State v. C. E. Haskell
| Decision Date | 08 May 1911 |
| Citation | 79 A. 852,84 Vt. 429 |
| Parties | STATE v. C. E. HASKELL |
| Court | Vermont Supreme Court |
October Term, 1910.
INFORMATION for depositing sawdust, shavings, and mill refuse in the waters of the Lamoille river, in violation of No. 211 Acts 1908. Heard on demurrer to the information, at the June Term, 1910, Lamoille County, Butler, J., presiding. Demurrer overruled, pro forma, and the information adjudged sufficient. The respondent excepted. The opinion states the case.
Judgment affirmed and cause remanded.
R W. Hulburd for the respondent.
M. P. Maurice, State's Attorney, for the State.
Present: ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
This case is here on demurrer to the complaint charging that the respondent at Wolcott (the alleged place of his residence) in the county of Lamoille, on the 14th day of March, 1910, he then and there being the operator of a mill, did by himself and his agents, deposit and suffer to be deposited, sawdust, shavings, and mill refuse, in the waters of the Lamoille river above Cady's Falls in the town of Morristown in said county, contrary to the form of the statute, etc. All of the counts are the same except that each charges the offence on a different date.
The complaint is based upon No. 211, of the Laws of 1908, entitled "An act relating to the pollution of the waters of the Lamoille River". Section one reads: "An owner or operator of a mill, who, by himself or agents, deposits or suffers to be deposited, any sawdust, shavings or mill refuse in the waters of the Lamoille river or in its tributaries above Cady's Falls in the town of Morristown, shall be fined not less than twenty dollars nor more than one hundred dollars, for each offence."
The respondent contends that no crime is charged in the complaint, because (he says) the statute is partial, unreasonable, and discriminates against citizens owning certain kinds of property, without regard to its location, and hence it is in contravention of the 14th amendment of the Constitution of the United States, and of articles 1 and 7 of the Constitution of the State.
The legislative exercise of the police power must be reasonable, and whether it is reasonable in the particular instance is a question ultimately for the court. State v. Speyer, 67 Vt. 502, 32 A. 476, 29 L.R.A. 573; State v. Dodge, 76 Vt. 197, 56 A. 983. Other than as appears from the title, the act contains nothing showing the real purpose or policy of the enactment; and the title is not very significant in that respect, for it is without anything indicating the mischief intended to be remedied: whether the inhibition is for the protection of the public in the use of the water for domestic purposes, or in the preservation of the fish therein. However, some things are judicially known by the Court. In Heyden's Case, 3 Co. Rep. 7a, 14 Eng. Rul. Cas. 816, decided in 1584, it was resolved by the Barons of the Exchequer, that for the sure and true interpretation of all statutes in general four things are to be discerned and considered:
And in Bruce (Lord Henry) v. Ailesbury (Marquiss of), 1892, App. Cas. 357, 14 Eng. Rul. Cas. 822, where the act of Parliament itself contained nothing, by way of recital or preamble, to show what the meaning or policy of the statute was, Lord Chancellor Halsbury, referring to the resolves in Heyden's case, said, "it has been a very familiar canon of construction to contemplate what was the cause and reason of the act, or, in other words, the mischief requiring the remedy." In The Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226, it is said that "Another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. " The same rule was declared and applied by this Court in Legg v. Britton, 64 Vt. 652, 24 A. 1016. The case was heard on demurrer to the replication to the plea in bar. The Court said that in giving construction to the statute in question it was the duty of the Court to ascertain and carry into effect the intention of the Legislature, to be ascertained, first, from the language of the act taken as a whole; and secondly, from its application to existing circumstances and necessities.
