State v. Leavitt

• Citation: 72 A. 875,105 Me. 76
• Parties: STATE v. LEAVITT.
• Decision Date: 02 January 1909
• Court: Supreme Judicial Court of Maine (US)

72 A. 875

105 Me. 76

STATE

v. LEAVITT.

Supreme Judicial Court of Maine.

Jan. 2, 1909.

(Official.)

Exceptions from Supreme Judicial Court, Cumberland County.

Almon B. Leavitt was convicted in a trial justice's court of digging clams in violation of Priv. & Sp. Laws 1903, p. 489, c. 317, and appealed to the superior court of the county, where his demurrer to the complaint and warrant was overruled, and he excepts. Exceptions overruled.

Complaint against the defendant for digging clams on Scarboro flats, Cumberland county, in violation of the provisions of Priv. & Sp. Laws 1903, p. 489, c. 317. On this complaint a warrant was duly issued by a trial justice in said county. Presumably the defendant was convicted in the trial justice court, although the record is silent on that point. The defendant then appealed to the superior court in said county, and the appeal was entered at the May term, 1908, of said superior court, at which said term "the defendant filed a demurrer to the complaint and warrant with the agreement entered of record by the consent of the court that, if final judgment on the demurrer was for the state, the defendant should have right to a trial by jury."

The presiding justice of said superior court by a pro forma ruling overruled the demurrer, and held the complaint and warrant to be sufficient in law, and thereupon the defendant excepted.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

Joseph E. F. Connolly, County Atty., for the State. Charles P. Mattocks and John A. Snow, for defendant.

SAVAGE, J. Complaint for digging clams in violation of the provisions of chapter 317, p. 489, Priv. & Sp. Laws 1903. The case comes up on exceptions to the overruling of the defendant's demurrer.

The statute in question is as follows:

"Section 1. No person shall take or dig or destroy in any manner clams in any of the shores or flats within the town of Scarboro from the first day of April until the first day of October in each year under a penalty of not less than ten or more than one hundred dollars for each and every violation of this statute.

"Sec. 2. The aforesaid section shall not apply to inhabitants or residents of said town taking clams for the use of himself and family nor to hotel keepers within the town taking clams for the use of their hotels."

The complaint alleges that the defendant was not a hotel keeper within the town taking clams for the use of his hotel, and that he was not an inhabitant or resident of the town taking clams for the consumption of himself and family.

The only point raised by the defendant is that this statute is obnoxious to that portion of the fourteenth amendment of the Constitution of the United States, which declares that "no state shall deny to any person within its jurisdiction the equal protection of the laws"; and hence that it is unconstitutional and void.

We may first inquire into the nature of the right or privilege the equal protection of which is said to be denied by the statute in question. The shores of the sea and navigable rivers within the flux and reflux of the tide by the common law belonged prima facie to the king. Holding the soil thus, the king held the appurtenant right of fishery, in trust for the benefit of his subjects. Moulton v. Libbey., 37 Me. 472, 59 Am. Dec. 57; Commonwealth v. Hilton, 174 Mass. 29, 54 N. E. 302, 45 L, R. A. 475. And, after Magna Charta, he could not by an exercise of his prerogative exclude the public from the right of fishery, or grant an exclusive right to a private individual, either together with or distinct from the soil. Hale, De Jure Maris, c. 5. The grantee of the king took the soil subject to the trust. Hence the right of taking fish where the tide ebbs and flows was common to all the people. Warren v. Matthews, 1 Salk. 357; Ward v. Creswell, Willes, 205; Carter v. Burcot. 4 Burr. 2102.

This common right of fishery included shellfish as well as swimming fish. Bogott v. Orr, 2 B. & P. 472; Parker v. Cutler Milldam Co., 20 Me. 353, 37 Am. Dec. 56; Moulton v. Libbey, supra; Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997; Weston v. Sampson, 8 Cush. (Mass.) 347, 54 Am. Dec. 764.

But the restriction placed by. Magna Charta upon the exercise of the king's prerogative did not operate to abridge the power of Parliament over public and common rights. As was said in Gough v. Bell, 22 N. J. Law, 459: "Of necessity the jurisdiction to regulate and dispose of those rights which are common and public must reside in the legislative body, which is the representative of the people." Wooley v. Campbell, 37 N. J. Law, 163. "The power of the commonwealth by the Legislature over the sea, its shores, bays, and coves, and all tide waters, is not limited, like that of the crown at common law." Shaw, C. J., in Commonwealth v. Alger, 7 Cush. (Mass.) 82.

