied the privilege of giving another bond. DEER Game Quadruped There is no statewide open season for deer. The open season limited as to territory is prescribed in Section 190: 1. Open season _ Only wild deer having horns not less than three inches in length may be taken from October first to November fifteenth, both inclu- sive, and in wholly inclosed deer parks and in the counties of Clinton, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Oneida, Oswego, Saratoga, Saint Lawrence, Warren and Washington. See section 192. Does and fawns are protected. The socalled “‘ buck law ’’ has been condemned because of its failure to pro- Game QuADRUPEDS AND Fur-Buartnc Antmats 147 tect the doe, many of them being shot by mistake and left to rot in the woods, or to replenish the supply of deer, leaving too many does in proportion to the number of bucks. On the other hand, it has been vigorously sup- ported because of its claimed increase of the number of deer and especially its tendeney to reduce the number of casualties from shooting during the deer season. These arguments and data in support of them are well set forth in the Saskatchewan Report of 1914, pages 15-19. 2. Limit A person may take two such wild deer in an open season, and the taker may transport, when accompanying the same, or possess for that purpose one carcass or part thereof at any one time, or he may transport the same as provided by section one hundred and seventy-eight. See section 178, chapter XIV. 3. Manner of taking Wild deer may be taken only on land. No jacklight or other artificial light, trap, saltlick, or other device to entrap or entice deer, shall be used, made or set, nor shall any deer be taken by aid or use thereof. Deer shall not be hunted, pursued or killed by any dog of either sex. . Deer upon the land may be shot from boats upon the - water. Each person engaged in hunting deer with a dog is separately hable for the penalty. People v. White, 124 A. D. 79. The above section contains the main exception to the permission granted by Section 177, subdivision 1, to take game with the aid of a dog. See section 193. § 191. Possession of wild deer or venison Wild deer or venison lawfully taken may be possessed from October first to November twentieth, both inclusive. A person may possess such deer or venison from November twenty-first to February first, both inclusive, provided a license so to do shall first be obtained from the commission. Every person obtaining such license shall pay to the commission a fee of one dollar. Deer 148 Game Law GuIpB or venison so possessed shall at all times be marked or tagged in such manner as the commission may provide. If possession of deer is obtained for transportation after October first and before mid- night of November sixteenth, it may lawfully remain in the pos- session of a common earrier the additional time necessary to deliver the same to its destination. Possession of deer or venison, or any part thereof, from November sixteenth to February first, both inclusive, shall be presumptive evidence that the same was unlawfully taken. See section 181 on presumptive evidence. See section 372 on breeding, sale and transportation of domesticated deer. | The philosophy of this section like others on posses- sion after open season is well set forth in the case of People v. Gerber, 92 Hun, 554. | Rule 31 on the possession of venison reads as follows: Applications for a license to possess venison during any calendar year, pursuant to the provisions of section 191 of the Conservation Law, must be made and the license granted on or before November 20. The applicant shall at the time of filing his application for a license pay to the Commission a license fee of one dollar and such license shall be granted only to a person holding a hunting and trapping license. A license shail permit the person killing the deer to possess the same for consumption and not otherwise, from November 21 to February 1, both inclusive, provided that said deer or venison shall be tagged as follows: Each quarter of said deer shall be tagged with a tag to be furnished by the Commission. The Commission will also furnish with the license duplicate coupons - which shall be filled out, signed and sworn to by the licensee; one coupon shall be attached to the deer and one coupon shall be filed with the Commission on or before November 24th of the same year; the tags shall be fastened and locked to each quarter and the coupon attached to said deer on or before November 24th next succeeding the date of killing. Wild venison cannot be sold. Wild deer are defined by Section 380, subdivision 11: “Wild deer” includes all deer not lawfully held in private ownership in a preserve wholly enclosed by a fence as provided by section three hundred seventy-two hereof. Game Quaprupeps anp Fur-Brartna ANtImMAts 149 § 192, Deer, open season, special. Only wild deer having horns not less than three inches in length may be taken in Ulster county and in the towns of Never- sink, Cochecton, Tusten, Highland, Lumberland, Forestburg, and Bethel, and all that section of the towns of Mamakating and Thompson, lying south of the Newburgh and Cochecton turnpike, in Sullivan county, and the town of Deerpark in Orange county, from November first to November fifteenth, both inclusive. § 193, Dogs to be licensed No dog of either sea shall be taken into the Adirondack or the Catskill Park, or into forests inhabited by deer, or harbored or possessed therein, unless the owner shall first obtain a license for such dog from the commission, and pay a fee of one dollar therefor. The license shall be issued by the commission in its discretion and under such rules and regulations as it may deem advisable and shall terminate with the calendar year in which issued. A metal tag marked with a number corresponding to the number of the license shall be issued with the said license, and shall be attached to a collar and shall be at all times worn by the dog so licensed. Dogs of either sex, licensed as herein provided, shall not run at large in the Adirondack or the Catskill Park or forests inhabited by deer, unaccompanied by the owner. Any act committed or done contrary to the provisions of this section, or the neglect to perform any duty provided therein, shall be deemed a violation thereof for which the owner shall be liable. Any person may and it shall be the duty of every game protector to kill any dog of either sex pursuing or killing deer, and no action for damages shall be maintained against the person for such kill- ing. The prohibitions of this section shall not apply to dogs upon lands actually farmed or cultivated by the owner of such dog or within the limits of an incorporated village or town, or a com- munity having a resident population of not less than one hun- dred individuals. Section 380, subdivision 29, provides: For the purposes of this chapter a dog shall be deemed to be “at large” when it is outside of the owner’s residence or a fenced enclosure immediately surrounding or adjacent to such residence. In an action for the penalty it is not necessary to prove intent to violate the statute. Prior to the amend- ment of 1916, it was also held that no person, even on his 150 Game Law GuIDE own lands situated within the defined territory, could hunt any quadrupeds or birds with a dog. People v. Redwood, 140 A. D. 814. Barring the exception now provided for and the com- pliance with the license requirement, the same proposi- tion still holds true. WILD MOOSE, ELK, CARIBOU AND ANTELOPE Game Quadrupeds § 194. Wild moose; elk; caribou and antelope There shall be no open season for wild moose, elk, caribou and antelope; but they may be brought into the state for breeding pur- poses. The flesh or any portion of any such animal may be pos- sessed or transported by the owner thereof, provided such animal was killed by the owner thereof, in a private park within the state, and further provided that the provisions of section three hundred and seventy-two in so far as the same are applicable are in all respects complied with. Successful efforts to develop herds of these animals in the forest preserve are being carried on. See sections 372 and 373 on the breeding, sale and trans- portation of these animals. See sections 158 and 159. BLACK, GRAY AND FOX SQUIRRELS Game Quadrupeds 1. Open season Black, gray and fox squirrels may be taken and possessed from October first to November fifteenth, both inclusive, except on Long Island, where they may be taken and possessed from November first to December thirty-first, both inclusive. No person shall take black, gray or fox squirrels within the corporate limits of any city or village. 