106 REPORT OF STATE BOARD OF FISH COMMISSIONERS. 



timber from its sawmill and box factory in the Truckee River, which 

 poisons the fish, and that unless restrained all the fish in the river will 

 be wholly exterminated. 



It would be a poor commentary upon the efiiciency of our law, if, in 

 such a case as this, we are refused a preventive remedy, and compelled 

 to wait until all the fish shall have been killed — all the injury done — 

 before the law will act. 



Furthermore, in order to show that a civil remedy may be invoked in 

 the case of public nuisance, where the commission of the same is made 

 a penal offense, we call the Court's attention to the Penal and Civil 

 Codes. Sections 370-1 of the Penal Code are substantially the same as 

 Sections 3479 and 3480 of the Civil Code. Yet, notwithstanding the 

 fact that the Penal Code makes the acts stated therein a penal offense, 

 the Legislature has by the Civil Code given a civil remedy for the same 

 wrongful acts, demonstrating conclusively that a civil remedy may be 

 invoked, notwithstanding the fact that a criminal action will lie. 



A criminal action is no bar to a civil suit. (Section 618 of Wharton's 

 Criminal Law, and cases cited.) 



Fish Commission has no Authority to Abate a Nuisance. 



Counsel say that " the protection of fish in private streams is exclusively 

 entrusted to the Fish Commissioners and the criminal courts." 



We insist, first, that the Truckee River is not a private stream. It is 

 one of the public rivers of this State. 



It is a sufiicient answer to this contention to say that no authority is 

 given to the Fish Commissioners to abate a nuisance. 



Their duties are to see that the laws for the preservation of fish and 

 game are enforced. They have no other powers to this end than to 

 invoke the aid of the courts. The Commissioners cannot judge of the 

 guilt or punish offenders for the violation of the game and fish laws. 



The authorities cited by counsel in support of their contention, is 

 where a specific, sufficient, and adequate remedy is provided by statute, 

 in which case such remedy is held exclusive. 



Such is the law in this State in reference to matters where a plain and 

 adequate remedy is provided. But the remedy must be sufficient and 

 adequate to make it exclusive. In this case the Fish Commission can 

 grant no relief — they can furnish no remedy whatever. Their only 

 function in this regard is to see that the laws are enforced — not to enforce 

 them them^elvoi^. 



