23 Conn. 128 | Conn. | 1854
One of the questions, and the most important, presented in this case, is, as to the validity of the by-law on which this action was brought.
The plaintiffs were incorporated as a borough, in 1831, with the power, among others, of making by-laws, and enforcing them by penalties, relative to the improvement and preservation of the shell and scale fisheries within the limits of the borough. In 1842, and previous to the making of any by-law on this subject, the present general statute was enacted, by which it was provided, (with certain qualifications not applicable to the case before us,) that every person, who should, from the first day of March until the first day of November, in each year, take, gather, or collect, any oysters, or oyster-shells, in or upon any of the flats, creeks, banks, rivers, harbors, or waters of this state, should be punished by fine or imprisonment, or both, as therein prescribed. In 1848, the by-law, on which the present action was brought, was passed, by which it was ordained, that if any person
We attach no importance to the circumstance, that the by-law was made after the passing of the general law, but, on the question of its present validity, consider it as standing on the same ground as if it was passed before the latter. If the effect of such general law would have been to suspend or abrogate, to any extent, the by-law, if it had been previously passed, its effect would plainly be to render it, if subsequently passed, nugatory to the same extent.
Conceding, (what indeed we see no reason to question,) that this by-law was one which, under the charter of the plaintiffs, it was competent for them to make, previous to the passing of the general law, we have no doubt of the power of the legislature to pass such general law, notwithstanding the power previously given to the borough to pass said by-law; and we are also of opinion that when such general law was enacted, it superseded the power which had been so given to the borough, and suspended or abrogated it, so far as the general law prohibited and punished the same act, which was prohibited and punished by such by-law. It has not been, and could not with any plausibility be, claimed that the legislature, by giving to the borough power to make this by-law, precluded itself from enacting any general law on the same subject. There was clearly nothing in the grant of that power to the borough which was in its nature irrevocable, so that the legislature could not afterward limit or
The result to which we have come, on this point, renders it unnecessary to examine the other objections which have been made to the declaration; and the superior court is advised, that there is no error in the judgment complained of.
In this opinion the other judges concurred.
Judgment affirmed.