2. Limit A person may take five such squirrels, either all of one kind or partly of each, in one day. See ordinances of cities and villages. See section 222. See section 1425, subdivision 10, of the Penal Law. GAME QuUADRUPEDS AND Fur-Brearinc Animats 151 Red squirrels and chipmunks are not protected, but the white squirrels come within the statute if in fact they are albino black, gray or fox squirrels. Squirrels cannot be sold. There is no provision for their possession after the close of the season as in the cases of venison, waterfowl, upland birds and shore birds. See section 181. See sections 158 and 159. HARES AND RABBITS Game Quadrupeds § 196. 1. Open season The open season for varying hares and cottontail rabbits shall be from October first to January thirty-first, both inclusive, except on Long Jsland where the open season for varying hares and cottontail rabbits shall be from November first to December thirty- first, both inclusive. The use of ferrets is at all times prohibited, except that the commission may by resolution permit ferrets to be used in particular counties. The owners or occupants of inclosed or occupied farms and lands or a person duly authorized in writing by such owner or occupant may take except by use of ferrets in any manner at any time and in any number varying hares and eottontail rabbits which are injuring their property. Except in counties where the use of ferrets is permitted by the conservation commission the possession of ferrets afield shall be presumptive evidence of their illegal use. The counties in which the use of ferrets is by resolu- tion allowed are determined from year to year by the Commission. In Vermont the use of ferrets except to drive hares and rabbits from holes to be shot at with a gun, is pro- hibited. Wild hares and rabbits taken for the reason that they are injuring property if taken during the close season, or if taken during the open season other than in compliance with Section 177, subdivision 1, cannot be used or disposed of for food purposes. 152 Game Law GuIpE There is no provision for the possession of hares and rabbits after the close of the season. See section 181. See sections 158 and 159. 2. Limit A person may take siz varying hares or cottontail rabbits either all of one kind or partly of each in one day. 3. Sale Varying hares and cottontail rabbits may be bought and sold during the open season for the taking thereof and when brought from without the state, may be bought and sold at any time and in any number. 4, Breeding Varying hares and cottontail rabbits when bred in captivity may be bought and sold for food purposes during the close season therefor, provided a license so to do shall have first been obtained - from the commission, upon the payment to it of a license fee of five dollars a year. Varying hares and cottontail rabbits so bred may be bought and sold for food purposes during the close season, provided the same shall first have been tagged with an indestruc- tible tag or seal which shall be supplied by the commission under such rules and regulations as it deems advisable. See Protective Orders. It is not necessary in an indictment or information to negative the force of the exception or proviso. The exceptions are matters of affirmative defense. People v. Chamberlain, 92 M’. 720. BEAVER Fur-bearing Animal § 197. No person shall take or possess beaver at any time or molest or disturb any wild beaver or the dams, houses, homes or abiding places of same, except as permitted in section one hun- dred and fifty-eight. See sections 159 and 200. Game QuADRUPEDS AND Hur-Bearinc Animas 153 MINK, RACCOON AND SABLE Fur-bearing Animals § 198. Mink, raccoon, and sable may be taken either in the day- time or at night and in any manner and possessed from November tenth to March fifteenth, both inclusive. See sections 158, 159 and 200. There is no express provision for the possession of pelts after the close of the season although those lawfully possessed may be bought and sold at any time. See sections 179 and 181. SKUNK Fur-bearing Animal § 199. Skunk may be taken either in the daytime or at night and in any manner, but they shall not be taken from holes or dens by digging, smoking or the use of chemicals, and they may be possessed from November tenth to February tenth, both inclusive. Skunks which are injuring property or have become a nuisance may be taken at any time in any manner. See sections 158, 159 and 200. See sections 179 and 181. Skunks taken on the ground that they are injuring property or have become a nuisance may be taken by digging or the use of chemicals during either the open or close season, but the pelts of skunks, so taken shall not be possessed or sold. The pelts of skunks taken generally in any manner on the ground of nwisance during the close season cannot be sold, but they may be taken by the owner of the prop- erty in question or any person whom he authorizes. See People v. Chamberlain, 92 M. 720, on matters of affirmative defense. MUSKRAT Fur-bearing Animal § 201. Muskrat may be taken in any manner, except as herein prohibited, day or night, and possessed from November tenth to 154 Game Law GuIpDE April twentieth, both inclusive. Muskrat houses shall not be molested, injured or disturbed at any time. The taking of musk- rats by shooting is prohibited. See sections 158, 159 and 200. See sections 179 and 181. This prohibition as to shooting muskrats is the only exception to Section 177, subdivision 1, as to taking game protected by law with a gun. As a general proposition, it has been held justifiable in defense of and to preserve property to kill wild fur- bearing animals protected by statute when the killing is done under a reasonable necessity. 2 Cye. 420. Ingham on Animals, 571. But the pelts of such animals so killed during close season cannot be sold. LAND TURTLES Classed as Quadrupeds § 202. Taking, killing or exposing for sale of all land turtles or tortoises, including the box turtle and the wood turtle, is hereby prohibited. The prohibition of this section does not apply to the common mud or snapping turtles nor does it apparently cover the common painted tortorse. ee CHAPTER X GAME BIRDS See Federal Regulations Game birds can be taken only in compliance with Sec- tions 176 and 177, subdivision 1. They may be taken in compliance with law from their usual haunts and wherever found except where particular permissive sections restrict the circumstances of taking in that respect as for instance in the case of waterfowl. See section 211. For the purposes of the Conservation Law, the follow- ing only are considered game birds as defined in Section 210; The anatidae or water fowl, commonly known as geese, brant, swans and river and sea ducks; The rallidae, commonly known as rails, American coots, mud hens and gallinules; The gallinae, or upland game birds, commonly known as wild turkeys, grouse, prairie chickens, pheasants, partridges and quail. The limicolae, or shore birds, commonly known as woodeock, snipe, plover, surfbirds, sandpipers, tatlers and curlews. Compare Federal Regulations. ANATIDAE OR WATER FOWL See Federal Regulations See sections 290 and 291, as to dams on the inland waters of the state. § 211. 1. Open season Water fowl, wild and domestic, may be taken from September sixteenth to January tenth, both inclusive. They may be possessed from September sixteenth to January fifteenth, both inclusive. There shall be no open season for woodduck and swan. [155] 156 Game Law GuIDE The Federal Regulation 7 fixes the open season on water fowl, including coots and gallinules from Septem- ber 16th to December 30th, inclusive, except on Long Island and restricts taking, but not possession. See section 212. 