51 S.E. 992 | N.C. | 1905
CONNOR and WALKER JJ., dissenting. The General Assembly of 1905 enacted chapter (220) 292, "To regulate fishing in Albemarle and Pamlico sounds and waters connected with them." The first five sections of that chapter define and regulate the manner of fishing in various sections of the sounds. Section 6 (marked 5 in the printed act) is as follows: "That it shall be unlawful for any person to set or fish any net or appliance of any kind for catching fish within one mile on north or south side of a line five miles long, running west from center of New Inlet or Oregon Inlet, *192 or on north or south side of a line five miles long, running northwest from center of Hatteras Inlet." Section 7 makes the act operative only from 15 January to 15 May in each year — a "close" season of four months. We were told on the argument, and it was not controverted, besides it is a matter of common knowledge, that no small part of the sustenance and business interest of the people living adjacent to Albemarle and Pamlico sounds and the waters connected therewith, are dependent upon catching fish, whose supply has so greatly decreased that the United States Government has established and is operating at large expense, a fish hatchery at Edenton for the purpose of putting into the waters of Albemarle Sound millions of young shad and other fish each year, to replenish the diminishing supply; that the habit of the fish is to go out to sea and at the end of three years they return to the waters where they were liberated for the purpose of spawning, and that if nets are set across the inlets through which they return, the fish are either caught or detained beyond the spawning season and the supply of fish in Albemarle and Pamlico sounds and connecting waters will be thereby almost entirely destroyed and the Government hatchery at Edenton will become a useless expense and will doubtless be abandoned.
With a view of protecting the rights of the public against the cupidity of those who for their own profit would "kill the goose that lays the golden egg" for the benefit of a whole section of the State, whose (221) people are so largely interested in the fish industry, the General Assembly of 1905 enacted the above named chapter, creating a close season of four months during which the fish may freely return to our waters to lay their eggs, and for the purpose of enforcing its execution, when the profits arising from its violation would be a great temptation thereto, deemed it necessary to enact sections 8 and 9 of said act as follows: "Sec. 8. That any person who shall violate any section or provision of this act shall be guilty of a misdemeanor, and upon conviction in any county opposite the place at which said act is done shall be fined or imprisoned at the discretion of the court."
And inasmuch as pending trial and conviction, the destruction of the fish would go on to the great profit of the violators and to the irreparable injury of the public, the General Assembly thought proper to add to the abatement of the nuisance the penalty of the less of the nets — the means by which the law was violated — in the following: "Sec. 9. That it shall be the duty of the Oyster Commissioner, or Assistant Oyster Commissioner whenever an affidavit is delivered to him, stating that affiant is informed and believes that said act is being violated at any particular place, to go himself or send a deputy to such place, investigate the same, and they shall seize and remove all nets or other appliances *193 setting or being used in violation of this act, sell the same at public auction, and apply proceeds of sale to payment of costs and expenses of such removal, and pay any balance remaining to the school fund of county nearest to where offense is committed."
An affidavit by fourteen citizens having been made 25 March, 1905, that B. T. Daniels was violating the aforesaid act by setting two nets in the waters of Pamlico Sound at the end of Croatan Sound, and also east of Roanoke Marshes Light House (where the fish returning to the sound through Hatteras Inlet would be caught during the "close" season provided by law), the defendant, the Assistant Oyster Commissioner, notified said Daniels that he would seize said (222) nets on 1 May, which nets were in water where the aforesaid law prohibited the setting or fishing said nets (as the plaintiff admits), and against the protest of said Daniels, did take said nets out of the water and placed them on shore under guard, whereupon this proceeding for claim and delivery for the nets was instituted. The defendant avowed his purpose to sell the said nets and apply the proceeds to the cost of seizing and removing the same, and apply the surplus of the proceeds, if any, to the school fund of the county as provided by said act.
There is no individual or property right to fishery in the waters mentioned in the act. The right of fishery, as well as hunting, rests in the State, and is subject absolutely to such regulations as the General Assembly may prescribe, and can be exercised only at such times and by such methods as it may see fit to permit. Hettrick v. Page,
The plaintiff contends that though his property is admitted by him to have been used in violation of law at the time of seizure, that the statute imposing as a penalty the loss of such property is unconstitutional in that there was no previous notice and trial. But as the General Assembly could prescribe the loss of the nets as a penalty, and the offense is admitted, there is nothing to try. As was said in Rea (223) *194 v. Hampton, 101 N.C. at p. 55, "As the Legislature had the undoubted right to regulate the manner in which the right of fishing in Albemarle Sound should be exercised, the plaintiffs had no right to fish in its waters in any mode not allowed by law. The facts found show that they were fishing in violation of law, and it would be singular if they could ask thelaw to protect them in its violation." In Rose v. Hardie,
But the plaintiff contends that he might not have been using his nets in forbidden water, and if so, he was entitled to have that question determined by a jury trial before his nets were sold. As the plaintiff admits that his nets were so being used on this occasion, the proposition becomes a mere academic question in this case. In view, however, of the importance of the matter being settled, and in accordance with the wishes of the parties, we pass upon the legal point raised.
