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The preservation of game and fish, however, has always been treated as within the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed or exposed for sale, and prescribing the time and navner in which fish mar be caught, have been repeatedly upheld by the courts. Thus in Smith v. Marylınıl, 18 How. 71, it was held that the State had a right to protect its fisheries in Chesapeake Bay by making it unlawful to take or capture oysters with a scoop or drag, and to inflict the penalty of for: feiture upon the vessel employed in this pursuit. The avowed object of the Act was to prevent the destruction of the oysters by the use of particular instruments in taking them. “ It does not touch," said the court, “ the subject of the common liberty of taking oysters save for the purpose of guarding it from injury to whom it may belong and by whomsoever it may be enjoyed.” It was held that the right of forfeiture existed, even though the vessel was enrolled for the coasting trade under the Act of Congress. So in Smith v. Lerinus, 8 N. Y. 472, a similar Act was held to be valid, although it vested certain legislative powers in boards of supervisors, authorizing them to make laws for the protection of shell and other fishi. In State v. Roberts, 59 N. H. 256, which was an indictment for taking fish out of navigable waters out of the season prescribed by statute, it was said by the court: “ At common law the right of fishing in navigable waters was common to all. The taking and selling of certain kinds of fish and game at certain seasons of the year tended to the destruction of the privilege or right by the destruction consequent upon the unrestrained exercise of the riglit. This is regarded as injurious to the community, and, therefore, it is within the authority of the legislature to impose restriction and limitation upon the time and manner of taking fish and game, considered valuable as articles of food or merchandise. For this purpose fish and game laws are enacted. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not row to he called into question.” Commonwealth v. Chapin, 5 Pick. 199 ; McCready v. Virginia, 94 U. S. 391; V'inton v. Welsh, 9 Pick. 92; Commonwealth v. Essex Co., 13 Gray, 248; Phelps v. Racey, 60 N. Y. 10; Holyoke Co. v. Lyman, 15 Wall. 500; Gentile v. State, 29 Ind. 409 ; State v. Lewis, 33 N. E. R. 1024.
As the waters referred to in the Act are unquestionably within the jurisdiction of the State of New York, there can be no valid olijection to a law regulating the manner in which fishing in these waters shall be carried on. Hooker v. Cummings, 20 Johns. 91. The duty of preserving the fisheries of a State from extinction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish, is as clear as its power to secure to its citizens, as far as possible, a supply of any other wholesome food.
The main, and only real difficulty connected with the Act in question is in its declaration that any net, &c., maintained in violation of any
law for the protection of fisheries, is to be treated as a public nuisance, " and may be abated and summarily destroyed by any person, and it shall be the duty of each and every protector aforesaid and every game constable to seize, remove, and forth with destroy the same.” The legislature, however, undoubtedly possessed the power not only to prohibit fishing by nets in these waters, but to make it a criminal offence, and to take such measures as were reasonable and necessary to prevent such offences in the future. It certainly could not do this more effectually than by destroying the means of the offence. If the nets were being used in a manner detrimental to the interests of the public, we think it was within the power of the legislature to declare them to be nuisances, and to authorize the officers of the State to abate them. Hart v. The Mayor, 9 Wend. 571 ; Meeker v. Vun Rensselaer, 15 Wend. 397. An Act of the Legislature which has for its object the preservation of the public interests against the illegal depredations of private individuals ought to be sustained, unless it is plainly violative of the Constitution, or subversive of private rights. In this case there can be no doubt of the right of the legislature to authorize judicial proceedings to be taken for the condemnation of the nets in question, and their sale or destruction by process of law. Congress has assumed this power in a large number of cases, by authorizing the condemnation of property which has been made use of for the purpose of defrauding the revenue. Examples of this are vessels illegally registered or owned, or employed in smuggling or other illegal traffic; distilleries or breweries illegally carried on or operated, and buildings standing upon or near the boundary line between the United States and another country, and used as depots for smuggling goods. In all these cases, however, the forfeiture was decreed by judicial proceeding. But where the property is of little value, and its use for the illegal purpose is clear, the legislature may declare it to be a nuisance, and subject to summary abatement. Instances of this are the power to kill diseased cattle ; to pull down houses in the path of conflagrations; the destruction of decayed fruit or fish or mwholesome meats, of infected clothing, obscene books or pictures, or instruments which can only be used for illegal purposes. While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed. Newark, &c. Roy Co. v. Hunt, 50 N. J. Law, 308; Blasier v. Miller, 10 Hun, 435; Mouse's Case, 12 Coke, 62; Stone v. The Mayor, 25 Wend. 173; Am. Print Works v. Lawrence, 21 N. J. Law, 248; Same v. Same, 23 Id. 590.
It is not easy to draw the line between cases where property illegally lised may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of
a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving hiin of his property without due process of law. But where the property is of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips, and dice of a gambling-room.
The value of the nets in question was but $15 apiece. The cost of condemning one (and the use of one is as illegal as the use of a dozen), by judicial proceedings, would largely exceed the value of the net, and doubtless the State would, in many cases, be deterred from executing the law by the expense. They could only be removed from the water with difficulty, and were liable to injury in the process of removal. The object of the law is undoubtedly a beneficent one, and the State ought not to be bampered in its enforcement by the application of constitutional provisions which are intended for the protection of substantial riglits of property. It is evident that the efficacy of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condemnation.
