DEPARTMENT OF ‘COMMERCE. BUREAU OF iaroik ISH LAWS. OF STATES. BORDERING ON _ MISSISSIPPI AND OHIO RIVERS | ‘ A on DIGEST. OF STATUTES RELATING. T0 THE _ PROTE TION OF FISHES AND OTHER, "APPENDIX hie ‘To: THE ‘REPORT OF THE UL S. COMMISSIONER, OF F ISHERIES FOR, lyn » Bureau of Fisheries De ument No. ; 366 ES DEPARTMENT OF COMMERCE BUREAU OF FISHERIES * HUGH M. SMITH, Commissioner FISH LAWS OF STATES BORDERING ON | MISSISSIPPI AND OHIO RIVERS A DIGEST OF STATUTES RELATING TO THE PROTECTION OF FISHES AND OTHER COLD-BLOODED AQUATIC ANIMALS By EMERSON STRINGHAM ] Assistant, U.S. Bureau of Fisheries APPENDIX II TO THE REPORT OF THE U. S. COMMISSIONER OF FISHERIES FOR 1918 Bureau of Fisheries Document No. 866 PRICE, 5 CENTS Sold only by the Superintendent of Documents, Government Printing Office Washington, D.C. 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Definitions and miscellaneous provisions. ............---.------------- (Uo BTW AT HO ‘ eos ihe sata ey ins } tained ae: atin x FISH LAWS OF STATES BORDERING ON MISSISSIPPI AND OHIO RIVERS: A DIGEST OF STATUTES RELATING TO THE PROTECTION OF FISHES AND OTHER COLD-BLOODED AQUATIC ANIMALS. By Emerson Strineuam, Assistant, U. S. Bureau of Fisheries. INTRODUCTION. In 1917 there was issued a digest of laws of Mississippi River States.¢ Thisis now revised to January 1, 1919, and extended to cover all States touching the Ohio River, thus taking in Indiana, Ohio, West Virginia, and Pennsylvania. Some additional information has been inserted because of repeated inquiries received during the past two ears. i In order to keep the pamphlet within reasonable bounds certain subjects have usually been omitted. These are: (a) Declarations that the title to fish and other wild animals is in the State. (b) Prohibitions against contamination of waters. The subject of pollution has been covered in a comprehensive manner by Public Health Bulletin No. 87 of the United States Public Health Service, entitled “Stream Pollution,” prepared by Stanley D. Montgomery and Earle B. Phelps. (c) Special provisions for counties and other subdivisions, except in some cases where they are evidently of interest to a considerable number of people. (d) Complicated details of restrictions on commercial fishing in some cases, though an effort has been made to indicate all laws on commercial fresh-water fishing. (e) Laws for salt-water fishing. (f) Penalties, administration, and procedure, including authority to arrest, seize unlawful implements, rewards for information as to violations, forgery of licenses, provisions for witnesses, limitations on times within which actions may be commenced, sale or destruction of things confiscated, and disposition of fines, fees, or other payments to officials. . (g) Requirement that licenses be available for exhibition to wardens at the time of fishing. (h) Laws against having prohibited tackle in possession and against having fish in possession smaller than the legal limit, or during closed seasons, or in excess of bag limit, or if caught unlawfully. These pro- visions are of the greatest importance as aids to enforcement, but ordinarily they do not interest the law-abiding citizen. a Emerson Stringham: Fish Laws of Mississippi River States. Report, U. S. Commissioner of Fish- eries for 1916, Appendix IV, document No. 840,16 p. 1917. 5 6 FISH LAWS OF MISSISSIPPI AND OHIO RIVER STATES. (1) Authorization for State officials to propagate and rescue fish or assist in stocking waters, or to take fish for scientific purposes. (j) Provisions declaring it a crime to remove fish from the nets of another. The omission of provisions as to administration is not due to a belief that these are of minor importance. Probably they are as well worth attention as the provisions for size limits and other matters. In most fields of legislation efficient administration is now recognized to be at least of equal importance with wise substantive provisions. But the question of administration is so different that it seems better not to attempt to combine it with this brief treatment of closed seasons and such matters. Of the 14 States under con- sideration only Illinois (25, 46), Minnesota (4761), and Pennsylvania (1903, act 92) have statutory provision for officials concerned exclusively with fisheries. For subjects not covered in this digest, for amendments made after 1918, and for the texts of the laws that are digested herein, the statutes, or the pamphlet copies thereof, may be consulted. Pam- hlets are prepared in each of these 14 States, except Mississippi. t is understood that they may be obtained from the following sources: Arkansas.