Thompson v. Lewis, 83 Me. 223

Thompson v. Lewis

83 Me. 223 | Me. | 1891

Whitehouse, J.

General demurrer to the writ containing eleven counts in an action based on Chap. 190, of the Private and Special Laws of 1867, to recover the penalty for taking-smelts from the Damariscotta river, by the use of nets and seines, in December, 1889, and January, 1890.

The first objection interposed by the defense is that the act above-named has been repealed by subsequent legislation. The first section of the act provides that during the months of December, January, February and March, of each year, no person shall "take fish by the use of nets or seines, from the Damariscotta river, so far up said river as the tide-waters extend.”

There is no law -which in terms ideals this act by express reference to it, but it is a well-settled rule of interpretation that when a new statute covers the whole subject matter of an old one, adds offenses and prescribes different penalties for those enumerated in the old law, the former statute is repealed by implication, and the most recent expression of the legislative will regarded as the only one having the force of law. Norris v. Crocker, 13 How. 438; Commonwealth v. Kelliher, 12 Allen, 481. So, also, when the latter act is inconsistent with or repugnant to the former. Smith v. Sullivan, 71 Maine, 152. But no subsequent enactment exists which can be held under these rules to operate as a repeal of this act of 1867. There is *227no subsequent act necessarily inconsistent with it and no act which can be deemed a substitute for it as embracing all of its provisions. The Damariscotta river, was expressly exempted from the operation of the provisions of Chap. 70, Laws of 1869, Chap. 161, Laws of 1870, and of Chap. 40 of the li. S., of 1871,, by force of sections 30, 12, and 50, of those chapters,, respectively. It appears, however, that by Chap. 23 of thm Public Laws of 1878, this general exemption of Damariscotta' river, was limited to so much of the waters of Damariscotta river as are west of the railroad bridge in Damariscotta Mills y and it is contended in behalf of the defendant that, as to the part not exempted, all the general laws applicable to the subject-immediately took effect and thereby repealed the antecedent enactment of 1867, with -which it is claimed they were inconsistent. But the laws relating to the subject-matter in force at that time were not inconsistent with the act of 1867. Chapter 23 of the Public Laws of 1878, did not become effective as a law until March 23, 1878, thirty days after the adjournment of the legislature passing the act; while the general revision of the' fishery laws found in Chap. 75 of the Laws of the same year, took effect when approved, February 21, 1878. Thus it appears, that, when the exemption of Damariscotta river was limited by chap. 23 of the Laws of 1878, the only law applicable to the subject, then in force, was chap. 75 of the Laws of 1878 ; and it will be seen on examination that this act contains no provisions relating to smelts inconsistent with Chap. 190 of the Private and Special Laws of 1867. The prohibition of the latter act extends only to the months of December, January, February and March. It contains no restrictions with respect to the remainder of the year; while section 11 of Chap. 75 of the Laws of 1878, prohibits the taking of smelts otherwise than by hook and line between the first day of April and the first day of November in each year. With respect to time the two acts are exact complements of each other, and together embrace the whole year. They are not in conflict. Section Li of Chap. 75 of the Laws of 1878, -was amended in 1881, by substituting October for November, and as thus amended it now appears as *228¡section 46 of the Revised Statutes. But this obviously had no ■effect to render the provision repugnant to the act of 1867. It •simply left one month unguarded.

The objection that there are several counts joined in the {plaintiff’s declaration can not prevail as a cause for demurrer. Allen v. Ham, 63 Maine, 535; Mitchell v. Tibbetts, 17 Pick. 298. If any one of the counts is good, the declaration must be sustained on general demurrer. Nat. Ex. Bank v. Abell, 63 Maine, 348; Blanchard v. Hoxie, 34 Maine, 376.

Exceptions sustained. Demurrer overruled.

Peters, C. J., Walton, Virgin, Libbey and Haskell, JJ., concurred.