2. Limit A person may take during the open season, not to exceed twenty- five water fowl in the aggregate of all kinds in one day. When- ever two or more persons are occupying the same boat, battery or blind, not to exceed forty water fowl in the aggregate of all kinds, may be taken in one day by such persons. The Federal regulation prescribes no limit. Persons walking up water fowl instead of using boat or blind may take twenty-five each in a day. The Ontario act provides that no person shall take more than two hundred wild ducks in any one year. The establishment of a day limit of not to exceed fif- teen water fowl to each person as 1s the case in Massa- chusetts on black ducks and of a season limit of not to exceed two hundred water fowl has been urged. 3. Manner of taking Water fowl may be taken during the open season from the land, from a blind or floating device used to conceal the hunter (other than a sail or power boat) from a rowboat, when the same is within fifty feet of the shore or a natural growth of flags or in pursuit of wounded birds. Flocks of ducks shall not be pursued in fresh water so as to drive them away from any neighborhood. No provision of the law has been subject to more dis- cussion and evasion than subdivision 3 of Section 211. There is no definition of land, but land cannot be con- strued to include ice or artificial as distinguished from natural formations of any kind resting or reaching more than fifty feet from shore or a natural growth of flag, if Game Brirps 157 any hide or device to conceal the hunter exclusive of clothing is used. The shooting from boats under power or sail is abso- lutely prohibited and shooting from a rowboat propelled by oars is limited to the fifty-foot from shore mark except when in bona fide pursuit of crippled water fowl. There is no prohibition against acts committed by a person on land tending to scare up water fowl provided the acts are done between sunrise and sunset. The Wisconsin act prohibits the use by one person or two or more persons acting together, of more than twenty-five decoys the farthest out to be not more than two hundred feet from the hide or blind. There is nothing in the Conservation Law which expressly permits the use of either live bird or artificial decoys. But the use of decoys and their presence in the water before open season and between sunset and sun- rise have not been questioned. Nor has holding a place with decoys been challenged as a prohibited lesser act. Use of decoys has been claimed to constitute ‘‘ attract- mg ’’ rather than ‘‘ taking.”’ WATER FOWL ON LONG ISLAND See Federal Regulations 1. Open season Water fowl on Long Island and the waters adjacent thereto may be taken from October first to January tenth, both inclusive. 2. Manner of taking Water fowl may be taken by aid of any floating device other than sailboats or power boats, at any distance from shore on Long Island Sound, Shinnecock, Gardiner and Peconic bays, dur- ing the open season therefor, and except from October first to October nineteenth, both inclusive, in Great South Bay west of Smith’s Point and east of the Nassau-Suffolk county line. Federal Regulation 7 fixes the open season as to water fowl on Long Island from October ist to January 15th, inclusive. 158 Game Law GurIpE RALLIDAE See Federal Regulations § 213. 1. Open season Rails, American coots, mud hens and gallinules may be taken and possessed from September sixteenth to December thirty-first, both inclusive. 2. Limit A person may take during the open season not to exceed fifteen of such birds in the aggregate of all kinds in one day. Whenever two or more persons are occupying the same boat or blind, not to exceed twenty of such birds shall be taken in the aggregate of all kinds in one day by such persons. The Federal Regulation and the Conservation Law coincide on coots and gallinules, but on other rallidae the Federal Regulation fixes the open season from Sep- tember 1st to November 30th, inclusive. Rallidae cannot be possessed after the close of the season. The restrictions of Section 211, subdivision 3, do not apply to the hunting of rallidae. GALLINAE OR UPLAND GAME BIRDS Section 214 provides as to upland game birds as follows: Upland game birds may be taken as follows, and when so taken may be possessed during the open season therefor and for an addi- tional period of five days next succeeding the said open season: 1. Quail There shall be no open season for quail before October first, nineteen hundred and eighteen. 2. Grouse or partridge October first to November thirtieth both inclusive. A person may take not to exceed four grouse or partridge in one day and twenty in the open season. Grouse are defined by Section 380, subdivision 12: “Grouse” includes ruffed grouse, partridge and every member of the grouse family. Game Brrps 159 This definition would include capercailzie, ptarmigan, spruce grouse, blackcock, ete., which might reach this State from Canada, New Hampshire or elsewhere. 3. Wild pheasants On the last two Thursdays in the month of October and the first two Thursdays in the month of November and possessed dur- ing the period of time between the first open Thursday in October and the last open Thursday in November, inclusive. Only wild male pheasants may be taken. A person may take and possess not to exceed three wild male pheasants in the open season. The introductory statement as to possession after close season governs subdivision 3 in that respect. See Protective Orders in force in the various counties of the State. Pheasants are defined by Section 380, sub- division 19: “ Pheasants” includes Hungarian dark-necked pheasant, ring- necked, commonly called English, Mongolian or Chinese pheasant. Silver and golden pheasants are not included. It has been contended that the taking of pheasants should be allowed from the 15th of October to the 15th of Novem- ber and that if not to exceed five should be fixed as the season limit, there would be no more pheasants taken than are killed as the statute now stands. 4, Partridge There shall be no open season for Hungarian or European gray legged partridge. § 215. Upland game birds on Long Island, special Quail, pheasants, and grouse may be taken on Long Island from November first to December thirty-first, both inclusive. A person may take not to exceed ten quail, siz male pheasants and four grouse in any one day and fifty quail, thirty-six male pheasants and twenty grouse, in the open season on Long Island. 160 Game Law GuIpB LIMICOLAE OR SHORE BIRDS See Federal Regulations Section 216 provides as to shore birds: Shore birds may be taken as follows, and when so taken may be possessed during the open season therefor and for an additional period of the five days next succeeding the said open season: 1. Woodcock October first to November fifteenth, both inclusive. A person may take not to exceed four woodcock in one day and twenty in the open season. Federal Regulation 7 fixes the open season on wood- cock from October 1st to November 30th, inclusive. 2. Snipe, plover, surfbirds, sandpipers, tatlers and curlews September sixteenth to November thirtieth, both inclusive. A person may take not to exceed fifteen shore birds in the aggregate of all kinds in one day. Whenever two or more persons are occu- pying the same boat or blind not to exceed twenty-five shore birds may be taken in the aggregate of all kinds in one day by such persons. Federal Regulation 7 fixes the open season on black- breasted and golden plover and the greater and lesser yellowlegs from August 16th to November 30th, inclu- sive; and on jacksnipe or Wilson snipe from September 16th to December 31st, inclusive. By Federal Regulation 4 a closed season is continued until September 1st, 1918, on all shore birds, except black- breasted or golden plover, Wilson snipe or jacksnipe, woodcock and the greater and lesser yellow legs. Wilson snipe and English snipe are deemed identical. The Federal Regulations protect absolutely until Sep- tember 1st, 1918, all shore birds not expressly excepted and it is important to remember that this federal protec- tion covers particularly the smaller shore birds, the kildeer and upland plover. The restrictions of Section 211, subdivision 3, do not apply to the hunting of shore birds. GAME Brirps 161 Persons walking up shore birds instead of shooting from blind or boat are entitled to fifteen birds each in a day. § 219. Shore birds on Long Island, special Shore birds may be taken on Long Island as follows: 1. Woodcock : October fifteenth to November thirtieth, both inclusive. 