Commonwealth v. Howes

• Citation: 169 N.E. 806,270 Mass. 69
• Parties: COMMONWEALTH v. HOWES.
• Decision Date: 16 January 1930
• Court: United States State Supreme Judicial Court of Massachusetts

270 Mass. 69

169 N.E. 806

COMMONWEALTH

v.HOWES.

Supreme Judicial Court of Massachusetts, Barnstable.

Jan. 16, 1930.

Report from Supreme Judicial Court, Barnstable County.

Marcus H. Howes was convicted of taking clams from the shores and tidewaters of the town of Barnstable, without a permit, for other than his family use. On report. Judgment affirmed.

F. E. Smith, Asst. Dist. Atty., of Boston, for the commonwealth.

H. A. Baker, of Boston, for defendant.

PIERCE, J.

This is a criminal complaint brought against the defendant, under G. L. c. 130, § 84, wherein, in substance, it is charged that the defendant on September 24, 1927, did take clams from the shores and tidewaters of the town of Barnstable without a permit, for other than his family use. The defendant, before arraignment in the District Court, and on appeal in the Superior Court, moved to dismiss the complaint for lack of jurisdiction on the ground that the statute if enforced against him would deprive him of his property without due process of law, would take his private property for public use, and would impair the obligations of a contract. The case was tried to a jury on an agreed statement of facts. The defendant moved the judge to instruct the jury to find the defendant not guilty. The motion was denied, and the jury found the defendant guilty. The judge reported the case to this court at the request of the defendant and with his consent, with the statement that the sole question presented by this report is ‘Whether the Statute is unconstitutional, as violating Article 1, § 10, of the Constitution of the United States, and/or Article 14 of the Amendments thereto, and/or Articles 1 and 12 of the Declaration of Rights in the Constitution of Massachusetts.’

The agreed statement of facts discloses that, at a legal town meeting held in March, 1883, the town of Barnstable voted ‘that the Selectmen be instructed to make such regulations as to the taking of shell-fish as they deemed best under section 68 [of c. 91] of Public Statutes of this Commonwealth and that in granting permits to take shell-fish under the provisions of Chapter 91 of said Statutes, they grant the same only to citizens of this Town, they being applicants therefor’; that the defendant, as a resident citizen of Barnstable, held a license under a grant from the selectmen of Barnstable under the provisions of St. 1911, c. 499, as amended by St. 1914, c. 43, which had expired at the date of the alleged offense; that on or about September 24, 1927, he took clams for market purposes, without a permit which was required, from the area covered by the grant before it expired, with due notice that the area had been closed by the selectmen. It was further agreed that the defendant claimed the fee to the land from which clams were taken, under a deed dated November 10, 1926, which was recorded August 29, 1927, in the Barnstable County Registry of Deeds.

Apart from the constitutionality of the statute, the defendant contends that the court was without jurisdiction because his alleged offense was made a crime only by the operation of an alleged unaccepted amendment. P. S. c. 91, § 68; G. L. c. 130, § 84. He further contends that the general law as contained in G. L. c. 130, § 84, was superseded by St. 1911, c. 499, within the town of Barnstable.

[1] Public Statutes, c. 91, § 68, so far as the wording is material to the issue first presented by the defendant, reads: ‘The mayor and aldermen of cities and the selectmen of towns, when so instructed by their cities and towns, may control and regulate the taking of eels, clams, quahaugs, and scallops within the same, including ponds which are now or may hereafter be leased by the commissioners.’ St. 1889, c. 391, § 1, so far as material reads: ‘Section sixty-eight of chapter ninety-one of the Public Statutes is hereby amended by adding after the word ‘regulate’ in line three of said section the words:-or prohibit.' When adopted, the legislative amendment became a part of the original statute to the same extent as to everyone as if always contained therein unless the amendment involves the abrogation of contractual relations between the State and others. Fitzgerald v. Lewis, 164 Mass. 495, 499, 41 N. E. 687;Wheelwright v. Tax Commissioner, 235 Mass. 584, 585, 127 N. E. 523, 37 A. L. R. 920. It is to be noted that the record here contains no suggestion that such relation exists or ever existed between the Commonwealth and this defendant or between the Commonwealth and any predecessor in title of the defendant.

It is incontrovertible that the Legislature without the concurrence of cities and towns could have appointed as its agents the public officers named in the statutes under consideration, with every power which concededly was given such officers by cities and towns acting under the authority of St. 1880, c. 200, P. S. c. 91, § 68, and subsequent statutes including G. L. c. 130, § 84, and at all times could have enlarged or taken away in whole...