—The game and fish commission, Little Rock. Illinois.—The chief game and fish warden, Springfield. Indiana.—The commissioner of fisheries and game, Indianapolis. Iowa.—The State fish and game warden, Spirit Lake. Kentucky.—The fish and game commission, Frankfort. Louisiana.—The department of conservation, New Orleans. Minnesota.—The State game and fish commissioner, St. Paul. Missouri.—The State fish commission, 3311 Chippewa Street, St. Louis. Ohio.—The chief warden, secretary of agriculture, Columbus. Pennsylvania.—The commissioner of fisheries, Harrisburg. Tennessee.—The department of game and fish, Nashville. West Virginia.—The forest, game, and fish warden, Philippi. Wisconsin.—The State conservation commission, Madison. This digest is based upon an examination of session laws and official or semiofficial compilations thereof. While the examination went to these sources in all cases, the references made by numbers in parentheses are to sections of the pamphlet copies of the laws issued by the State game departments, except in some cases where the year of enactment is given, and excepting Indiana and Mississippi; these numbers are the same as those given in the sources mentioned, except for Iowa and West Virginia. In the Indiana pamphlet most of the sections are without numbers, and references herein not other- wise indicated are to Burns’s Annotated Statutes (1914). Mississippi has no pamphlet edition of its game and fish laws, and references are to Hemingway’s Annotated Gsde (1917); the 1918 session of the Legislature of Mississippi did not make any amendments. I. STATE AUTHORITY IN INTERSTATE WATERS. It is a common belief among Mississippi River fishermen, in some localities, that the States have no authority to protect fish on that river because, in their expression, it is ‘‘a Government water.’’ The belief: is wholly without legal basis, and in those regions where the FISH LAWS OF MISSISSIPPI AND OHIO RIVER STATES. {i State wardens have diligently enforced the law the fishermen do not seriously entertain this opinion. It arises chiefly from laxity, past or present, on the part of State officials. : he Mississippi Haver is a ‘‘Government”’ river in the sense that uestions of navigation are subject to the jurisdiction of the Federal overnment. But it was long ago settled by the United States Supreme Court that the States may protect the fisheries of navigable waters. In the case of Smith v. Maryland (18 Howard, 71 (1855)) that court decided an appeal from a conviction for dredging oysters in violation of the law ot Maryland. The accused, Isaac R. Smith, owner of the sloop Volant, contended that the law of the State of Maryland was repugnant to that part of the United States Constitu- tion which grants to Congress the power to regulate commerce among the States. In that case not only were the operations carried on in the navigable waters of Chesapeake Bay, but the ship was enrolled and licensed by the United States to be employed in the coasting trade and fisheries. The court affirmed the conviction, maintaining that the State holds the property in the soil under the waters for the conservation of the public rights of fishery therein, and may regulate the modes of that enjoyment so as to prevent the destruction of the fishery. ‘‘In other words, it may forbid all such acts as would render the public right less valuable or destroy it altogether.” A later Supreme Court case, Manchester v. Massachusetts (139 U.S., 240 (1890)), was argued for the fisherman by one of the leaders of the bar—Joseph H. Choate. This eminent counselor said: ‘‘We do not question the right of the State to regulate its own fisheries within its own soil or tidewaters.’”’ He acknowledged that within the tidewaters there has been no grant of power over the fisheries to the United States; but he argued that the State had no jurisdiction upon the ocean, even within 3 miles offshore. The court, however, decided in favor of the State of Massachusetts, holding that the State possessed authority to prohibit the use of various kinds of nets in the navigable waters of Buzzard’s Bay. Quoting the language of the same court in an earlier opinion, it said: The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the State, which has consequently the right, in its discretion, to appropriate its tidewaters and their beds to be used by its people asa common for taking and cultivating fish, so far as it may be done without obstructing navigation. ; Whether the United States could make laws for the protection of fish in navigable waters is not settled by these cases. In the Man- chester v. Massachusetts case the court said: We do not.consider the question whether or not Congress wouid have the right to control the menhaden fisheries which the statute of Massachusetts assumes to control; but we mean to say only that, as the right of control exists in the State in the absence of the affirmative action of Congress taking such control, the fact that Congress has never assumed the control of such fisheries is persuasive evidence that the right to control then remains in the State. The Supreme Court of Iowa has held that its fish laws extend from bank to bank of the Mississippi. State v. Moyers (155 Iowa, 678 (1912)). The Supreme Court oF Wisconsin, on the contrary, has held that the laws of Minnesota for the protection of fish, control only to the main channel of that river. Roberts v. Fullerton (117 Wis., 222 8 FISH LAWS OF MISSISSIPPI AND OHIO RIVER STATES. (1903)). Whatever rule may finally prevail as to the right of a State to enforce its fish laws beyond the State line in rivers subject to con- current jurisdiction, there is no conflict as to its right to enforce these laws on that part of the river within its own boundary. It is clear from these decisions that, in the absence of legislation by Congress, the States have a complete right to provide fish protec- tive legislation for navigable waters. But it is not to be concluded from this that the National Government is wholly uninterested. The central authority is concerned with any question which affects the general welfare, and the food supply is certainly of this character. The United States Government is, moreover, specifically concerned with fishery resources for the reason that the Bureau of Fisheries lants millions of fishes and mussels in the waters of the different tates. Because of this interest the Bureau endeavors to assist in the task of securing both adequate development of aquatic products and their effective protection. As a war measure the Food Administration has licensed and regu- lated salt-water fishermen; but the State laws not in conflict with these regulations remained in effect. II. NAMES OF FISHES. As the same species or genus is given different names in different statutes, and even in the same statute, the names by which the fishes will be distinguished herein are listed, together with cross references from other names that are in common use or are found in the stat- utes. When a genus includes more than one species, all the species are often, perhaps usually, included under one English name, so that such names are commonly generic rather than specific, at least On the Mississippi River. Because of the infinite confusion in the use of these popular names it can not always be determined with certainty to what species or genus a statute refers. Care has been taken to be as accurate as possible under these circumstances. Alewife. Pomolobus Rafinesque, all | Bass, willow. See Bass, black. American species. Barfish. See Bass, striped. Bass. Sometimes means black bass and striped bass, and sometimes appears to include other species also. Bass, black. Micropterus Lacépéde, both species. Bass, calico. See Crappie. Bass, gray. See Bass, black. Bass, green. See Bass, black. Bass, largemouth. Micropterus sal- moides (Lacépéde). See Bass, black. Bass, Oswego. See Bass, black. Bass, rock. Ambloplites rupesiris (Ra- finesque), and probably Chxenobrytius gulosus (Cuvier and Valenciennes). Bass, silver. See Bass, striped; Crap- pie. Bass, smallmouth. Micropterus dolo- mieu Lacépéde. See Bass, black. Bass, strawberry. See Crappie. Bass, striped. Roccus chrysops (Rafin- esque) and Morone interrupta Gill. Bass, white. See Bass, striped; Crap- pie. Bass, yellow. See Bass, striped; also Bass, black. Billfish. See Gar. Black-fin. See Cisco. Bluegill. See Sunfish. Bowfin. Amiatus calvus (Linnzus). Buffalofish. Jciiobus Rafinesque, all species, -and probably Carpiodes Ra- finesque, all species. Bullhead.