State v. GilesState v. Giles
- Reporters:
- , ,
- Before:
- Whitehouse
This is а complaint against the defendant for having in his possession fourteen cooked lobsters each less than ten and one half inches in length measured in the manner prescribed by *351statute. Tlie сomplaint is signed by Charles E. Sherman, a private citizen, and is based on section seventeen of chapter 41 of the Revised Statutes.
After verdict of guilty and before sentence, the defendant filed a motion in arrest of judgment on the ground that a private citizen has no right or authority to institute a prosecution by signing á complaint for the violation of the laws relating to sea and shore fisheries; that no magistrate has authority to issue a warrant on such a complaint or authority to hear, try and convict upon such a process.
Inasmuch as the general supervision of sea and shore fisheries is conferred upon the Commissioner, and the duty of enforcing all laws relating thereto is expressly enjoined upon the Commissioner and fish wardens and all violations of such laws may be settled by the Commissioner upon such terms as he deems advisable, it is contended in behalf of the defendant that only the Commissioner and such officials as are thus qualified by bond and oath to aid him, аre authorized to make complaint for the purpose of instituting prosecutions.
It is obvious that a construction involving such a distinct departure from the general policy of the state rеspecting the enforcement of its laws, should not be accepted as the correct one unless imperatively required by the express terms of the statute or by its manifest implication whеn considered in the light of its history and its relations to other similar statutes.
Prior to 1885 the interests of both the sea shore fisheries and of inland fish and game had been entrusted to the supervision of the same board consisting of two commissioners, but by chapter 275 of the public laws of that year, provision was made for the appointment of a third commissioner who should “have general supervision оf the sea and shore fisheries and shell fish therein specified, the method of enforcing the laws relating to both classes of fisheries being left unchanged.
But section 6 of chapter 292 of the Laws of 1889 relating to lobster fisheries provided as follows: “All fines and penalties under this act may be recovered by indictment or action of debt, brought by any person, and together with all forfeitures, shall bе paid into the county treasury in the county where the offense is committed.”
In 1897 the legislature codified the laws relating to sea and shore *352fisheries under chapter 285 of the public-laws-of that yеar, and by section 48 of the same chapter provided for the enforcement of these laws as follows:
“ All fines- and penalties under this act may be recovered by complaint, indictmеnt or action of debt made or brought by any person in the county where the offense is committed, and shall--be paid into the treasury of the county’ where the offense is committed, and by such treasurer to the state treasurer, to be added and made a part of the appropriation for sea and shore • fisheries.”
But in 1899 (chapter-81 of -the public laws) the provision of the act of 1897 respecting the recovery of fines was amended so as to read as follows: • •
“All fines and penalties under this act may be recovered by complaint, indictment or action of dеbt, brought in the county where the offense is committed. The action . of debt shall be brought in the name of the.commissioner of sea and- shore fisheries, and all offenses under, or violation of the-provisions of this-statute may be settled by the commissioner of sea-and shore fisheries upon such terms and conditions as he deems advisable.” Under section 48 of the act of 1897-above quoted, the action of debt could be brought “by any person” but experience had shown that this was no longer necessary or desirable. It was therefore provided by this amendment -that the action of debt should be brought in the name of the commissioner. With a distinct declaration to this effect respecting the action of debt, the first sentence in section 48 of the act of 1897 could consistently stаnd only by striking out the words “by any person.” This was obviously found to be the most convenient method of effecting the desired change. It was not necessary that these words should be retained after a separate provision was made for the action- of debt. Express provision of the statute was- not required to authorize unofficial persons-to‘-make a complaint before a mаgistrate. It is a rule of the common law of immemorial origin that in the absence of statutory requirement to the contrary, all. such complaints • may be made-by any person- who can legally be- a witness and who has knowledge- or information of any violation of the criminal law. 1 Bishop Cr. Proc. section 896. The-words- “by any person” could *353be dropped with impunity, without affecting the procedure by complaint or indictment.
Furthermore if it had been the intention of the legislature to provide by this last amendment that all prosecutions under that chapter whether by complaint or indictmеnt or action of debt should be instituted by the Commissioner or a fish warden, it is remarkable that it should have made explicit provision for the action of debt alone and made no allusion whatevеr to the complaint or indictment in that connection. Expressio unius exclusio alterius.
This view is strengthened by a comparison of the provisions of chapter 41 in question with those of chapter 32 relating to inland fish and game. Section 52 of the latter chapter provides that “the commissioner and every warden throughout the state and every sheriff and constable in his respective county shall enforce the provisions of this chapter”; and section 53 declares that “any officer authorized to enforce the inland fish and game laws may recover the penaltiеs for the violations thereof in an action on the case in his own name . or by complaint or indictment in the name of the State.” But these provisions enjoining upon the several officers nаmed in section 52 the duty of enforcing the laws, and authorizing the officers named in section 53 to recover the penalties as therein specified, have never been construed to cоnfer upon these officers the exclusive authority to make complaints before magistrates.’ The right of the citizen who has knowledge of the commission of’an offense, to appear before a magistrate and make a complaint against the guilty party, has never been denied by reason of any of the provisions of chapter 32.
In like manner the sheriffs and their deрuties, municipal officers and constables are expressly commanded in chapter 29 of the Revised Statutes, to be diligent and faithful in enforcing the numerous provisions of that chapter аgainst the illegal keeping and illegal sale of intoxicating liquors; but no citizen having knowledge of the violation of any of the provisions of that chapter has ever been denied the privilege of making a complaint therefor before a magistrate, and no court having jurisdiction of the matter has ever refused to entertain such a complaint because not made by оne of the officials mentioned.
*354But there are. special considerations suggested by two of the sections of chapter 41 which tend further to illustrate the improbability that the legislature could have designed .to restrict the method of enforcing the provisions of the act in the manner claimed by the defendant.
Section 40 declares that “No person shall set any net or seine within five hundred feet of the mouth of any weir under a penalty of fifty dollars;’.‘’ and section 37 relating to the planting of oysters provides that: “ Whoever trespasses upon such enclosure or injures such оyster beds, is liable in an action of trespass for all damages; and if he takes away any oysters therein without the consent of the owner, he shall forfeit not less than twenty nor more than fifty dollars, оr be imprisoned not exceeding three months.”
In a certain class of cases in which the criminal and civil departments of the law appear to be blended, the incentive arising from the griеvance of a private wrong, which in some degree actuates the complainant to demand a public prosecution of the guilty party, is recognized as a potent factоr in the prompt and efficient administration of the law, and the absence of such a motive is always found to be a serious obstacle in the enforcement of sumptuary and kindred statutes. So with rеference to the sections of chapter 41 last quoted no valid reason is apparent why a private citizen whose fishing privilege or oyster bed is imperilled by the public wrong of his neighbоr should be deprived of the right to take prompt measures to prevent the .injury by making a complaint therefor in his own name. He should not be compelled to await the convenience of the Commissioner or his deputy for the commencement of a prosecution.
From this brief history and comparative analysis of the sections quoted from chapter 41, the conclusiоn is irresistible that the legislature never intended by any of those enactments to confer upon the Commissioner and his deputies or the fish wardens, the exclusive right to make complaints before magistrates for violations of the provisions of that chapter or to oust the court of its jurisdiction of such complaints when thus made and preferred.
The entry must therefore be,
Judgment on the verdict. Exceptions overruled.