Staples v. Peabody

• Decision Date: 12 March 1891
• Citation: 22 A. 113,83 Me. 207
• Parties: STAPLES et al. v. PEABODY.
• Court: Maine Supreme Court

22 A. 113

83 Me. 207

STAPLES et al.

v. PEABODY.

Supreme Judicial Court of Maine.

March 12, 1891.

(Official.)

Report from supreme judicial court Hancock county.

This was an action of trespass de bonis against the defendant, who justifies the taking as a fish warden.

The plaintiffs introduced testimony tending to show that, on the day alleged in the writ, they were the owners and possessors of the lobsters sued for, which were alive; and that the defendant, at the time and place set forth, seized them, and sold them without notice to the plaintiffs; and that they have been deprived of them, and all benefit from them.

The defendant introduced testimony tending to show that at the time of the alleged seizure he was a fish and game warden, legally appointed and qualified: that 13 of the barrels mentioned in the writ were marked in the name of W. W. Staples, 9 in the name of E. M. Staples, and 6 in the name of C. W. Stockbridge; that, upon examination of the lobsters contained in the barrels mentioned, he found in each and every barrel some lobsters less than 10 1/2 inches in length, measured as the law provides, and others of the length prescribed by law, not being female lobsters in spawn or with eggs attached, with the exception of one lobster in spawn or with eggs attached; that these lobsters were in transit from Swan's Island, Me., to Boston, having been shipped by the plaintiffs in the season for legal shipping for lobsters; that thereupon he liberated alive all the short lobsters so found by him, and, no owner thereof appearing within 24 hours, after the expiration of 24 hours he sold, at private sale, all of such lobsters found in said barrels which were of a length more than 10% inches, measured in the manner prescribed by law, and caused the proceeds of said sale to be paid to Knox county, where such seizure and sale were made by him.

J. O. Robinson and J. F. IAbby, for plaintiffs.

C. E. Littlefieid, for defendant.

LIBBEY, J. This is trespass against the defendant for taking and selling 28 barrels of lobsters. The title of the plaintiffs is not questioned, but the defendant, admitting the taking and conversion, claims to justify as a fish and game warden; that he made the seizure as such on the ground that there were some short lobsters in each barrel, which it was his duty to liberate, as provided in Act 1889, c. 292, § 5. He justifies the taking and selling of the lobsters of lawful length, legally taken, by virtue of Act 1887, c. 144, § 6.

Two objections are made to the validity of the defendant's justification: (1) That section 6 of the act of 1887 was repealed by the act of 1889, above cited; (2) if not repealed, section 6 of the act of 1887 is unconstitutional.

Upon the first point the settled rule of construction of statutes as to repeal by implication is, an existing statute may be repealed in this way on two grounds: "Where the latter one covers the whole subject-matter of the former, especially when additional remedies are added; and when the latter one is inconsistent with or repugnant to the former." Smith v. Sullivan, 71 Me. 150 and cases cited.

Applying these rules to the case at bar, we think it clear that the...