83 Me. 207 | Me. | 1891
This is trespass against the defendant for taking and selling twenty-eight barrels of lobsters. The title of the plaintiffs is not questioned; but the defendant admitting the taking and conversion, claims to justify as a fish and game warden ; that he made the seizure as such on the ground that there were some short lobsters in each barrel which it was his duty to liberate as provided in Act of 1889, c. 292, § 5. He justifies the taking and selling of the lobsters of lawful length, legally taken, by virtue of Act of 1887, c. 144, § 6.
Two objections are made to the validity of the defendant’s justification. 1, That § 6 of the Act of 1887 was repealed by the Act of 1889, above cited. 2, If not repealed, section 6 of the Act of 1887 is unconstitutional.
Applying these rules to the case at bar, we think it clear that the statutory provision under which the defendant claims to justify was repealed by the Act of 1889. The Act of 1887 is entitled, " An Act for the better protection of the Lobster Fisheries.” It takes the place of the provisions of N. S., c. 40, upon the same subject. The Act of 1889 is entitled, "An Act for the regulation of the Lobster Fisheries.” It embraces the same subject-matter as the Act of 1887. It omits some of the provisions of that Act, and adds some new provisions. The Act of 1887 establishes a close-time for taking lobsters from the first day of August to the fifteenth day of September. The Act of 1889 omits that provision. The first Act makes it unlawful to buy, sell, expose for sale, or possess any lobsters less than ten and one half inches in length, measured as therein provided, during the year. The second Act contains the same inhibition from the first day of July to the next May, but makes it lawful to catch, buy, sell or expose for sale, or possess for any purpose lobsters nine inches and more in length, during May and June.
Section six of the first Act, under which the defendant claims to justify provides, that "in case of seizure, by airy duly authorized officer, of any barrels, boxes, or other packages in transit, containing lobsters less than the prescribed limit in length, such lobsters as are alive and less than the prescribed limit shall be liberated, and all such lobsters as are of the prescribed length found in such barrels, boxes or packages, in the season for legal fishing for lobsters, shall be forfeited, and sold by the officer making the seizure thereof, at such time and in such manner as shall by him be deemed proper;” but gives to the owner the right to appear within twenty-four hours from the time of seizure and redeem them by paying to the officer a
Section five of the second Act is as follows: "All barrels, boxes or other packages in transit containing lobsters shall be marked with the fall name of the shipper, and in case of seizure by any duly authorized officer of any barrels, boxes or other packages, in transit containing lobsters, which are not marked by the full name of the shipper, or in case of' seizure by such officer, of barrels, boxes or other packages in transit, containing lobsters of less than the required length, such lobsters as are alive and less than the prescribed length shall be liberated.”
It will be seen that section five in the Act of 1889 covers the same subject-matter embraced in section six of the Act of 1887, omitting the provision for the forfeiture of the lobsters of the required length, and embracing the new requirement of marking the barrels, boxes, &c., by the name of the shipper. We think this must be taken as the last declaration of the will of the legislature.
The same rule of construction is declared by the court of Massachusetts, in Commonwealth v. Kelliher, 12 Allen, 480.
This determination of the first point, in contention against the defendant, renders it unnecessary to consider the second.
jDefendant defaulted. Damages to be assessed at Nisi Prius.