It was not seriously controverted, and could not be that an abatement of a nuisance must be summary and that a seizure can take place before any adjudication by legal process, the party having his remedy by proper proceedings for an illegal seizure. In Hettrick v. Page,
But the plaintiff insists that before his nets are sold he is entitled to have the fact determined, by a court, whether he has incurred the penalty by doing the illegal act. So he has, but it can be asserted in this very action to recover the nets before sale, or after sale by an action to recover the proceeds of sale or damages, or upon advertisement of sale, an injunction to prevent the sale. He has his full remedy, but it does not include a continuance of the nuisance to his individual profit and the public detriment while the question of violation of the statute is being determined. The identical point has been determined, and by courts of the highest authority. By a statute in New York, very similar *195
to ours, passed in 1880, fishing at certain places was prohibited and made punishable as a misdemeanor. This not proving sufficiently effective, an amendment in 1883 authorized any person to "abate and summarily destroy," and it was made the duty of any game constable to "seize, and remove and forthwith destroy" any "net, pound or other means or device for taking or capturing fish" in violation of any law, then or thereafter enacted, for the protection of fish. In the Court of Appeals of New York, Lawton v. Steele,
The U.S. Supreme Court (
Our Code, sections 1049, 1051, 1052 authorizes any police officer, constable, sheriff, justice of the peace, to summarily destroy any gaming table, etc., and the seizure of any money staked (which is not a nuisanceper se, any more than the fishing net), one-half to belong to the person seizing it, and the other half to the poor of the county. This is cited byDick, J., in North Carolina v. Vanderford, 35 Fed., 286, in sustaining the summary seizure and destruction of a barrel of "blockade" whiskey, and a similar statute was held constitutional. Garland v. State,
Certainly gambling in the back room of some village hotel, or private house, or stable loft, is not as injurious as the destruction of the fishing industry, upon which depends to a large extent the prosperity of twenty counties, and whose importance has attracted the attention of the Federal Government and caused a large expenditure to restore the depleted stock of fish, an expenditure which would be in vain if the General Assembly is powerless to authorize the prompt abatement of fishing nets at the inlets during the months when the fish return to lay their eggs, or to authorize such penalties, including the forfeiture of the nets illegally used, as the representatives of the people may deem necessary to suppress the nuisance.
The same ruling, as in Lawton v. Steele, supra, was made in Wisconsin, in a very able opinion by Cassoday, C. J. (1896), Rittenhaus v.Johnston, 32 L.R.A., 380. Lawton v. Steele has been recently quoted and followed. Burroughs v. Eastman,
As to the nets, the plaintiff (had he not admitted his violation of law) without detriment to his rights could have contested the allegation that *197 the nets had been set within the forbidden limits or that they had been so used with his consent, or set up any other defense, in this proceeding of claim and delivery, or by an injunction to prevent a sale, or by action to recover the proceeds of sale and damages. On the other hand, the General Assembly had the power to authorize prompt abatement of the nuisance by seizure and sale of the nets, subject to the right of their owner to contest the fact of his violation of the law, by this, or any other of the remedies just enumerated.
As against the person actually creating the nuisance, it may be abated without notice. Jones v. Williams, 11 M. W., 176; Garrett on Nuisances, 314. Such is the law, recognized even as far as India. Ratanlal Dharajlal Eng. Indian Law of Torts, 403. Besides in this case, notice was actually given before removing the nets, and the plaintiff neither removed nor offered to remove his nets from the forbidden waters, though given the opportunity to do so by the notice given him by the defendant. The plaintiff has had his day in court by this very proceeding in claim and delivery and the nets are not yet sold. It is no deprivation of any right that he is the actor, the plaintiff, since (as the United States Supreme Court said in Lawton v. Steele, supra) the burden is on the defendant to justify the seizure. It is not a question of right but merely as to the form of legal procedure, whether the violator of the statute shall be plaintiff or defendant in the action, and as to that surely the Legislature is the judge.
