84 Vt. 429 | Vt. | 1911
This case is here on demurrer to the complaint charging that the respondent at Wolcott'(the alleged'place of his residence) in the county of Lamoille, on the 14th day of March, 1910, he then and there being the operator of a mill, did by himself and his agents, deposit and suffer to be deposited,
The complaint is based upon No. 211, of the Laws of 1908, entitled “An act relating to the pollution of the waters of the Lamoille River”. Section one reads: “An owner or operator of a mill, who, by himself,or agents, deposits or suffers to be deposited, any sawdust, shavings or mill refuse in the waters of the Lamoille river or in its tributaries above Cady’s Falls in the town of Morristown, shall be fined not less than twenty dollars nor more than one hundred dollars, for each offence.”
The respondent contends that no crime is charged in the complaint, because (he says) the statute is partial, unreasonable, and discriminates against citizens owning certain kinds of property, without regard to its location, and hence it is in contravention of the 14th amendment of the Constitution of the 'United States, and of articles 1 and 7 of the Constitution of the State.
The legislative exercise of the police power must be reasonable, and whether it is reasonable in the particular instance is a question ultimately for the court. State v. Speyer, 67 Vt. 502, 32 Atl. 476, 29 L. R. A. 573; State v. Dodge,76 Vt. 197, 56 Atl. 983. Other than as appears from the title, the act contains nothing showing the real purpose or policy of the enactment; and the title is not very significant in that respect, for it is without anything indicating the mischief intended to be remedied: whether the inhibition is for the protection of the public in the use of the water for domestic purposes, or in the preservation of the fish therein. However, some things are judicially known by the Court. In Heyden’s Case, 3 Co. Rep. 7a, 14 Eng. Rul. Cas. 816, decided in 1584, it was resolved by the Barons of the Exchequer, that for the sure and true interpretation of all statutes in general four things are to be discerned and considered: “1st. What was the common law before the making of the act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the Parliament hath resolved and appointed, to cure the disease
By the common law, fish, being ferae naturae, are the general property of the people of the State, in their united sovereignty. The owner of the soil through which a stream of water, not boatable within the meaning of Ch. II, §40, of our Constitution, (New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 Atl. 323, 33 L. R. A. 569), flows, has but a qualified or special right of property in the fish therein, that is, the exclusive right of fishing within the boundaries of his own territory. The fish in the stream, however, are not his. His right of property attaches only to those he reduces to actual possession. He cannot lawfully kill, materially injure, or obstruct the free passage of, those which he does not take. State v. Theriault, 70 Vt. 617, 41 Atl. 1030, 67 Am. St. Rep. 695, 43 L. R. A. 290; Payne v. Sheets, 75 Vt. 335, 55 Atl. 656; State v. Niles, 78 Vt. 266, 62 Atl. 795, 112 Am. St. Rep. 917; Zanetta v. Bolles, 80 Vt. 345, 67 Atl. 818. It is said in the Theriault case that such owner of the land does not own the flowing water and only has the right properly to use it while on its passage; that he can use it in a reasonable manner for domestic purposes, for creating power, and for taking fish therefrom; that he cannot divert it from its course, nor pollute it, but leave it so the landowners on the stream above and below may enjoy a like use of the water, including taking fish therefrom; and that this right carries with it the common right to have fish inhabit and spawn in the stream, for which purpose they must have a common passageway to and from their spawning and feeding grounds. It follows that the right to have fish, migratory in nature, pass up and down such a stream to and from their breeding or feeding grounds is a public right which may be regulated and protected by the State. And to the extent that the waters of this State are common passage ways for fish they are, for this purpose, of a public character and subject to legislative control. State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199; State v. Roberts, 59 N. H. 484; Cottrill v. Myrick, 12 Me. 222; People v. Truckee Lumber Co., cited above. See also Commonwealth v. Chapin, 5 Pick, 199, 16 Am. Dec. 386; Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 21 L. Ed. 133.
Whether the depositing of sawdust, shavings, and mill refuse in the waters of the river named and its tributaries above
The contention that the statute is partial and discriminates against persons owning certain kinds of property, without regard to its location, raises the one question of unlawful discrimination. The law applies to all owners and operators of mills, and to no other persons. Is the classification based upon some difference having a reasonable and just relation to the object sought? This is the test by which, according to all the authorities, the question must be determined. It is a matter of common knowledge that sawmills and other mills in which machinery for working in wood is used, of which there are many in this State, necessarily from the nature of the business produce large quantities of sawdust, shavings, and mill refuse, which is generally disposed of in the most convenient manner and with as little expense as possible; and that such mills are, in some instances, located on the bank of a stream, and in some instances, whether portable or stationary, they are located elsewhere, a greater or less distance from any stream or body of water. Is there not reasonable ground for saying that persons, not owners or operators of such mills, are not likely to have sawdust, shavings, or mill refuse, for which they have no use, and which they will deposit in the waters of the streams in question with such frequency and in such quantities as materially to affect the purity of the waters to the injury or destruction of the fish therein? And can it be said that such persons. are as likely to engage in the forbidden acts, and be as
It is further urged that the statute unjustly discriminates against mill owners, in that (it is said) such owner, unlike persons not owners or operators of a mill, is made liable for depositing sawdust or shavings in the waters to which the act relates, even though his mill be located at the most remote place in the State from such waters, and the sawdust or shavings by him so deposited never had any relation whatever to his mill. In reply to this position it is enough to say that the respondent is charged with a violation of the law, as an operator of a mill, not as an owner, in the town of his residence, and through which, as the Court judicially knows, the Lamoille river passes, and the facts alleged stand admitted by his demurrer. He is therefore not affected by such discrimination, if it exists, and he cannot avail himself of it as an element invalidating the act. State v. Scampini, 77 Vt. 92, 59 Atl. 201; State v. Barr, 78 Vt. 97, 62 Atl. 43; State v. Paige, 78 Vt. 286, 62 Atl. 1017.
The same grounds put forth why the law is in contra
Jugment affirmed and cause remanded.