State v. Howard

• Decision Date: 30 July 1881
• Parties: STATE OF MAINE v. GEORGE HOWARD.
• Court: Maine Supreme Court

72 Me. 459

STATE OF MAINE v. GEORGE HOWARD.

Supreme Judicial Court of Maine.

July 30, 1881

ON REPORT.

Indictment under special stat. 1868, c. 448.

The opinion states the case.

B. H Mace, county attorney, for the State, cited: Winslow v Kimball, 25 Me. 495; Hart v. Cleis, 8 John. 41; United States v. Coombs, 12 Peters 80; McCluskey v. Cromwell, 1 Kernan 602; The Watervliet Turnpike Co. v. McKean, 6 Hill 620; Pillow v Bushnell, 5 Barb. 156, 159; Gibson v. Jenney, 15 Mass. 206; Gore v. Brazier, 3 Mass. 539; Putnam v. Longley, 11 Pick. 490; Pitman v. Flint, 10 Pick. 506; Opinion of the Justices, 22 Pick. 573; Jackson v. Lewis, 17 John. 477; People v. N. Y. Central R. R. Co. 3 Kernan 78; 5 Abbott Digest, 79, § 31; King v. The Company of Prop. of M. & S.W. W. 630; 8 E. C. L. 168; Casher v. Holmes, Clerk, 2 Barn. & Adol. 592; 22 E. C. L. 146; 79 E. C. L. 511; Jones v. Jones, 18 Me. 313; Ogden v. Strong, 2 Paine 587; Holbrook v. Holbrook, 1 Pick. 250; Mendon v. County of Worcester, 10 Pick. 243; 5 Abbott's Digest, 80; Heard's Criminal Law, 66, 67, 68, 69; United States v. Reed, 1 Lowell 233; United States v. Pond, 2 Curtis, C. C. 268.

C. A. Bailey, (D. F. Davis with him,) for the defendant.

Prior to the year 1868, the throwing into the river of all kinds of waste substances, from mills employed in the manufacture of lnmber on Penobscot river, had been the custom from the earliest establishment of such mills; and, indeed, such was the original custom everywhere from the first settlement of the country. In some of the States this custom, not unreasonably exercised, had been declared to be a legal right. Palmer v. Mulligan, 3 Caines 307; Snow v. Parsons, 28 Vt. 459; Jacobs v. Allard, 42 Vt. 303.

But the court in this State, while not denying the right, had, however, limited it so far as to make parties exercising it, assume the risk of obstructing a common highway or of injuring lower riparian proprietors. Veazie v. Dwinel, 50 Me. 490; Washburn v. Gilman, 64 Me. 163.

In 1859 this right received legislative recognition in " An act to define the liability of mill owners," public laws c. 98, a proviso to which declares: " But nothing herein contained shall be construed to create any restriction upon the present rights of operators of mills, to float their waste matter from their mills upon any river or stream."

In 1868 " An act to prevent the throwing of slabs and other refuse into the Penobscot river" was passed, under which these actions are prosecuted.

By this statute, that which had hitherto been lawful, was made an offence punishable by indictment.

Of such offences Bouvier says, their " criminality consists not in the simple perpetration of the act … but in its being a violation of a positive law." Law Dict. Crime.

With this explicit declaration of what the offence consists we come to inquire wherein the respondents have violated any " positive law."

In the manufacture of shingles there is of necessity much waste. That waste most obstructive to navigation is the bark, slabs and refuse timber taken from the bolts. The statute clearly prohibits the thowing of these into the river. The two other necessary waste products from the process of making shingles are the sawdust and jointer shavings.

In the enumeration of the various classes of waste, prohibited by the statute, " sawdust" and " shavings" are not to be found. The words " wood" and " " " timber," have a well established and popular significance, as representing specific subjects. They designate commodities of commercial value and importance, the sale and admeasurement of which are regulated by law. Nobody, however wild his imagination, could conceive that " wood" and " timber" designate " sawdust" and " shavings." Nor can their representative character be changed by the qualitative word " refuse."

" Words and phrases are to be construed according to the common meaning of the language." R. S., c. 1, § 4.

The difficulty with the case, as presented by the government, lies in the failure to discriminate between " refuse wood" and wooden refuse. If the statute had prohibited the latter, there might have been less room to question the position taken. As it is, however, it would be a gross violation of all principles for the construction of penal statutes to hold the respondents. Bishop on Statutory Crimes, § §, 190, 193, 194, 220; Cleaveland v. Norton, 6 Cush. 383; United States v. Wiltberger, 5 Wheat. 76.

It will be observed by the petition (in the case) which was the inducing cause of the legislation upon the subject, that if the prayer of the petitioners had been fully granted, " sawdust and other materials which shall fill up, or obstruct, or have a tendency to fill up said river, or obstruct the navigation thereof," would have been within the statute, and the act, with which the respondents are charged, would havg been expressly prohibited. In the face of this conspicuous denial of that part of the petition, it is too much to believe, that the omission was not intentional.

The history of legislation in this State, upon the subject of throwing waste into streams, shows that no lack of proper words to express what was proposed, has ever been manifested.

It is believed that the initiatory step in this direction is c. 30, special laws, 1840, for Machias river; the enumeration there being " slabs, lathings, edgings or any other refuse timber of any nature whatsoever or other materials, whereby the navigation of said river may be impeded or injuriously affected."

This was followed by special laws, c. 230, 1854, Narraguagus river, the enumeration there being, " slabs, lath or board edgings, or refuse timber of any sort, or other materials whereby the navigation," & c.

And the Penobscot act of 1868 was next; in which the words, " or other materials," as we have seen, are noticeably omitted.

But to show more particularly that the legislature has never failed to use apt words when intending that shingle sawdust and jointer shavings should be brought expressly within the inhibition of a statute, attention is called to the Piscataquis act, special laws 1878, c. 94, wherein the very substances proscribed by the Penobscot act, are not only enumerated, ipsissimis verbis, but added thereto are the following: " or any shavings or fibrous material created by the manufacture of shingles."

Also the Kenebec act, c. 80, special laws of 1878, which interdicts throwing into the river " slabs, edgings, or any shavings or fibrous material created by the manufacturing of shingles, … whereby the navigation of said river may become impeded," & c.

A. W. Paine, for the defendant, also furnished an able brief.

LIBBEY J.

This is an indictment under special act of 1868, c. 448, and comes before this court on report. The first section of the act is as follows: " No person or persons shall cast or throw into the Penobscot river, below the mouth of the Mattawamkeag river, or into any of its tributaries entering below the mouth of said Mattawamkeag river, any slabs, board or lath edgings, bark, grindings of edgings, wood, bark or lumber, or refuse wood or timber of any sort, or shall place, pile or deposit on the banks of said Penobscot river, or banks of said tributaries, any slabs, board or lath edgings, bark, grindings of edgings, bark, wood or lumber, or refuse wood or timber of any sort, in such negligent or careless manner that the same shall fall or be washed into said river or said tributaries, or with the intent that the same shall fall or be washed into said river or said tributaries, whereby the navigation of said river may become impeded or injuriously affected, or which shall tend to impede or injuriously affect the navigation of, or fill up said river, under a penalty," & c.

It is admitted that " during the time alleged in the indictment, the respondent was the lessee in possession of a shingle machine, and in operating and running the same, threw into the Penobscot river...