McKenney v. Farnsworth

• Decision Date: 12 September 1922
• Citation: 118 A. 237
• Parties: McKENNEY et al. v. FARNSWORTH et al. Commission of Sea and Shore Fisheries.
• Court: Maine Supreme Court

118 A. 237

McKENNEY et al.

v. FARNSWORTH et al.Commission of Sea and Shore Fisheries.

Supreme Judicial Court of Maine.

Sept. 12, 1922.

Agreed statement from Supreme Judicial Court, York County, in Equity.

Suit by William A. McKenney and others against Alton B. Farnsworth and others, constituting the Commission of Sea and Shore Fisheries, brought up on open statement. Suit dismissed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

John P. Deering, of Biddeford, for plaintiffs.

H. C. Wilbur, of Portland, for defendants.

SPEAR, J. This is a bill in equity, and comes up on an agreed statement of facts, the salient points of which are as follows:

The plaintiffs are lobster fishermen of Kennebunkport, and the defendants are Alton B. Farnsworth, Harry C. Wilbur, and E. W. Gould, commissioners, constituting the commission of Sea and Shore Fisheries of Maine. They will hereafter be called the commission.

On the 28th day of July, 1921, the Commission gave notice of a hearing upon the advisability of a close time, within certain defined limits, upon lobster fishing along the coast near Cape Porpoise. The limits are immaterial to the issue.

The plaintiffs thereupon brought a bill in equity to restrain the Commission from giving effect to the proposed close time, upon the contention that the proposed action of the commission "is based upon a statute which is unconstitutional and void, namely, section 3 of chapter 293 of the Public Laws of 1917," for the following reasons:

"First, because said section would deprive persons of their property without due process of law; second, because by said section the Legislature has attempted to delegate to said Commission powers that belong to the Legislature alone; third, because by said section the 1 Legislature has attempted to delegate to said Commission powers to make rules and regulations which shall take precedence over provisions of existing statutes."

Under these contentions the real question in issue is the constitutionality of section 3 of chapter 293.

The last clause of section 3 provides that the Commission may make rules and regulations which may "take precedence over any then existing * * * statute Inconsistent therewith." There can be no controversy regarding the unconstitutionality of the last clause of that section, and the defendants make none. The Legislature alone can make and repeal statutes. It cannot delegate its power to do so to any other authority. But it does not necessarily follow, because part of a statute is unconstitutional, that the whole is. Where the statute can be divided, and the valid separated from the invalid, it may be done. Such is the result of the unconstitutional clause in the present statute. This rule of construction is too familiar to require extended citation. State v. Robb, 100 Me. 191, 60 Atl. 874, 4 Ann. Cas. 275.

The only unconstitutional act contemplated by the last clause of section 3 is entirely independent of the rest of the section, and will arise only when the Commission undertakes to promulgate a rule or regulation that is inconsistent with an existing act of the Legislature. It is only in such case that any rule or regulation of the Commission can come in conflict with any existing statute. Accordingly, whenever the Commission issues a rule or regulation that contravenes any existing act of the Legislature, such rule or regulation will be promptly declared invalid. It is evident, however, from an examination of the statutes relating to the subject-matter of this case, that the proposed action of the Commission in the present case is not inconsistent with any existing statute. We are unable to find any statute that fixes a definite close time on lobsters within the proposed locality or in any other locality. The reason for the absence of such legislation is apparent. It would he quite impracticable for a large body like the Legislature to gain that intimate information, which can be acquired only by practical experience and personal contact, with the numerous phases of the business which the great sea and shore fisheries involve: and such information is patently essential to intelligent action in such matters as fixing close times, the locality, and the season of the year they should be applied to a particular locality, the times, manner, or conditions of taking many kinds of fish, and the numerous other important things which only the man on the spot can fully understand. We are accordingly of the opinion that the last clause of section 3 does not affect the constitutionality of the rest of the section, except in the possible conflicts already mentioned.

We have considered the third reason first, since, if section 3 were entirely unconstitutional, that would be the end of the case. For the same reason, we consider the second contention before the first. This involves the right of the Legislature to delegate authority to the Commission to make rules and regulations concerning the sea and shore fisheries. Section 3 confers upon the Commission the following authority in this regard: Authority to make rules and regulations governing the time, manner and condition of taking fish, shellfish, and lobsters, and declaring close time on such varieties and in such localities as they may determine. It also provides that such rules and regulations shall be made and such close time shall he declared after hearing, reasonable notice of which shall be given by publication to all parties concerned. The language of that section presupposes a close time on fish, shellfish, and lobsters, but does not define when or where it shall be imposed. It has left the...