The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1908-05-23
FISH WARDEN MAY
SEARCH BASKETS
FOR Shorts
Fishermen Who Resist Liable
to Arrest.
OPINION OF ATTY GENERAL
Refusal to Exhibit Catch Sufficient
Evidence That Fisherman Is
Violating Six.lnch Law.

over the right Of fish and game war
dens to search the baskets Of fisher
men for short trout an opinion has
been obtained from Attorney General
&c. G. Fits. In this opinion the right
Of wardens to inspect the baskets Of
fishermen and to arrest fishermen
who refuse TO disclose the contents
Of their creels Is fully established.
The opinion is embodied in letter to
Fish and Game Commissioner III. G.
Thomas and is AS follows:
Brattleboro. May 10, 1908.
Hon. II. G. Thomas.
Fish & Game Commissioner,
Stowe, VT.
Dear Sit
have yours of May 18th, 1908, en-
closing letter from County Warden
Chase of Bennington County, and ask.
Ing my opinion as to the right of the
County Warden to arrest without
warrant person supposed to have
violated any of the provisions of chap
Ter 900 z. s.. and also asking my
opinion as 10 the right Of the warden
to search the person and the recep,
tacle carried by the person supposed
% have broken the law.
Sec 5275 =. s., makes 1t an offence
10 catch and retain a trout less than
| six inches IN length or to have In
ones possession such a trout. And by
he same section the possession Of
my such fish Is made prima facie
evidence that the same are taken
or caught from the waters of this
state.
BY sec. 527l p. s., County or Deputy
Fish wardens may arrest on view
a person found violating a provision
Of this chapter" The fundamental
basis for legislature of this character
is upon the principle that fish and game
belong to the state and that private
person may take the same only under
the regulations made by the state.
Therefore, 1t follows that no one gets
any title to the trout less than six
inches long for the reason that the
state does not permit him to catch
and retain such a fish. II is really the
property Of the state and no person
has right to retain In his possession
such fish.
The Supreme court of this state In
the case Of Sheets VS.. Anterior, 62 VT,
at page 2S4 discusses at length the
statute which Is the antecedent OF
sec. 527l p. S. According to the
authority of the case cited 1t is clear
hat the warden may arrest without
warrant person found violating
any of the provisions of the fish and
game law. So advise that any Coun'
Ity or Deputy warden may arrest with
out warrant any person found VIC
lating" any OF the provisions of the
ish and game law. .
The next question is how much in
formation must the warden have to
warrant his making an arrest without
II warrant Here applies the gener
II principle of law applicable to ar
rests without warrant. That rule may
De generally stated in this way, tina,
he officer may arrest without war
rant whenever he has reasonable
cause to believe that the person ar
rested is violating the law. II will be
loted that under sec.5271 p. S. the
light to arrest is only in case a per
ION is found violating" provision oil
he law. But II person has In his
possession trout less than six inches
ong. he Is, all the time he has them In
lis possession, violating the provis
ions of sec. 1915 p. S. Therefore II
iollows that ii the warden has reason
,ble cause to believe that a person
has in his possession trout less thar
six inches long, he may. under tn,
authority of Sec. 5271 arrest him with
. out warrant.
The application of this law must b,
made. In view of the nature of tn,
crime itself and in view of the mean!
If securing evidence showing the com
mission Of crime, for II the wardei
could not arrest man personally un
til he was certain that he had in hi
possession trout less than six inches
ong. it would practically nullify tn,
! aw, for anybody breaking the Law
will naturally conceal his offence.
believe that II the warden disclosing
Ihis Office. sees a person under sucl
circums kices as to indicate that tn,
person Is In the possession of trou
= caught In the waters of this state, tina
is, II he sees him coming from n brool
! with fish basket over his shoulde
: and fish rod in his hand, he has tn
right to ask that person to show hin
the contents of the basket and to shoy
> him all the fish in his possession.
believe that the refusal Of such pei
lsons to show the fish he has is groun
for the warden to reasonably believ
that the person has In his possession
|. fish which he has no right to have.
o is my opinion therefore that II tn
d warden properly discloses his ofIic
2 nd asks the person under such circum
II stances to show his fish, and that pc
son refuses. that the warden ther,
ed upon has the right to arrest such pc
r. son without warrant.
o The supreme court has never quit
gone that far. In fact, the question ha
G. not clearly come up, so far as / al
5. able to learn In just that way, but m
st deductions from expressions of III
Court In other cases, and applying Il
c. general rules of law which apply
such cases, lead me TO the opinion {
I; above expressed Now as to the right
search q person. No officer has a rlgl
m to search any person until that persc
re Is in the custody Of the law. The wa
den has no right to put his hands upC
m a person for the purpose Of search
Id can only put his hands upt
a person to arrest him. When once