2. Snipe, plover, surfbirds, sandpipers, tatlers and curlews August first to November thirtieth, both inclusive. EL CHAPTER XI FISH See sections 152, 153, 155, 156, 366 and 159. In considering the subject of fish Section 176 at first glance apparently applies only to fish protected by law. The latter part of Section 176 Nets except in the marine district, tip-ups, set and trap lines, spears, grappling hooks, naked hooks, snatch hooks, eel weirs and eel pots shall not be used to take fish except as specifically per- mitted in this article must be read in connection with Section 177, Subdivision 2: Fish, except migratory food fish of the sea, shall only be taken by angling, unless otherwise specifically permitted by this article. In ease any fish or crustacea is unintentionally taken contrary to the prohibitions or restrictions contained in any of the provisions of this article, such fish, or crustacea shall be immediately liberated and returned to the water, without unnecessary injury. Whenever any fish under the size limit prescribed by the provisions of this article are received in transportation from another state or country, on whenever such fish, are taken in gill nets, they shall neither be sold, bought or otherwise trafficked in. The general prohibition of Section 176 as to sale and other matters except taking applies only to fish protected by law. Advance baiting of fish is forbidden by the Maine statute as is also fishing for hire. The term fish is defined by Section 380, subdivision 6, as follows: “ Fish” includes “ fish protected by law,” “fish protected by this article,’ and “ food-fish.” Whenever the words “ fish protected [162] ——— isu 163 by law” or “ fish protected by this article” are used, reference is had only to fish for which a closed season or size limit is provided. Whenever the words “ food-fish” are used, reference is had to all species of edible fish. In connection with the question of size limit it is inter- esting to note that the statute of West Virginia requires the measurement to be made from the tip of the nose to the centre of the fork of the tail. Rule la further provides: Food fish, other than migratory food fish of the sea within the limits of the marine district, shall not be taken by any person in any manner other than by angling or in the manner expressly permitted by a license or permit duly issued by the Commission. For a definition of the marine district see Section 300. The above provisions constitute a blanket prohibition reinforced by other restrictive sections against the tak- ing of any fish other than migratory food fish of the sea within the limits of the marine district except by angling unless specific authority as to other particular forms of taking can be pointed out in particular permissive sections. Angling is defined by Section 380, subdivision 20: “Angling’’ means taking fish by hook and line in hand or rod in hand; or if from a boat not exceeding two lines with or without rod to one person. This definition has not been construed to prevent the use of more than one hook on a line or to prohibit the use of gangs of hooks upon artificial lures. The Iowa act prohibits the use of more than one hook on a line except in case of artificial lures upon which one gang of not to exceed three hooks is used. Only one line or rod may be used on land or other than from a boat and it must be im hand. Only two lines or rods or one of each to each person may be used from a 164 Game Law GuIpE boat. Any other use of a line or rod or the use of any additional line or rod constitutes the same a set line. The rule as to the one line or rod m hand other than from a boat has usually been liberally construed and no question has been raised where the same has been per- sonally attended though not actually im hand. The use of landing nets to land angled fish is per- mitted by Section 275, but there is no provision allowing the gaffing or shooting of angled fish no matter how large their size. In contrast to the definition of angling is that of hooking contained in Section 380, subdivision 21: “ Hooking” is defined to mean taking or attempting to take fish not attracted by bait or artificial lure, by snatching with hooks, whether baited or unbaited, gangs or similar devices. See sections 255 and 255a. Fish which are to be taken by angling only cannot be taken deliberately by hooking. The only angling license required up to the present is that exacted from certain non-residents in certain cases pursuant to Section 188 already referred to in Chapter V. The only rule as to not fishing from sunset to sunrise is that applicable to netting and the hauling of similar devices. See section 273. There are several important specific prohibitions as +o fishing (reinforcing Section 176 and Section 177-2 and at this point it is important to note that the term inhab- sted whenever used means a permanent occupancy of a species as contrasted with a temporary presence of an occasional fish, and that the term trout means brook- trout as defined by Section 380-13. Section 380, subdivision 24. See People v. Tanner, 128 N. Y. 416. Fisn 165 One of the first auxiliary prohibitions is that contained in Section 242 against stocking private waters with certain fish taken from the waters of the State: Trout or lake trout shall not be taken from any of the waters of the state for the purposes of stocking private ponds or streams. Provided, however, that any person desirous of aiding the state in the propagation and distribution of trout, may on approval of the commission, take trout eggs from trout in public waters for breeding purposes and such trout shall be returned to the waters from which they were taken. Before permission is given, or trout taken as herein provided, the applicant shall show conclusively that he has facilities for breeding trout, and must execute a satisfactory bond to the people of the state, to be approved by the commission, conditioned that he will not sell, give away, convert to his own use, or otherwise dispose of any trout, or eggs taken under said permit, and will return the young trout to public waters at such times and places as the commission may designate. This section is not to be interpreted as preventing the necessary removal of fish endangered in time of drought from one stream to another or the keeping for propaga- tion purposes, in compliance with Section 159, of fish of legal size caught during the open season in a legal manner. Another prohibition is that against disturbing certain fish while spawning contained in Section 243: Bass, trout and lake trout on spawning beds in the close season shall not be disturbed, nor shall their spawn or milt be taken from the spawning beds except as provided by the preceding section, . and section one hundred and fifty-five. Another restriction is that against the use of explosives contained in Section 245: Fish shall not be taken by means of explosives. Except for mining or mechanical purposes, dynamite or other explosives shall not be wsed in any of the waters of this state, or possessed upon the waters, shores or islands thereof. Possession thereof by any person on the waters, shores or islands thereof, of this state shall be presumptive evidence that the same is possessed for use in violation of the provision of this section. 