As was said in S. v. Lytle,
If the nets cannot be forfeited, then by having two sets of nets the plaintiff can replace his nets as fast as the officer carries the other off, and then in turn put in the first net when the second is seized. Thus the attempt to abate the nuisance would become a mere farcical race between the violator and the officer of the law. There is no analogy between the prompt seizure of property when required by reasons of public policy, when the rightfulness of such seizure can be afterwards investigated, and if wrongfully taken the article can be recovered or damages therefor, and the taking of human life which cannot be restored.
In the exercise of the police power, the General Assembly is not restricted to indictment, but may proceed by the summary process of abatement of the nuisance and imposing as a penalty the forfeiture *198 or destruction (as it may deem best) of the article illegally used. An act of the Legislature, which speaks for the people in making its laws, is "the law of the land" unless there is a provision of the Constitution which forbids it to enact such law. We look in vain in that instrument for any provision which forbids legislation in furtherance of the police power, authorizing summary process of seizure of nets and their forfeiture when used in open violation of law. The right of seizure and destruction of the nets is not seriously denied. For a stronger reason then the alleged violator of the law cannot complain of the "sale at public auction" as that presupposes advertisement and delay, during which time, he can (as was done in this case) bring claim and delivery and recover the nets, if not used illegally; whereas if summarily destroyed, his sole remedy is an action for damages. He is in better case (229) than if the nets were destroyed. In either event, if he is proven to have used the nets illegally, he loses the nets, and it can make no difference to him whether they are destroyed or sold. The State is not compelled to commit an act of vandalism to be constitutional. It has found the criminal law an inefficient protection and that deprivation of the nets is necessary to prevent the violation of the law. The owner of the nets has his day in court to contest the fact of violation, by an action for damages if nets are summarily destroyed, and the additional remedy of claim and delivery if to be sold at public auction. He has nothing to complain of.
Our steady increase in population renders imperatively necessary the strict enforcement of all measures intended to protect or prevent interference with the sources of food supply for our people. The sovereign people of the State are in a bad case if they cannot protect the great fishing industry by providing that those who would destroy it by nets set at forbidden and vital places, during the four months prescribed, shall forfeit their nets. The General Assembly has found, and so says by its statute, that this remedy is necessary to enforce the execution of the law. Unless this is done the State is in fact utterly powerless to protect that large part of its people who are engaged in or dependent upon the great fish industry in its sounds and along its rivers, and the lawless element who disregard the law forbidding setting of nets, is exempt from control. The Constitution not having forbidden the Legislature to provide for the destruction or forfeiture and sale (as it may deem best) of nets illegally used, and the owner of the nets having his day in court, either by an action of damages or claim and delivery, this Court has no supervisory power to hold that either the destruction of the nets or their forfeiture and sale is the remedy which the Legislature must provide. That is a matter for its judgment. It may prescribe either remedy or *199 both, and change it by subsequent enactment. The owner, if violating the law, has suffered a just punishment. If not violating it, he has his full remedy in court to recover the nets or damages as he (230) may elect.
In the same way the State takes property under the right of eminent domain and turns it over to a railroad corporation which pays for it afterwards. And this is for the same reason that if litigation must be had and terminated before the taking, it would seriously impair the benefit intended by the exercise of the powers of the State for "the greatest good to the greatest number." For the same reason the United States statutes for the enforcement of the Internal Revenues, secs. 3455, 3457, forfeit articles not lawfully stamped, or stills, etc., illegally used, direct them to be sold and the proceeds paid into the Federal treasury, unless before sale the owner shall proceed, as here, by action to recover the articles on the allegation that there was no illegal user.
There are other United States and State statutes imposing forfeitures. Section 3460, U.S. Rev. Stat., provides that where the value of the property seized is less than five hundred dollars, the property shall be advertised and sold, and the proceeds paid into the treasury, unless the owner (as in this case) comes in and by action asserts his rights. Conwayv. Stannard,
Such laws are not to be construed strictly, but reasonably, so as to carry out the intention of the Legislature. U.S. v. Stowell,
As was well said in Weimer v. Bunbury,
The Supreme Court of the United States, 12 U.S. (8 Cranch), 404, says in this connection: "In the eternal struggle that exists between the avarice, enterprise and combinations of individuals on the one hand, and the power charged with the administration of the laws on the other, severe laws are rendered necessary to enable the executive to carry into effect the measures of policy adopted by the Legislature. To them belongs the right to decide on what event a divesture of right shall take place, whether on the commission of the offense, the seizure or the *201 condemnation. In this instance, we think that the commission of the offense makes the point of time on which the statutory transfer of right takes place."
No error.