This case was followed by Re National Guard of Vermont, 71 Vt. 493, 45 A. 1051. See also State v. Audette, 81 Vt. 400, 70 A. 833, 18 L.R.A. (N. S.) 527, 130 Am. St. Rep. 1061; Bacon v. Boston & Maine R. R., 83 Vt. 421, 76 A. 128. Applying this rule of construction, the Court will take judicial notice that the Lamoille river is one of the larger rivers of the State and has many tributaries above Cady's Falls in Morristown, to which tributaries trout in the river are accustomed to resort for spawning and for feeding purposes, and that the river is their common passageway to and from such spawning and feeding grounds; and that the mischief sought to be remedied by the law in question is the injury to, and the destruction of, fish in the river and its tributaries, consequent on the depositing of sawdust, shavings, and mill refuse in the waters thereof above the point mentioned in the act. See People v. Truckee Lumber Co., 116 Cal. 397, 48 P. 374, 58 Am. St. Rep. 183, 39 L.R.A. 581; Winnipiseogee Lake Co. v. Young, 40 N.H. 420; Ingram v. Colgan, 106 Cal. 113, 39 P. 437, 28 L.R.A. 187, 46 Am. St. Rep. 221.
By the common law, fish, being ferae naturae, are the general property of the people of the State, in their united sovereignty. The owner of the soil through which a stream of water, not boatable within the meaning of Ch. II, § 40, of our Constitution, (New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 33 L.R.A. 569), flows, has but a qualified or special right of property in the fish therein, that is, the exclusive right of fishing within the boundaries of his own territory. The fish in the stream, however, are not his. His right of property attaches only to those he reduces to actual possession. He cannot lawfully kill, materially injure, or obstruct the free passage of, those which he does not take. State v. Theriault, 70 Vt. 617, 41 A. 1030, 67 Am. St. Rep. 695, 43 L.R.A. 290; Payne v. Sheets, 75 Vt. 335, 55 A. 656; State v. Niles, 78 Vt. 266, 62 A. 795, 112 Am. St. Rep. 917; Zanetta v. Bolles, 80 Vt. 345, 67 A. 818. It is said in the Theriault case that such owner of the land does not own the flowing water and only has the right properly to use it while on its passage; that he can use it in a reasonable manner for domestic purposes, for creating power, and for taking fish therefrom; that he cannot divert it from its course, nor pollute it, but leave it so the landowners on the stream above and below may enjoy a like use of the water, including taking fish therefrom; and that this right carries with it the common right to have fish inhabit and spawn in the stream, for which purpose they must have a common passageway to and from their spawning and feeding grounds. It follows that the right to have fish, migratory in nature, pass up and down such a stream to and from their breeding or feeding grounds is a public right which may be regulated and protected by the State. And to the extent that the waters of this State are common passage ways for fish they are, for this purpose, of a public character and subject to legislative control. State v. Roberts, 59 N.H. 256, 47 Am. Rep. 199; State v. Roberts, 59 N.H. 484; Cottrill v. Myrick, 12 Me. 222; People v. Truckee Lumber Co., cited above. See also Commonwealth v. Chapin, 22 Mass. 199, 16 Am. Dec. 386; Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 21 L.Ed. 133.
At common law the police power as to the protection of fish and game, that is, wild animals fit for food,--not including noxious wild animals not fit for food and worthless in the eye of the common law: Payne v Sheets, cited above; Aldrich v. Wright, 53 N.H. 398, 16 Am. Rep. 339, 363; Ingram v. Colgan, cited above,--has its source in the duty of the state to preserve for its people a valuable food supply. Geer v. Connecticut, 161 U.S. 519, 40 L.Ed. 793, 16 S.Ct. 600. And in the Theriault case it is said that by our organic law, "the State, the representative of the people, the common owner of all things ferae naturae, not only has the right, but is under a duty, to preserve and increase such common property. " The interests of the public generally demand, therefore, that the waters of the river and tributaries in question be not polluted by the deposit of foreign substances therein to the material injury or the destruction of the fish, young and mature, there habitat; and to prevent such pollution the State may, within constitutional limits, adopt such measures as in its discretion may be necessary in the interests of the public. In Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499, a case involving the constitutionality of a statute in New York for the preservation of fish in the waters of that state, the Court, speaking through Mr. Justice Brown, said the preservation of fish and game had always been treated as within the proper domain of the police power. "The state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the Legislature to determine, not only what the interests of the public require, but what measures are necessary...
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