166 Game Law GuIDE The Commission may allow the use of dynamite in efforts to recover bodies under such restrictions as it sees fit to impose. A further restriction is that against obstructing streams set forth in Section 246: Except as provided in section two hundred and fifty-six or as directed by the commission, no person shall by means of any rack, screen, weir, or other obstruction in any creek, stream or river, prevent the passage of fish. The commission may order such an obstruction to be removed by the person erecting the same or by the owner of the land on which the same is located. A copy of the order shall be served on such person or owner. Failure to comply with the terms of such order within ten days after service of the same shall be deemed a violation of this section. See sections 22, 290 and 291. The pollution of streams is prohibited by Section 247: No dyestuffs, coal tar, refuse from a gas house, cheese factory, creamery, condensary or canning factory, sawdust, shavings, tan- bark, lime or other deleterious or poisonous substance shall be thrown or allowed to run into any waters, either private or public in quantities injurious to fish life inhabiting the same, or injurious to the propagation of fish therein. Under the statute as it formerly stood, pollution before it became punishable had to be rank enough to be destructive of fish. People v. La Bell, 128 A. D. 709. Injunctions may be had against pollution and damages recovered therefor. New York v. Blum, 208 N. Y. 237. Hodges v. Pine Products Co., 68 S. E. 1107 (Ga.). Commonwealth v. Kennedy, 47 L. R. A. 673 sae See sections 360-366. See section 1425 of the Penal Law, subdivision 1 See State v. Haskell, 34 L. R. A. 286. Fisu 167 Pollution of hatchery waters is prohibited by Section 248 : | No person shall erect or maintain any privy, watercloset, pigsty, hogpen, inclosure for poultry, barn or barnyard in which animals or poultry are kept, or drain from any building or the cellar thereof, where drainage or refuse therefrom will flow into or find its way into water used by any fish hatchery operated by the state, or into any pond, creek or stream used in connection therewith. Every such privy, watercloset, pigsty, hogpen, enclosure, barn, barnyard and drain is hereby declared to be a public nuisance, and may be summarily abated by the commission. No person shall place sewage or other matter injurious to fish where the same can find its way into the water used by any fish hatchery operated by the state, or suffer the same to be done from, over or through premises owned or occupied by him. : Drawing or shutting off water to take fish is forbidden by section 249: No person shall take fish by shutting or drawing off water for that purpose. No person shall hold back or divert the water in any stream which supplies a state hatchery so as to prevent the necessary flow of sufficient water for hatchery purposes. No person except under authority of the commission shall take fish from the waters of any fish hatchery. Restrictions are made by Section 250 as to the placing of certain fish in certain waters: Fish or eggs thereof other than trout, lake trout, frostfish, white- fish and smelt, shall not be placed in any waters of the state inhabited or stocked with trout. No person shall put or place in any public waters of the state fish commonly known as carp, nor shall any person put or place in such waters the spawn of such fish or use such fish as bait in the water thereof. Whenever the conservation commission shall determine that any waters of the state heretofore inhabited or stocked with trout are no longer inhabited by trout or are unsuitable as trout waters, the commis- sion may make an order permitting such waters to be stocked with any species of fish in addition to trout, lake trout, frostfish, white- fish or smelt, or the eggs thereof. There is no restriction against the stocking of private non-trout waters with carp. See section 1425, subdivision 12, of the Penal Law. 168 Game Law GuIbE Fishing near dams and fishways erected by the State in public waters is prohibited by Section 251: The commission may maintain fifty rods from any dam or fish- way erected by the state in public waters, on both sides of the stream above and below the fishway or dam (as the case may be) signboards containing substantially the following notice: “ Fifty rods to the fishway or dam (as the case may be); all persons are prohibited by law from fishing in this stream between this point and the fishway or dam” (as the case may be). No person shall take fish within fifty rods of any fishway or dam posted with sign- boards as provided in this section. The taking of fish through the ice in certain waters is prohibited by Section 252: No person shall take fish through the ice in waters inhabited by trout unless an order specifying the waters and fixing the season shall first be made by the commission. If the waters are not trout waters any fish during the open season therefor may be taken by angling. Fishing in the open water surrounded by ice is not fishing through the ice. Following the foregoing prohibitive provisions are certain permissive sections. The use of tip-uwps is regulated by Section 253: Tip-ups may be used, for fishing through ice except in waters inhabited by trout, to take bullheads, catfish, eels, perch, sunfish, and except during the months of March and April, pikeperch, pike and pickerel. No person shall operate or control at the same time more than fifteen tip-wps. All tip-ups must be marked with the name and address of the owner thereof. See Protective Orders. There is no restriction as to the use of live bait as in the case of set lines and no license is required. Only the fish mentioned may be so taken. Fisu 169 The use of set lines and trap lines is covered by Section 254: Set lines may be used except in waters inhabited by trout to take whitefish, bullheads, catfish, eels, perch, sunfish, carp, mullet and dogfish, provided an order specifying the waters and fixing the season shall first be made by the commission. Set and trap lines may be used to take sturgeon in any waters during the open sea- son therefor, provided a license for so doing shall first be obtaimed from the commission. Rules 17 and 18 on set lines read as follows: 17. Bait lines or trap lines to take sturgeon shall not exceed 1,200 feet in length and the bait lines shall use Number 8—0 hooks set not less than two feet apart and be anchored on the bottom; trap lines shall use Number 10-0 hooks, set not less than six inches apart and be anchored not over three feet from the bottom. Each bait or trap line shall have attached to one end thereof a buoy which shall be above water and in plain sight at all times; each buoy shall have attached thereto a tag, issued by the Commission, upon which shall be stamped a number corresponding with the number on the license. 18. Set lines other than sturgeon lines shall not be more than 500 feet in length nor contain more than 300 hooks; one end shall be attached to the shore and the other end thereof shall be anchored to the bottom; it shall not be lawful for one person to own or operate more than one such line; nothing but dead bait shall be used for bait; no fish other than the kind mentioned in section 254 of the Conser- vation Law shall be taken with such lines. The force of the limitation of Rule 18 and Sections 176 and 177, subdivision 2, was lost sight of in the case of People v. Keenan, 80 M. 539, where it was held that blue pike could be lawfully taken with a set line. See People v. Tanner, 128 N. Y. 416. The license fee for sturgeon lines is $1.00. A license is required for other set lines and the fee is $1.00. The use of worms, and any dead bait except dead minnows, is allowed. 