| Mass. | Nov 28, 1893
There are two questions in this case, namely, whether the defendant’s act was within the true meaning of the
1. The defendant contends that the penalty imposed by Pub. Sts. c. 91, § 53, for selling trout, does not extend to the sale of trout which have been artificially propagated and maintained. Whatever force this contention might have if § 53 stood alone, a reference to other sections of the same chapter, and to the history of this legislation, makes it clear that such trout are not exempted. The chapter contains many provisions for the protection of trout and other useful fishes, and amongst them are those for the encouragement of their artificial propagation and maintenance. No question is made that § 53 is applicable to all other protected trout, except such as have been artificially propagated or maintained; as, for example, to trout found in such small or great ponds and such streams as are specially protected by the provisions of §§ 10,12, 14, 23, 24, and 27. By § 26 it is provided that “ fishes artificially propagated or maintained .shall be the property of the person propagating or maintaining them; and a person legally engaged in their culture and maintenance may take them in his own waters at pleasure, and may have them in his possession for purposes properly connected with said culture and maintenance, and may at all times sell them for these purposes, but shall not sell them for food at seasons when their capture is prohibited by law.” A close season for trout was fixed by § 51, which has since been changed by St. 1884, c. 171. Section 53 by its terms imposes a penalty upon every person who “ sells or offers or exposes for sale or has in his possession a trout,” except alive, during the close season. Statutes have long existed restricting the modes of taking trout; but the first provision making their sale punishable is found in St. 1869, c. 384, § 28. This, after modifications in St. 1874, c. 186, and St. 1876, c. 221, § 1, was re-enacted in Pub. Sts. c. 91, § 53. The object of all these statutes was to protect and preserve the trout. The same statute which first forbade their sale also contained the provisions upon which the present statute is founded, to encourage their artificial propagation and maintenance. In order to make the protection of the trout more effectual, it was deemed necessary by the Legislature to punish the sale, during the close season, of all trout except those which are alive. This was prob
2. Nor have we any doubt that the statute is constitutional. The importance of preserving from extinction or undue depletion the trout and other useful fishes in the waters of the Commonwealth has been recognized and illustrated in many familiar statutes and decisions from an early time. Such protection has always been deemed to be for “ the good and welfare of this Commonwealth,” and the Legislature may pass reasonable laws to promote it. Such laws are not to be held unreasonable because owners of property may thereby to some extent be restricted in its use. It has often been declared that all property is acquired and held under the tacit condition that it shall not be so used as to destroy or greatly impair the public rights and interests of the community. Many illustrations might be cited where such restrictions on the use of property have been held valid. But the cases are familiar. The limitation is, that the restrictions must not be unreasonable. The Legislature may “ make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth.” Const. Mass. c. 1, § 1, art. 4. The Legislature may forbid the catching or selling of useful fishes during reasonable close seasons established for them; and to extend the prohibition so as to include such as have been artificially propagated or maintained is not different in principle from legislation forbidding persons from catching fish in streams running through their own lands. The statute under consideration falls within this power. Commonwealth v. Look, 108 Mass. 452" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/commonwealth-v-look-6416676?utm_source=webapp" opinion_id="6416676">108 Mass. 452. Commonwealth v. Alger, 7 Cush. 53, 84, 85. Commonwealth v. Tewksbury, 11 Met. 55, 57. Cole v. Eastham, 133 Mass. 65" court="Mass." date_filed="1882-05-15" href="https://app.midpage.ai/document/cole-v-inhabitants-of-eastham-6420630?utm_source=webapp" opinion_id="6420630">133 Mass. 65. Rideout v. Knox, 148 Mass. 368" court="Mass." date_filed="1889-01-04" href="https://app.midpage.ai/document/rideout-v-knox-6423009?utm_source=webapp" opinion_id="6423009">148 Mass. 368. Blair v. Forehand, 100 Mass. 136" court="Mass." date_filed="1868-10-15" href="https://app.midpage.ai/document/blair-v-forehand-6415463?utm_source=webapp" opinion_id="6415463">100 Mass. 136. Phelps v. Racey, 60 N.Y. 10" court="NY" date_filed="1875-02-02" href="https://app.midpage.ai/document/phelps-v--racey-3588376?utm_source=webapp" opinion_id="3588376">60 N. Y. 10.
Verdict to stand.