Ely v. Bugbee

• Decision Date: 27 June 1916
• Citation: 98 A. 121
• Court: Connecticut Supreme Court
• Parties: ELY v. BUGBEE.

98 A. 121

ELY

v. BUGBEE.

Supreme Court of Errors of Connecticut.

June 27, 1916.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Replevin by Elliott W. Ely against James P. Bugbee. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Action of replevin brought to the court of common pleas for New London county, and tried upon demurrer to the defendant's answer, before Waller, J., who sustained the demurrer, and, upon the refusal of the defendant to plead over, entered judgment against the defendant and assessed the plain tiff's damages at the sum of $75. Defendant appeals. Error, and cause remanded.

This action of replevin was brought to recover a motorboat, its furniture and equipment, together with 80 rods of gill net then in the possession of James P. Bugbee. Defendant in his answer avowed the taking, and alleged that on May 15, 1914, the plaintiff was arrested on a warrant issued by a justice of the peace in the town of Lyme on the complaint of a commissioner of fisheries and game for the state of Connecticut, charging the plaintiff with a violation of section 1, c. 57, of the Public Acts of 1911 (being a law regulating the taking of shad in tributaries of the Connecticut river) on the 14th day of May, 1914; that on the 22d day of May, 1914, the plaintiff was found guilty of the offense charged against him and fined $50 and costs, from which judgment the plaintiff appealed to the criminal court of common pleas for the county of New London, where the case was then pending. The answer further alleged that all the goods specified in the complaint were owned and used by the plaintiff in violation of law and in the commission of the same offense of which he was convicted in the justice court. It then justifies the taking on the ground that the defendant was a duly appointed fish and game warden for the county of New London, and that the property in question was seized and held in custody by him for the purpose of condemnation or forfeiture as provided for by section 3110 of the General Statutes. To this answer the plaintiff demurred for reasons which are sufficiently stated in the opinion.

Clayton B. Smith, of New London, and Charles L. Stewart, of Norwich, for appellant. Morris Lubchansky and Philip Z. Hankey, both of New London, for appellee.

BEACH, J. (after stating the facts as above). The state has an undoubted right, in the exercise of its police power, to seize implements used in taking or catching fish in violation of law, with a view to subjecting them to judicial condemnation and to sale or destruction by process of law. Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385. That is not denied, but the plaintiff claims that the possession of the defendant fish warden in this case is wrongful for the following reasons which we take up in their order. First, because the fish warden took no steps to institute condemnation proceeding prior to the commencement of this replevin suit on May 29, 1914, fourteen days after the original seizure; second, because the statute, section 3110, is unconstitutional, in that it permits a seizure without warrant, although the property is not being used in violation of law at the very time of the seizure; third, because the statute is unconstitutional, in that it makes no provision for notice to the owner, or for opportunity to be heard in the condemnation proceedings.

The plaintiff's first claim is that, although no time is fixed by the statute within which the implements seized shall be brought before a justice of the peace, a warden is required to act with diligence appropriate to the character of the proceedings, and that 14 days' delay is such an unreasonable delay as constitutes a failure to comply with the requirements of the statute, by reason of which failure the warden became a trespasser ab initio. We do not assent to this conclusion. The Legislature may fix any time it pleases within which articles seized for a violation of law shall be brought before a court for condemnation, subject to the limitation that the delay is not in itself a deprivation of property without due process of law. If it fixes no time, the common Jaw supplies the requirement that the officer shall act within a reasonable time. What is a "reasonable time" in any case depends on the circumstances of that case, and on the consequences of the lapse of time complained of. In this case the question is whether or not, upon the facts alleged in the answer, whose allegations are assumed to be true by the demurrer, the delay was so unreasonably prolonged as to justify the conclusion that it was unreasonable as a matter of law. The answer alleges that upon the same day on which the property was seized, May 15, 1914, the plaintiff himself was arrested; that both the...