170 Game Law GuiIpDE Spearing, ete., are regulated by Section 255: Spears, grappling hooks, naked hooks or snatch hooks may be used, except in waters inhabited by trout, for taking whitefish, mullet, carp, catfish, dogfish, bullheads, suckers and eels at any time, provided an order specifying the waters and fixing the season shall first be made by the commission. No license is required. See section 255a. Section 255a further provides as to snatch-hooks Suckers, mullet, carp, bullheads and eels may be taken by snatch- hooks only in any stream in the state at any point in such stream not less than five miles below the source thereof, between November first and April thirtieth, both inclusive. In taking such fish under the provisions of this section, driving shall be permitted. The requirements, prohibitions, conditions and exceptions prescribed by sections two hundred and fifty-two and two hundred and fifty- five of this chapter shall not apply to the taking of fish described in this section with snatch-hooks within the times herein prescribed. Spearing in the Niagara river is governed by a second Section 255a: 1. Fish excepting trout, black bass, pickerel and maskalonge may be taken in the Niagara river between the lower steel arch bridge and the suspension bridge at Lewiston Heights with spears, at any time during the open season for such fish. No such fish, however, shall be taken of a size less than that prescribed by. this chapter. 2. Every person, before taking fish with a spear as herein pro- vided, shall obtain a license therefor from the town or city clerk of the town or city in which he resides. Such town clerk shall be entitled to receive a fee of one dollar for issuing such license to be disposed of in the manner provided by subdivision four of section one hundred and eighty-five of this chapter. Compare section 188. The use of eel weirs and pots is prescribed in Section 256: Eel weirs and eel pots of such form as may be prescribed by the commission may be used at any time for taking eels, provided FisH val a license for so doing shall first be obtained from the commission. Eel weirs shall not be used in waters inhabited by trout. This section shall not apply to waters of the marine district. For a definition of the marine district, see section 300. Rules 14, 15 and 16 as to eel weirs and pots provide as follows: 14. Eel pots must not be more than 6 feet long, nor more than 12 inches square, if in square form. The aperture or mouth of any eel pot shall be not more than 1 1/2 inches in its greatest diameter. There shall be no fixtures or wings of any kind attached to or used in connection with eel pots. 15. For the purposes of these rules an eel weir shall consist of not to exceed two wings or leaders fastened to an eel trap; no eel trap shall have attached thereto more than one weir; the length of each weir shall be determined by the commission or person designated by it; and the use of weirs of a greater length than that specified in the license is prohibited. : 16. Eel weirs and eel pots shall not be constructed, set or used in any manner so as to unduly obstruct the natural flow of water or interfere with the free passage of boats. The use of eel weirs, the laths of which are less than 1 inch apart, is prohibited. Hach eel weir or eel pot shall have attached thereto a tag, issued by the commission upon which shall be stamped a number correspond- ing with the number on the license. All fish, except eels, taken in an eel weir or an eel pot, must be immediately returned to the water. The license fee for each eel pot is $3.00 and for each eel weir with trap attached, $20.00. See Rule 13. The taking of frogs is regulated by Section 257: Bullfrogs, green frogs, and spring frogs may be taken in any manner, possessed, bought and sold from June first to March thirty-first, both inclusive. They shall not be taken, possessed, bought or sold at any other time. Frogs are the only animals listed as fish which may be taken with a gun. See section 185 as to hunting license. 172 Game Law GuIDE It has been urged that frogs in springs should be protected during the winter months. The taking of minnows is governed by Section 230: No person shall take minnows for bait with a net, trap or seine or sell minnows so taken without having first obtained a license so to do from the commission. Provided, however, that no license shall be required from a person to take minnows for his own use and not for sale. Minnows shall not be taken within one hundred feet of any dock, pier or boat landing structure along the Saint Lawrence river without the consent of the owner thereof, nor shall they be taken with a net, trap or seine in waters inhabited by trout. Rules 19 and 20 apply to the taking of minnows for sale or for personal use: 19. Each application for a license to take minnows for bait for sale shall be accompanied by a satisfactory bond in the penal sum of two hundred dollars, signed by the applicant and two sufficient sureties. 20. Black bass, maskalonge, white fish, pickerel, pike, pikeperch, lake trout, striped bass, yellow perch, shad and bullheads, taken in a net used to take minnows for bait shall be immediately returned to the water uninjured. No net more than twenty-five feet long shall be used for taking minnows for the owner’s personal use. Minnows cannot be taken in waters inhabited by trout either with a licensed or unlicensed net. Report of Attorney-General, 1903, page 371. Minnows ean be taken in trout waters by angling only. Persons interested in taking minnows should ascertain what streams are stocked with and inhabited by trout. Waters swtable therefor and stocked with trout are presumptively inhabited by them. There appears to be no restriction against the sale of minnows taken other than with nets, trap or seines. See section 176. See Rule 13 as to license fee for minnow nets, and see Netting Rules generally. FisH ia It seems such a license may be operated under by the licensee, a person in his employ or a person, under his ummediate supervision. See Rule 6. It is important to note as to the fish referred to in the sections to follow that no provision is made for their possession after the close of the season. See section 181. BASS Game Fish § 231. 1. Open season Black bass not less than ten inches in length may be taken and possessed from June sixteenth to November thirtieth, both inclusive. 2. Size of catch A person may take not to exceed fifteen such black bass in one day, but whenever two or more persons are angling from the same boat they may take not to exceed twenty-five in one day. Black bass are defined by Section 380, subdivision 15: “Black bass” includes Oswego bass. See sections 24la and Protective Orders under section 152, chapter IV. TROUT Game Fish § 232. 1. Open season Trout not less than six inches in length may be taken and pos- sessed from the first Saturday of April to August thirty-first, both inclusive. 2. Size of catch A person may take not to exceed ten pounds of trout in one day. See Protective Orders. Trout are defined by Section 380, subdivision 13: “ Trout” includes speckled trout, brown trout, rainbow trout, red-throat trout and brook trout. See section 371, on trout raised in private hatcheries. 174 Gamer Law GuIDE The New Jersey act fixes the limit on trout by number at twenty-five to each person and it has been recom- mended in the interests of the smaller trout that the limit in this State be based upon number rather than weight. This obviates any question as to the last fish caught and kept. Suggestions have also been made to the effect that all native trout under seven inches and all rawumbow trout under nine inches be protected. It is perhaps of interest to note that the socalled speckled or native trout is not strictly speaking a trout, but a char, a salmo, the salvelinus fontinalis. Section 233 making special provision as to trout on Long Island was repealed by Chapter 508 of the Laws of LOWS: It has been urged that the taking of trout after pro- nounced dark and before daylight should be prohibited as it was temporarily in 1908. This would not interfere with dusk and dawn fly-fishing and would have a tend- ency to block illegal night practices. It has also been urged that in waters inhabited by trout no fishing during the close seacon on trout, be permitted. Bass and wild trout are above all others properly entitled game fish for the reason that they can be taken only by angling and can neither be bought nor sold. LAKE TROUT AND WHITEFISH § 234. 