These public fishery rights were granted in the colonial charters to be held for the benefit of the inhabitants. Moulton v. Libbey, supra; Dill v. Wareham, 7 Mete. (Mass.) 438. The public rights were granted, accompanied, as in England, with the powers of legislative regulation and control. When the colonies became independent, the rights of common fishery remained in the states for the public benefit. Martin v. Waddell, supra. The states hold them in trust for the public, and, as to them, they exercise, not only the rights of sovereignty, but also the right of property. Commonwealth v. Hilton, 174 Mass. 29, 54 N. E. 362, 45 D. R. A. 475; McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248. In Stevens v. P. & N. R. R. Co., 34 N. J. Law, 532, 3 Am. St. Rep. 269, the court said: "The unqualified right of disposition to public or private uses, either absolutely or for a qualified estate, as in legislative discretion may be deemed most conducive to the public interest."

By the colonial ordinance of 1641 of the Massachusetts Bay Colony, which by usage and judicial adoption is taken to be a part of the common law of this state (Lapish v. Bangor Bank, 8 Me. 85), the title to the seashore between high and low water mark, not exceeding 100 rods, was vested in the owner of the upland. But it has always been held that the title is held subject to the public rights of fishery for the right of each householder to have free fishing so far as the sea ebbs and flows was declared in the same ordinance. Parker v. Cutler Milldam Co., supra; Moulton v. Libbey, supra; Weston v. Sampson, supra. It is therefore settled law that each state, unless it has parted with title, as by the colonial ordinances referred to, owns the bed of all tidal waters within its jurisdiction, and as well the tide waters themselves and the fish in or under them, so far as they are capable of ownership. For this purpose the state represents its people in their united sovereignty. The right which the people thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship. McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; State v. Peabody, 103 Me. 327, 69 Atl. 273. It is a right which "belongs to the people of the state alone, and which they are not obliged to share with the people of other states. McCready v. Virginia, supra; State v. Tower, 84 Me. 444, 24 Atl. 898; Commonwealth v. Hilton, supra; Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230; 8 Cyc. 1050.

Likewise, it is true that the Legislature of each state representing the people has full power to regulate and control such fisheries by legislation designed to secure the benefits of this public right in property to all its inhabitants. State v. Peabody, 103 Me. 327, 69 Atl. 273; Moulton v. Libbey, supra. And it is not to be assumed that a Legislature would undertake to control such fishery even by granting exclusive rights, except on the ground that the interest of the public would be thereby promoted. Commonwealth v. Hilton, supra.

Although there are a few authorities which seem to hold that a public right of fishery is inalienable by the state, the great weight of authority and judicial expression is to the effect that the state in the exercise of its power of regulation and control may grant exclusive rights of fishery to individuals. Commonwealth v. Hilton, supra; Commonwealth v. Vincent, 108 Mass. 441; Burnham v. Webster, 5 Mass. 265 (which was a Scarboro case); Cleaveland v. Norton, 6 Cush. (Mass.) 380; Wooley v. Campbell, 37 N. J. Law, 163; Gough v. Bell, 22 N. J. Law, 441; Lakeman v. Burnham, 7 Gray (Mass.) 437; Hathaway v. Thomas, 16 Gray (Mass.) 290; Commonwealth v. Bailey, 13 Allen (Mass.) 541; Chalker v. Dickinson, 1 Conn. 382, 6 Am. Dec. 250; Heckman v. Swett, 107 Cal. 276, 40 Pac, 420; Ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 D. Ed. 793. See Moor v. Veazie, 32 Me. 343, 52 Am. Dec. 655; Mullen v. Log Driving Co., 90 Me. 555, 38 Atl. 557. In the case of Commonwealth v. Hilton, 174 Mass. 29, 54 N. E. 362, 45 L. R. A. 475, which we have cited several times in this opinion, the right of the state to prohibit by authorized municipal regulation the taking of clams for sale by any except the inhabitants of the town in which the clam beds are situated was upheld, though in that case it appears that by general statutes the right of every citizen of the state to take clams "for his family use" was saved.

From the time of the adoption of the ordinance of 1641 until the present time it has been the policy of Massachusetts and Maine to regard the inhabitants of the several towns as entitled to superior or preferential privileges in the clam beds within their respective limits, and this policy has been repeatedly crystallized in the statutory law. In the colonial ordinance of 1641 it was declared that "every inhabitant, that is a householder shall have free fishing and fowling in any great ponds, bays, coves and...