There is not a State in the Union which has not a constitutional provision entitling persons charged with crime to a trial by jury, and yet from time immemorial the practice bas been to try persons charged with petty offences before a police magistrate, who not only passes upon the question of guilt, but metes ont the proper punishment. This has never been treated as an infraction of the Constitution, though technically a person may in this way be deprived of his liberty without the intervention of a jury. Callan v. Wilson, 127 U. S. 540, and cases cited. So the summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the Constitution, and it has never been supposed that the constitutional provision in question in this case was intended to interfere with the established principles in that regard.
Nor is a person whose property is seized under the Act in question without his legal remedy. If in fact his property has been used in violation of the Act, he has no just reason to complain ; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such cases the burden would be upon the defendant to prove a justification under the statute. As was said by the Supreme Court of New Jersey in a similar case (Am. Print Works v. Lawrence, 21 N. J. Law, 248, 259): "The party is not, in point of fact, deprived of a trial by jury. The
evidence necessary to sustain the defence is changed. Even if the party were deprived of a trial by jury, the statute is not, therefore, necessarily unconstitutional.” Indeed, it is scarcely possible that any actual injustice could be done in the practical administration of the Act.
It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles, such, for instance, as cards, dice, and other articles used for gambling purposes, are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ban of the law and may be summarily destroyed. It is true that this rule does not always follow from the illegal use of a harmless article. A house may not be toru down because it is put to an illegal use, since it may be as readily used for a lawful purpose (Ely v. Supervisors, 36 N. Y. 297), but where minor articles of personal property are devoted to such use the fact that they may be used for a lawful purpose would not deprive the legislature of the power to destroy them. The power of the legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question (People v. West, 106 N. Y. 293), and in such case the legislature may annex to the prohibited act all the incidents of a criminal offence, including the destruction of property denounced by it as a public nuisance.
In Weller v. Snover, 42 N. J. Law, 3+1, it was held that a fish warden for a county, appointed by the Governor, had the right, under an Act of the Legislature, to enter upon land and destroy a fish basket constructed in violation of the statute, together with the materials of which it was composed, so that it might not again be used. It was stated in that case that " after a statute has declared an invasion of a public right to be a nuisance it may be abated by the destruction of the object used to effect it. The person who, with actual or constructive notice of the law, sets up such nuisance cannot sue the officer whose duty it has been made by the statute to execute its provisions.” So in Wil. liams v. Blackwall, 2 H. & C. 33, the right to take possession of or destroy any engine placed or used for catching salmon in contravention of law was held to extend to all persons, and was not limited to conservators or officers appointed under the Act.
It is true there are several cases of a contrary purport. Some of these cases, however, may be explained upon the ground that the property seized was of considerable value (leck v. Anderson, 57 Cal. 251, boats as well as nets; Dunn v. Burleigh, 62 Me. 24, teams and supplies in lumbering ; King v. Hayes, 80 Me. 206, a horse) – in others the court seems to have taken a more technical view of the law than the necessities of the case or an adequate protection of the owner required. Lowry v. Rainwater, 70 Mo. 152; State v. Robbins, 124 Ind. 308; Ridgeway v. West, 60 Ind. 371.
Upon the whole, we agree with the Court of Appeals in holding this
Act to be constitutional, and the judgment of the Supreme Court is, therefore
MR. CHIEF JUSTICE FULLER (with whom concurred MR. JUSTICE FIELD and MR. JUSTICE BREWER) dissenting.
In my opinion the legislation in question, so far as it authorizes the summary destruction of fishing-nets and prohibits any action for damages on account of such destruction, is unconstitutional.
Fishing-nets are in themselves articles of property entitled to the protection of the law, and I am unwilling to concede to the legislature of a State the power to declare them public nuisances, even when put to use in a manner forbidden by statute, and on that ground to justify their abatement by seizure and destruction without process, notice, or the observance of any judicial form.
The police power rests upon necessity and the right of self-protection but private property cannot be arbitrarily invaded under the mere guise of police regulation, nor forfeited for the alleged violation of law by its owner, nor destroyed by way of penalty inflicted upon him, without opportunity to be heard.
It is not doubted that the abatement of a nuisance must be limited to the necessity of the occasion, and, as the illegal use of fishing-nets would be terminated by their withdrawal from the water and the public be fully protected by their detention, the lack of necessity for the arbitrary proceedings prescribed seems to me too obvious to be ignored. Nor do I perceive that the difficulty which may attend their removal, the liability to injury in the process, and their comparatively small value ordinarily, affect the principle, or tend to show their summary destruction to be reasonably essential to the suppression of the illegal use. Indeed, I think that that argument is to be deprecated as weakening the importance of the preservation, without impairment in ever so slight a degree, of constitutional guarantees.
I am, therefore, constrained to withhold my assent to the judgment just announced, and am authorized to say that Mr. Justice Field and Mr. Justice Brewer concur in this dissent.1
1 See State v. Lewis, 33 N. E. Rep. 1024 (Ind., April, 1893), holding valid a statute making it criminal to have in one's possession a gill net or seine, with certain exceptions. And so as to gaining implements, Hastings v. Haug, 85 Mich. 87 (1891). — Ed.