Daniels v. Homer
| Decision Date | 17 October 1905 |
| Parties | DANIELS v. HOMER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Dare County; Ward, Judge.
Replevin by B. T. Daniels against J. Q. Homer. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Acts Gen.Assem. 1905, c. 292, regulates fishing in Albermarle and Pamlico Sounds and waters connected therewith, and creates a closed season. Section 8 (page 330) declares that a person violating the act shall be guilty of a misdemeanor, and on conviction may be fined and imprisoned; and section 9 (page 331) makes it the duty of certain officers, on an informant's affidavit that nets are being maintained in violation of the act, to investigate the same and seize and remove the goods or other appliances used in violation of the act, and sell the same and apply the proceeds to the payment of costs and expenses of removal, and pay any balance remaining to the school fund of the county nearest to where the offense is committed. Held that, as a person whose nets are seized for alleged violation of the act is entitled to contest such question, either in replevin to recover the nets, by an injunction to prevent a sale, or by an action to recover the proceeds of the sale and damages, section 9 was not unconstitutional, as depriving him of his property without due process of law.
B. G Crisp, Aydlett & Ehringhaus, and Gilliam & Gilliam, for appellant.
W. M Bond, for appellee.
The General Assembly of 1905 enacted chapter 292 "to regulate fishing in Albemarle and Pamlico Sounds and waters connected with them." The first five sections of that chapter define and regulate the manner of fishing in various sections of the sounds. Section 6 () is as follows: ""That it shall be unlawful for any person to set or fish any net or appliance of any kind for catching fish within one mile on north or south side of a line five miles long, running west from center of New Inlet or Oregon Inlet, or on north or south side of a line five miles long, running northwest from center of Hatteras Inlet." Section 7 makes the act operative only from January 15th to May 15th in each year--a "close" season of four months. We were told on the argument, and it was not controverted, besides it is matter of common knowledge, that no small part of the sustenance and business interest of the people living adjacent to Albemarle and Pamlico Sounds and the waters connected therewith are dependent upon catching fish, whose supply has so greatly decreased that the United States government has established and is operating at large expense a fish hatchery at Edenton for the purpose of putting into the waters of Albemarle Sound millions of young shad and other fish each year to replenish the diminishing supply, and that the habit of the fish is to go out to sea, and at the end of three years they return to the waters where they were liberated for the purpose of spawning, and that, if nets are set across the inlets through which they return, the fish are either caught or detained beyond the spawning season and the supply of fish in Albemarle and Pamlico Sounds and connecting waters will be thereby almost entirely destroyed, and the government hatchery at Edenton will become a useless expense, and will doubtless be abandoned.
With a view of protecting the rights of the public against the cupidity of those who for their own profit would "kill the goose that lays the golden egg" for the benefit of a whole section of the state, whose people are so largely interested in the fish industry, the General Assembly of 1905 enacted the above-named chapter, creating a close season of four months, during which the fish may freely return to our waters to lay their eggs, and for the purpose of enforcing its execution, when the profits arising from its violation would be a great temptation thereto, deemed it necessary to enact sections 8 and 9 of said act as follows: And inasmuch as, pending trial and conviction the destruction of the fish would go on, to the great profit of the violators and to the irreparable injury of the public, the General Assembly thought proper to add to the abatement of the nuisance the penalty of the loss of the nets, the means by which the law was violated, by the following:
An affidavit by 14 citizens having been made March 25, 1905, that B. T. Daniels was violating the aforesaid act by setting two nets in the waters of Pamlico Sound at the end of Croatan Sound, and also east of Roanoke Marshes Lighthouse, where the fish, returning to the sound through Hatteras Inlet, would be caught during the "close" season provided by law, the defendant, the assistant oyster commissioner, notified said Daniels that he would seize said nets on May 1st, which nets were in water where the aforesaid law prohibited the setting or fishing said nets, as the plaintiff admits, and against the protest of said Daniels did take said nets out of the water and placed them on shore under guard, whereupon this proceeding for claim and delivery for the nets was instituted. The defendant avowed his purpose to sell the said nets and apply the proceeds to the cost of seizing and removing the same, and applying the surplus of the proceeds, if any, to the school fund of the county as provided by said act.
There is no individual or property right to fishery in the waters mentioned in the act. The right of fishery, as well as hunting, rests in the state, and is subject absolutely to such regulations as the General Assembly may prescribe, and can be exercised only at such times and by such methods as it may see fit to permit (Hettrick v. Page, 82 N.C. 65; Rea v. Hampton, 101 N.C. 51, 7 S.E. 649; State v. Gallop, 126 N.C. 979, 983, 35 S.E. 180, and cases there cited); and this right may be exercised a marine league out to sea (Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159), and citizens of other states may be excluded (McCready v. Virginia, 94 U.S.
391, 24 L.Ed. 248). As the plaintiff admits his nets were set in waters forbidden by the act, his counsel admitted that the seizure was legal, but denied the right of the defendant to sell the nets as provided in the statute. But the state was sole judge of the penalty it should impose for a violation of its laws. It thought proper here to make the loss of the instruments used in such violation a part of the penalty, possibly to prevent a repetition of the offense, or as a surer deterrent of its commission.
The plaintiff contends that, though his property is admitted by him to have been used in violation of law at the time of seizure, the statute imposing as a penalty the loss of such property is unconstitutional, in that there was no previous notice and trial. But, as the General Assembly could prescribe the loss of the nets as a penalty and the offense is admitted, there is nothing to try. As was said in Rea v. Hampton, 101 N. C., at page 55, 7 S. E., at page 651, 9 Am. St. Rep. 21: In Rose v. Hardie, 98 N.C. 44, 4 S.E. 41, a town ordinance was held valid which authorized all hogs running at large to be impounded and sold for the costs and penalty. Here the state made the penalty the forfeiture of the article used in violation of the act. In Mowery v. Salisbury, 82 N.C. 175, a town ordinance was sustained which made the penalty for failure to pay the tax on a dog the right to kill the dog. At common law any personal chattel that, even accidentally, caused the death of a rational being was forfeited to the sovereign and sold, and the proceeds distributed to the poor, as a cart that ran over a person, a weapon, and the like. They were styled "deodands." 1 Blk. Com. 300. And no trial or conviction of any person was necessary.
But the plaintiff contends that he might not have been using his nets in forbidden water, and, if so, he was entitled to have that question determined by a jury trial before his nets were sold. As the plaintiff admits that his nets were so being used on this occasion, the proposition becomes a mere academic question in this case. In view, however, of the importance of the matter being settled, and in accordance with the wishes of the parties, we pass upon the point. It was not seriously controverted, and could not be, that an abatement of a nuisance must be summary, and that a seizure can take place before any adjudication by legal process; the party having his remedy by proper proceedings for an illegal seizure. In Hettrick v. Page, 82 N.C. 65,...
To continue reading
Request your trial