Osborn v. Charlevoix Circuit Judge
| Decision Date | 12 November 1897 |
| Citation | 72 N.W. 982,114 Mich. 655 |
| Court | Michigan Supreme Court |
| Parties | OSBORN v. CHARLEVOIX CIRCUIT JUDGE. |
Mandamus on the relation of Chase S. Osborn, to compel the Charlevoix circuit judge to dissolve a temporary injunction. Writ granted.
Fred A. Maynard, Atty. Gen., and Roger I. Wykes for relator.
A. D Cruickshank and F. W. Mayne, for respondent.
Late in October last a bill of complaint was filed by one O'Neil against the relator, who is game and fish warden, praying that he be restrained from enforcing the provisions of Act No. 151 of the Public Acts of 1897, entitled "An act to regulate the catching of fish in the waters of this state, by the use of pound or trap nets, gill nets, seines and other apparatus," and Act No. 110 of the Public Acts of 1893 which provides for the seizure of such apparatus when used in violation of law, upon the ground that said Act 151 was unconstitutional, or, if not unconstitutional, that it did not become operative until April 1, 1900, and that the provisions of Act 110, alluded to, were unconstitutional, in that they authorize the taking of private property without due process of law. A temporary injunction was allowed, dissolution of which was refused. Thereupon the relator obtained an order requiring the respondent to show cause why said injunction should not be dissolved, and the question is before us upon respondent's return.
It is obvious that the proceedings have been brought for the purpose of determining whether the provisions of Act 151 prohibiting the taking of fish during a portion of the year is valid, and whether it has effect before the year 1900. The alleged unconstitutionality of Act 151 is ascribed to a defective title, in that it prohibits, during a portion of the year, while it professes to regulate, the taking of fish. It is said that this prohibition is not mentioned in the title, and, again, that prescribing certain methods and apparatus is a regulation, which is the only object stated in the title. We may reasonably conclude that the object of this, like other fish laws, is to preserve the industry of fishing, and a valuable food product, by protecting fish during certain seasons, and preventing the taking of young fish that have not reached a proper size. Any provision that tends to these ends, which recognizes a reasonable exercise of the right to take fish, and prescribes rules under which it may or may not be done, is within the term "regulation." This rule has been so frequently applied that we think it unnecessary to indulge in an extended discussion of the subject. There is such a thing as making a title unnecessarily restrictive, whereby the act is limited to certain methods of regulation; but a better practice is to provide a broad title, as in this case, when it will cover any legislation that can fairly be said to tend to the accomplishment of the object. The designation of a season for taking fish is a regulation, as much as a limitation upon methods, and provisions looking to the enforcement of the law through punishment for the prohibited acts are also within such titles. See People v. Brooks, 101 Mich. 98, 59 N.W. 444, where some of the authorities are cited.
The more troublesome question is one of construction. Section 5 of the act provides that all nets bought after the date of the passage of the act shall be of the size prescribed. We cannot hold that this provision became effective before the act became a law under the constitution, but, on the other hand, it is clear that it was not intended that it was to take effect in the year 1900. The language is unequivocal, and excludes any such theory. We may start, then, with the proposition that the legislature sought to prevent the purchase of nets, having meshes smaller than those required by the act, from the time that the act became a law, viz. three months after adjournment. Section 1 of the act forbids the use of any nets but those prescribed, after the year 1900. Inferentially, at least, the two sections, taken together, recognize the right of owners of existing nets to use them until 1900, although they do not conform to the new regulations. It may be said that here is an unjust discrimination, which permits one man to use a net with a mesh of less than four inches' extension, while it forbids another from doing so. There might be force in this if the former were permitted to profit by such use, but, if the law requires him to return to the lake all fish which would escape the larger mesh, then the law, if it be discriminatory at all, discriminates in his favor, by permitting him to utilize the nets that he has on hand, thereby taking small fish of varieties not protected, while it denies to those not owning nets the privilege of using nets having a smaller mesh. Section 2 appears to disclose this intent, making it unlawful to market or have in possession any sturgeon or rock sturgeon weighing less than 15 pounds, or any whitefish weighing less than 2 pounds: provided, however, that it shall not be unlawful to market or have in possession any such fish caught in gill nets of lawful size. The effect of this provision is to prevent those who use the old net with the smaller mesh from using or marketing these fish, and therefore implies that they must allow to escape, or return to the water, all fish taken below the prescribed size. Added force is given to this implication by the requirement as to sturgeon. We may doubt if a 15-pound sturgeon would escape from a net with 4-inch meshes, and, if not, it must follow that they cannot be utilized if taken in such nets. All, therefore, regardless of the net used, are forbidden to take such fish, except those who use "gill nets of the lawful size." The exception may be ascribed to the fact-if it be a fact-that the gill net is usually fatal to fish that are caught in it, and it would be a wanton waste to throw away such fish.
