State v. Peabody

• Decision Date: 19 December 1907
• Citation: 103 Me. 327,69 A. 273
• Parties: STATE v. PEABODY.
• Court: Maine Supreme Court

69 A. 273

103 Me. 327

STATE

v. PEABODY.

Supreme Judicial Court of Maine.

Dec. 19, 1907.

Report from Supreme Judicial Court, Knox County.

Clarence Peabody was charged with digging clams without a written permit. Case reported. Judgment for defendant.

Complaint against the defendant, a resident of the town of Friendship, for digging clams within the limits of the town of Cushing without first obtaining a written permit therefor from the municipal officers of Cushing according to the requirement of the regulations established by said town of Cushing at its annual meeting held in March, 1906. An agreed statement of facts was then filed, and the ease was sent to the law court on report. The material parts of the "agreed statement" are as follows:

"The annual town meeting of the town of Cushing was held March 12, 1906, at which meeting the town acted upon the following article in the warrant: 'To see if the town will vote to have a clam law, and, if so, the number of licenses to be issued, price of same, and whether they shall be issued to nonresidents.' Under the foregoing article it was voted as follows: 'To have a clam law as per chapter 161, Pub. Laws 1905, and to issue 150 licenses to expire April 1, 1907; price for licenses to be 25 cents, and not to issue licenses to nonresidents.'

"It is admitted that the defendant dug as alleged, and that he was a resident of Friendship at that time.

"Also that he had no license to dig clams, and that the clams were not for the consumption of himself or family, or for the consumption or use of the inhabitants of the town of Cushing or any person temporarily a resident therein.

"Upon the foregoing statement the law court is to render such judgment as the law requires."

Presumably the case reached the Supreme Judicial Court on appeal from some lower court.

Note: The "clam statute" (Rev. St. c. 41, § 34, as amended by Pub. Laws 1905, p. 175, c. 161, § 1), was before the law court for construction on another point in State v. Wallace, 102 Me. 229, 66 Atl. 476.

Argued before EMERY, C. J., and WHITEHOUSE. STROUT, PEABODY, CORNISH, and KING, JJ.

Phillip Howard, County Atty., for the State. Rodney I. Thompson, for defendant.

WHITEHOUSE, J. This is a complaint against the respondent, a resident of the town of Friendship, for digging clams within the limits of the town of Cushing without first obtaining a written permit therefor from the municipal officers of that town, according to the requirement of the regulations established by the town at its annual meeting held in March, 1906.

The case comes to this court on report, and the following material facts appear from the agreed statement certified by the justice presiding:

At the annual meeting above named the town acted upon the following article in the warrant: "To see if the town will vote to have a clam law, and, if so, the number of licenses to be issued, price of same, and whether they shall be issued to nonresidents." Upon this article the following action was taken:

"Voted to have a clam law as per chapter 161, p. 175, Pub. Laws 1905, and to issue 150 licenses to expire April 1, 1907; price for license to be 25 cents, and not to issue licenses to nonresidents."

It is admitted that the defendant dug clams as alleged; that he was a resident of the town of Friendship at that time; that he had no license therefor from the municipal officers of the town of Cushing; and that the clams were not for the consumption of himself or family, or for the consumption or use of the inhabitants of the town of Cushing or any person temporarily a resident therein.

Section 34, c. 41, Rev. St., as amended by section 1, c. 161, p. 175, Pub. Laws 1905, is in part as follows: "Towns at their annual meetings may fix the times in which clams may be taken within their limits, and the prices for which its municipal officers shall grant licenses or permits therefor, and the number to be granted; and when not so regulated by vote the municipal officers may fix the times and prices for which permits shall be granted, and the number to be granted. No person shall take clams within the limits of any towns having so regulated the taking of clams, without first obtaining a written license or permit from the municipal officers of such town, unless the clams are for the consumption of himself and family, or for the consumption or use of inhabitants of the town or any person temporarily a resident therein. Whoever takes clams contrary to the provisions of this section, shall for each offence, be fined not more than ten dollars, or imprisoned not more than thirty days."

It is contended in behalf of the defendant that this statute does not authorize the vote of the town excluding nonresidents from the privilege of obtaining such license; but, if it is to be deemed broad enough to authorize such a regulation, the statute must itself be held unconstitutional and void, because in contravention of the fourteenth amendment of the federal Constitution.

It is a well-settled principle of the common law that the fish in the waters of the state, including the sea within its limits as well as the game of its forests, belong to the people of the state in their collective sovereign capacity. Equally familiar and well recognized is the corollary of this proposition that the Legislature of each state representing the people possesses full power to regulate and control such fisheries by appropriate enactments designed to secure the benefits of this public right in property to all its inhabitants. This doctrine has frequently been affirmed by the Legislatures, and repeatedly declared by the judicial decisions of this and other states. It has also been approved by the Supreme Court of the United States. Moulton v. Libbey, 37 Me. 472, 59 Am. Dec. 57; State v. Snowman, 94 Me. 99, 46 Atl. 815, 50 L. R. A. 544, 80 Am. St. Rep. 380; State v. Rodman, 58 Minn. 393, 59 N. W. 1098; Ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; Com. v. Hilton, 174 Mass. 29, 54 N. E. 362, 45 L. R. A. 475; Geer v. State of Conn., 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793.

In Moulton v. Libbey, supra, it was held in an elaborate opinion that shell fisheries, including the digging of clams, are embraced in the common right of the people to fish in the sea, creeks, and arms thereof, and that the state as representing the people has authority to regulate the common rights and privileges of fishing.

In Com. v. Hilton, supra, It was held that under the statute and vote of the town there in question the selectmen had authority to make a regulation forbidding the taking of clams without a permit except for the purposes and in the quantities specified by the statute, and providing that permits should be granted only to inhabitants of the town. It was also held that the statute authorizing such action on the part of the town was constitutional.

In that case the vote...