1. Open season and size limit Lake trout not less than fifteen inches in length and whitefish not less than one and three-quarters pounds in the round may be taken and possessed from April first to September thirtieth, both inclusive. 2. Otsego whitefish, commonly called Otsego bass, not less than nine inches in length may be taken and possessed from January first to October thirty-first, both inclusive. The so-called silver bass is neither a bass nor a white- fish. FisH 175 3. Size of catch A person may take by angling not to exceed ten lake trout in one day, but whenever two or more persons are angling from the same boat they may take not to exceed fifteen in one day. White- fish may be taken in any number or quantity. 4. Sale of Such lake trout and whitefish may be bought and sold during the open season therefor. See sections 235 and 241a. As to netting lake trout and whitefish, see Section 271. Lake trout are defined by Section 380, subdivision 14: “Take trout” for the purposes of this article includes land- locked salmon and ouananische. Section 235. Lake trout and whitefish may be taken in Lakes Erie and Ontario in any number or quantity at any time, and when so taken may be possessed, bought and sold, provided that every person to whom a license is issued to take such fish with a net or nets operated from power boats shall, when required by the commission, furnish without charge to the commission eggs and milt from such fish taken by him during the spawning season. Such eggs and milt shall be taken by the commission for propa- gation only and shall be taken from the fish by the agents of the commission. The person to whom such license is issued may be required by the commission to give a bond with sufficient sureties approved by the commission conditioned that he will furnish such eggs and milt as aforesaid and permit the agents of the commis- sion to be present in any such boat at the time of the taking of such fish for the purpose of taking such eggs and milt and con- ditioned that he will not hinder or delay such agent in the per- formance of such duty nor in the landing of such eggs and milt from said boat in good order. Lake trout not less than fifteen inches in length and white fish not less than one and three-quarters pounds in the round taken without the state may be imported into this state at any time and when so imported may be possessed, bought and sold. PIKE PERCH § 236. 1. Open season, size limit and sale of Pike perch not less than twelve inches in length may be taken, possessed, bought and sold in any number or quantity from May thirtieth to March first, both inclusive. 176 Game Law GuIDE 2. Blue pike perch and saugers, of any size may be taken at any time and in any number or quantity in Lakes Erie and Ontario and in the lower Niagara river, and when so taken may be possessed, bought and sold. See section 24la and Protective Orders. Pike perch are defined by Section 380, subdivision 17: “Pike perch” includes walleyed pike, commonly ealled pike, and yellow pike. As to netting pike perch, see section 271. YELLOW PERCH § 23G6a. 1. Yellow perch may be taken and possessed, in any number or quantity, from the waters of Cazenovia lake, Otisco lake, Skaneateles lake, Cross lake, Onondaga lake and Jamesville reservoir, only between the first day of May and the first day of March, both inclusive. 2. Such yellow perch may be bought and sold during the open season therefor. Subdivision 1 is a restriction as to the waters named only and does not constitute perch protected by law. Perch generally may be bought and sold. As to netting perch, see section 271. PICKEREL AND PIKE § 237. 1. Open season Pickerel and pike in any number or quantity may be taken and possessed from May first to March first, both inclusive, except as herein provided. 2. Limit In the Saint Lawrence river a person may take in one day not to exceed twelve great northern pike, locally known as “ pickerel ” not less than twenty inches in length. 3. Sale of Such pickerel and pike may be bought and sold during the open season therefor. See section 24la and Protective Orders. FisH Lid Pickerel and pike are defined by Section 380, subdi- vision 16: “ Pickerel” and “ pike” include the great northern pike com- monly called pickerel, pond pickerel, chain pickerel, grass pickerel and banded pickerel. As to netting pickerel and pike, see section 271. STURGEON § 238. 1. Open season and size limit Shortnosed sturgeon not less than twenty inches in length may be taken and possessed from July first to April thirtieth, both inclusive, in any number or quantity. Lake sturgeon not less than thirty inches in length, and sea sturgeon not less than four feet in length may be taken and possessed in any number or quantity at any time. 2. Sale of Such sturgeon may be bought and sold during the open season therefor. MASKALONGE § 239. 1. Open season and size limit Maskalonge not less than twenty-four inches in length may be taken and possessed from June sixteenth to December thirty-first, both inclusive, in any number or quantity. No person shall take maskalonge through the ice. 2. Sale of Such maskalonge may be bought and sold during the open season therefor. Section 271 does not provide for netting maskalonge. STRIPED BASS § 240. Striped bass not less than twelve inches in length may be taken by angling and with nets and possessed and sold in any number or quantity at any time. See section 271, as to netting striped bass. SMELT § 241. 1. Open season and size limit Smelt or icefish not less than six inches in length may be taken from the inland waters of the state and in Lake Champlain in 12 178 Game Law GuIDE any number or quantity at any time. Smelt or icefish of any size may be brought from without the state or taken within the marine district. 2. Possession and sale of Such smelt or icefish may be possessed, bought and sold at any time. Special open seasons as to Lake George are provided for by Section 241la: The open seasons for taking fish in the waters of Lake George, in any part thereof, shall be as follows: Lake trout from May first to October first, both inclusive; pike perch, pickerel, great northern pike, from June sixteenth to December thirty-first, both inclusive; bullheads from July first to December thirty-first, both inclusive; black bass from August first to December fifteenth, both inclusive. CHAPTER XiIl NETTING The differences between anglers and net fishermen will probably never be reconciled. No net, except the trammel net for catching carp only, would be permitted in the inland waters of the State if the average angler had his way. On the contrary, net fishermen naturally favor the eatching with nets and the sale of all kinds of fish. Anglers who oppose the angling license are in a poor position to criticise the netting provisions and are not to be heard as against the tax-paying, non-fishing public which wants fresh water fish for food and insists that those who are disposed to eatch and sell them be reason- ably allowed to do so. The application of the sections on netting is limited by Section 280: The provisions of part VIII of this article, except sections two hundred and eighty-two and two hundred and eighty-three, shall only apply to the taking of fish from Lakes Erie and Ontario, the Hudson river north of Verplanck’s Point and the inland waters of the state. Compare section 300. The most important prohibition against the use of nets is that contained in Section 275: In waters inhabited by trout the use of nets of any kind is prohibited. This prohibition shall not apply to landing nets used to land fish duly hooked by angling or to use of nets by the com- mission as provided in section one hundred and fifty-five of this chapter. [179] 180 Game Law GuIDE An important prohibitive provision as to netting is that contained in Section 244 on thumping: Sailing, rowing, pushing or floating in any boat or vessel in a waterway, river, run or channel, bay or sound, or patrolling the banks of such waterway, river, run or channel, bay or sound, and stamping, jumping, shouting, pounding, beating or splashing the water, beating the banks, or boat