P6REST AND STREAM. 



[March It, 1864. 



those afflicted with cantagious diseases; the restraint of 

 vagrants, beggars and habitual drunkards; the suppression 

 of obscene publications and houses of ill fame; and the 

 prohibition of gambling houses and places where intoxi- 

 cating liquors are sold. Beyond this, however, the State 

 may interefere 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 for the protection of such interests. (Barbier v. 

 Connolly, 113 U. S. 27; Kiclcl v. Pearson, 128 U. S. 1.) To 

 justify the State in thus interposing its authority in 

 behalf of the public, it must appear, first, that the in- 

 terest of the public generally, as distinguished from 

 those of a particular class require such interfer- 

 ence; and, second, that the means are reasonably 

 necessary for the accomplishment of the pm-pose, and not 

 unduly oppressive upon individuals. The legislature may 

 not, under the guise of protecting the public interests, 

 arbitrarily interfere with private business, or impose un- 

 usual and unnecessary restrictions upon lawful occupa- 

 tions. In other words, its determination as to what is a 

 proper exercise of its police powers is not final or con- 

 clusive, but is subject to the supervision of the courts. 

 Thus an act requiring the master of a vessel arriving from 

 a foreign port to report the name, birthplace and occupa- 

 tion of every passenger, and the owner of such vessel 

 to give a bond for every passenger so reported, condi- 

 tioned to indemnify the State against any expense for the 

 support of the persons named for four years thereafter, 

 was held by this court to be indefensible as an exercise of 

 the police power, and to be void as interfering with the 

 right of Congress to regulate commerce with foreign na- 

 tions. (Henderson v. Mayor, 92 U, S. 259.) A similar 

 statute of California, requiring a bond for certain classes 

 of passengers described, among which were "lewd and 

 debauched women," was also held to show very clearly 

 that the purpose was to extort money from a large class 

 of passengers, or to prevent their immigration to Cali- 

 fornia altogether, and was held to invade the right of Con- 

 gress. (Chy Lung v. Freeman, 92 U. S. 275.) So in Rail- 

 road Co. v. Husen, (95 U. S. 465,) a statute of Missouri 

 which prohibited the driving of Texas, Mexican, or In- 

 dian cattle into the State between certain dates in each 

 year was held to be in conflict with the commerce clause 

 of the Constitution, and not a legitimate exercise of the 

 police powers of the State, though it was admitted that 

 the State might for its self-protection prevent persons or 

 animals having contagious diseases from entering its ter- 

 ritory. In Roekivell v. Nearing (85 N. Y. 302), an act of 

 the Legislature of New York, which authorized the 

 seizure and sale without judicial process of all animals 

 found trespassing within private inclosures, was held to 

 be obnoxious to the constitutional provision that no per- 

 son should be deprived of his property without due pro- 

 cess of law. See also Austin v. Murray (16 Pick. 121); 

 Watertownv. Mayo (109 Mass. 315); The Slaughter-house 

 cases (16 Wall. 36); In re Cheesebrough (78 N. Y. 282); 

 Brown v. Perkins (12 Gi-ay, 89). In all these cases the 

 acts were held to be invalid as involving an unnecessary 

 invasion of the rights of property, and a practical inhibi- 

 tion of certain occupations harmless in themselves, and 

 which might be carried on without detriment to the pub- 

 lic interests. 



The preservation of game and fish, however, has always 

 been treated as within the proper domain of the police 

 power, and laws limiting the season within which birds 

 and wild animals may be killed or exposed for sale, and 

 prescribing the time and manner in which fish may be 

 caught, have been repeatedly upheld by the courts. Thus 

 in Smith v. Maryland, (18 How. 71,) it was held that the 

 State had a right to protect its fisheries in Chesapeake Bay 

 by making it unlawf ul to take or capture oysters with a 

 scoop or drag, and to inflict the penalty of forfeiture upon 

 the vessel employed in this pursuit. The avowed object 

 of the act was to prevent the destruction of the oysters by 

 the use of particular instruments in taking them. "It 

 does not touch," said the court, "the subject of the com- 

 mon liberty of taking oysters save for the purpose of 

 guarding it from injury to whom it may belong and by 

 whomsoever it may be enjoyed." It was held that the 

 right of forfeiture existed, even though the vessel was 

 enrolled for the coasting trade under the act of Congress. 