Under this construction of the sections, the following summary may be useful: (1) Any net which conforms to the pre-existing law at the time Act 151 took effect may be used by its then owner, until April 1, 1900. (2) All other nets must conform to the new regulations. (3) All fish of the description and size mentioned in section 2 must be returned to the water, in whatever net taken, except where taken in gill nets of lawful size.
We have said that under section 1 all existing nets may be used until the year 1900. This includes gill nets and it therefore follows that if all fish taken in such gill nets may be marketed, while all caught in other nets of the same mesh may not, the practical operation of the law would be to permit the gill-net fishermen to profit from fish which others must return to the water. There would be an inducement to use such nets as long as possible, and the remedy intended by the law would be retarded thereby, and a discrimination would be practiced under the law. But in dealing with statutes we must give them such a construction as will avoid such results, if possible. There is always a presumption in favor of constitutionality, and this presumption justifies a construction which is rather against the natural interpretation of the language used, if necessary to sustain the law. See 23 Am. & Eng. Enc. Law, p. 349, where a long list of cases is cited. A presumption nearly or quite as strong prevails in favor of a construction which will not do injustice. Id. pp. 358, 359, and notes. If we shall construe the proviso to have reference to gill nets having meshes of the size prescribed in the act, viz. four inches (i.e. if that be what is meant by the term "lawful size"), we avoid this difficulty; for then those who use gill nets of smaller mesh may not market these fish, and the only possible discrimination remaining is the right to use and market such fish as may happen to get caught in a net of four-inch mesh. We have already indicated that, where the use of either kind of net is open to all on equal terms, there is no discrimination. Under the law the use of gill nets of smaller mesh than four inches is not open to all, because only those in existence at the time the law took effect can lawfully be used, except as provided by section 1, which permits the use of a smaller mesh for all nets, where used for the purpose of taking any fish except whitefish, lake trout, and black bass, in places where it can be shown that the annual catch does not contain to exceed 10 per cent. of whitefish or trout; but here all persons are upon an equality, for all who wish may have gill nets in such places,-hence no discrimination, though he who uses the gill net lawfully (i. e. as prescribed in Act 151) may retain small fish, and others may not. We are of the opinion that there is nothing in the discussion thus far that is inconsistent with the contention that this law is now operative, and that section 1, prohibiting the use of existing nets, or those different from the nets prescribed therein, after the year 1900, does not necessarily imply that none of the provisions of the act can become operative until that time. We have seen that section 5 expressly shows the contrary, and we have endeavored to show that none of the provisions discussed are necessarily inconsistent with its earlier operation. Another provision should, perhaps, be referred to in this connection, viz. a provision in section 4, which says, "Provided, further, that nothing contained in this act, shall be construed to permit fishing with net and appliances contrary to the provisions of the present laws prior to the said first day of April, nineteen hundred." We are not advised that any net or apparatus permitted by this act is excluded by pre-existing laws. If it were, it might be an argument in favor of respondent's contention. As it...
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