while a seine or net is set, drawn, water, beating or pounding the banks, or boat while a seine or net is set, drawn, held, or used in such waterway, river, run or chan- nel, bay or sound, with intent to drive fish into such seine, or net, which acts are commonly known as thumping, are hereby for- bidden. Nets are defined by Section 380, subdivision 25: “ Nets ” ineludes seines, gill nets, pound nets, trap nets, scap nets, fyke nets, dip nets, scoop nets and stake nets. The trammel net does not appear to be ineluded.. While it is essentially a seine, it was held in Rowe v. State, 83 Arkansas, 245 that a trammel net was not a seine. In People v. MeMasters, 74 Hun, 226, a person trolling and hooking into a net containing fish, by appropriating and taking the fish ashore was held liable for the penalty. Nets are to be licensed as provided in Section 270: Unless otherwise provided by this article, seines, gills, fykes, pounds, traps, seaps and other nets or devices may be set or used in any of the waters of the state provided a license so to do shall be first obtained from the commission. Rules regulating the use of seines, gills, fykes, pounds, traps, scaps and other nets or devices in any of the waters of the state, and providing for the licensing of such nets together with a license fee therefor, may from time to time be prescribed by the commission when not incon- sistent with law and such rules shall be filed in the office of the commission. See sections 230 and 275. See section 279 as to nets in the Hudson and Delaware rivers. The general power of the Commission to revoke net- ting licenses was upheld by the Attorney-General’s Report, 1900, page 251. NETTING 181 The establishment of properly certified and authenti- cated rules as to the use of nets was held in Josh v. Mar- shall, 33 A. D. 77 to be a condition precedent to the obli- gation of a net fisherman to procure a license. Rules 1 to 18 on nets are as follows: 1. No nets of any kind shall be set or used for the taking of fish in Lake Erie or Lake Ontario or the inland waters of the State, or in the Hudson River south of Verplanck’s Point, for the taking of fish other than migratory food fish of the sea, without a license so to do granted by the Conservation Commission. la. Food fish, other than migratory food fish of the sea within the limits of the marine district, shall not be taken by any person in any manner other than by angling or in the manner expressly permitted by a license or permit duly issued by the Commission. 2. No license shall be granted except upon written application made upon blanks to be furnished by the Commission and signed and sworn to by the applicant. All applications for licenses must be endorsed by two responsible persons. The application shall specify the size of the bar and the kind and size of the net to be used together with the length of the wings and leaders. The Commission shall determine and fix the size of nets and the length of the wings or leaders to be used. The Commission may refuse to grant a license to any person for any reason which to it may seem sufficient. Each application shall be accompanied by a satisfactory bond signed by the applicant and two sufficient sureties in an aggregate penal sum equal to one hundred dollars for each net specified in the license but not exceeding three hundred dollars; each application for a boat license shall be accompanied by such a bond in the penal sum of five hundred dollars. Failure to return to the Commission at the expiration of a license, tags, issued by it, or to make the report required by rule twelve hereof is sufficient cause for denying an application for a license. 3. All licenses for nets shall be granted pursuant and subject to these rules and regulations. 4, Only such nets, to the number and of the size of the bar, with leaders and wings, of the length mentioned, shall be used as are speci- fied in the license; the license shall specify the kind of nets to be used and the duration of the license; licenses shall be granted for no longer than one year; all licenses granted during the year will expire on the 182 Game Law GuIDE thirty-first day of December following unless an earlier date is specified ; nets shall be used only during and at the times specified in the license. 5. The Commission may revoke any license granted hereunder at any time for any reason which to the Commission may seem sufficient. 6. A license issued pursuant to these rules is not transferable and if a licensed net be used by any person other than the licensee or a person in his employ, or under his immediate supervision, it shall be deemed forfeited, revoked and caneelled. 7. Nets shall be set or used only in the waters mentioned in the license; the setting and hauling of all nets in those waters shall at all times be under the direct supervision and control of the Conservation Commission or person designated by it, who shall have the power to designate the location of all nets; such location once fixed shall not be changed without the written authority of said Commission or person. No net licensed under a seine license shall be staked, anchored or otherwise fastened while in the water unless specifically permitted in the license. 8. The Commission shall issue with each licensed net a tag upon which shall be stamped a number corresponding with the number or numbers on the license. Such tag must be attached to the net when in use in such manner that it will be on the top of or above the water and in plain sight at all times. 9. The owner of each licensed boat on Lake Erie or Lake Ontario shall at all times have his license in plain sight, aboard said boat. Hach licensee must exhibit his license when requested by any game protector or by any peace officer of this State or by any person designated by the Commission. 10. The bar of all nets used under any license, except to take minnows for bait, shall be as follows: Nets for taking lake trout and whitefish, not less than 2%s-inch bar; Nets for taking Otsego whitefish in Otsego Lake, not less than 144-inch bar; Nets for taking fish, other than lake trout and whitefish, not less than 1%-inch bar; Nets for taking short-nosed sturgeon, not less than 2!4-inch bar; Nets for taking other sturgeon, not less than 5-inch bar. 11. Fish not allowed to be taken under the license shall be carefully handled and immediately returned to the water; fish which may be taken, if under the size limit and taken in gill nets, must be disposed of as provided in section 177 of the Conservation Law. 12. Every person holding a license shall make an annual report to the Commission of the number, weight and species of fish caught and the value of the same, and return the tags issued to him with the license. NETTING 183 13. An applicant shall, at the time of filing his application for a license, pay to the Commission a license fee as provided in the follow- ing schedule: NET SCHEDULE iPoricicu minnow net, per lineal foot.2: fies eltl.. lee teas oe $0 10 For each scoop, dip or seap net 10 by 10 feet square and under. 1 00 For each scoop, dip or scap net over 10 by 10 feet square.... 2 00 For each fyke net 3-foot hoop and under...............0... 2 00 For each fyke net 5-foot hoop and over 3 feet.............. 3 00 Hormveach fyke eb Over O-Loot: HOOP) s 3 .!s 65 wisest os arc\elere ae leis es 5 00 Horvescn:4-foot) trap wet) andi mnders). | och 6. ele es ose ele ieee © wa, 2 00 Nonseach) 6-foot, trap net and over 4: Leet. oo i o)5 0s oe ws pieeo eens 5 00 or each) 8-toot ‘trap net and\over 6 feet... ....6- 0 een «oie eia os 7 00 For each machine trap net larger than 8 feet................ 10 00 For each seine or gill net used only for taking fish not peotectad Dyalciwer per laea Noobs 22). chek c:l sisies onus, 2 etal n alee veleroista acer 15 For each machine trap in the Niagara River.................. 20 00 For each seine or gill net used only for taking fish not protected by law, 2 cents per lineal foot. No license issued for less than $5.00 and the maximum fee for such licenses will be........ 15 00 EEE CMMSUUEM COM: TG). a 2.01 ait ios's-