 So in Smith v. Levinus, (8 N. Y. 472,) a similar act was 

 held to be valid, although it vested certain legislative 

 powers in boards of supervisors, authorizing them to make 

 laws for the protection of shell and other fish. In State 

 v. Roberts, (59 N. H. 256,) which was an indictment for 

 taking fish out of navigable waters out of the season pre- 

 scribed by statute, it was said by the court: "At common 

 law the right of fishing in navigable waters was common 

 to all. The taking and selling of certain kinds of fish and 

 game at certain seasons of the year tended to the destruc- 

 tion of the privilege or right by "the destruction consequent 

 upon the unrestrained exercise of the right. This is 

 regarded as injurious to the community, and, therefore, 

 it is within the authority of the Legislature to impose 

 restriction and limitation upon the time and manner of 

 taking fish and game, considered valuable as articles of 

 food or merchandise. For this purpose fish and game laws 

 are enacted. The power to enact such laws has long been 

 exercised, and so beneficially for the public that it ought 

 not now to be called into question." (Commonwealth v. 

 Chapin, 5 Pick. 199; McCready v. Virginia, 94 U. S. 391; 

 Vinton v. Welsh, 9 Pick. 92; Commonwealths. Essex Co. 

 13 Gray, 248; f helps v. Racey, 60 N. Y. 10; Holyoke Co. v. 

 Lyman, 15 Wall. 500; Gentile v. State, 29 Ind. 409; State 

 v. Lewis, 33 N. E. R. 1024.) 



As the waters referred to in the act are unquestionably 

 within the jurisdiction of the State of New York, there 

 can be no valid objection to a law regulating the manner 

 in which fishing in these waters shall be carried on. 

 (Hooker v. Cummings, 20 Johns. 91.) The duty of pre- 

 serving the fisheries of a State from extinction, by pro- 

 hibiting exhaustive methods of fishing, or the use of such 

 destructive instruments as are likely to result in the ex- 

 termination of the young as well as the mature fish, is as 

 clear as its power to secure to its citizens, as far as possi- 

 ble, a supply of any other wholesome food. 



The main and only real difficulty connected with the 

 act in question is in its declaration that any net, etc., 

 maintained in violation of any law for the protection of 

 fisheries, is to be treated as a public nuisance, "and may 

 be abated and summarily destroyed by any person, and 

 it shall be the duty of each and every protector aforesaid 

 nd everv game constable to seize, remove and forthwith 

 estroy the same." The Legislature, however, undoubt- ' 



edly possessed the power not only to prohibit fishing by 

 nets in these waters, but to make it a criminal offense, 

 and to take such measures as were reasonable and neces- 

 sary to prevent such offenses in the future. It certainly 

 could not do this more effectually than by destroying the 

 means of the offense. If the nets were being used in a 

 manner detrimental to the interests of the public, we 

 think it was within the power of the Legislature to 

 declare them to be nuisances, and to authorize the officers 

 of the State to abate them. (Hart v. The Mayor, 9 Wend. 

 571; Meeker v. Van Rensselaer, 15 Wend. 897.) An act of 

 the Legislature which has for its object the preservation 

 of the public interests against the illegal depredations of 

 private individuals ought to be sustained, unless it is 

 plainly violative of the Constitution, or subversive of 

 private rights. In this case there can be no doubt of the 

 right of the Legislature to authorize judicial proceedings 

 to be taken for the condemnation of the nets in question, 

 and their sale or destruction by process of law. Congress 

 has assumed this power in a large number of cases, by 

 authorizing the condemnation of property which has been 

 made use of for the purpose of defrauding the revenue. 

 Examples of this are vessels illegally registered or owned, 

 or employed in smuggling or other illegal traffic; dis- 

 tilleries or breweries illegally carried on or operated, and 

 buildings standing upon or near the boundary line be- 

 tween the United States and another country, and used 

 as depots for smuggling goods. In all these cases, how- 

 ever, the forfeiture was decreed by judicial proceeding. 

 But where the property is of little value, and its use for 

 the illegal purpose is clear, the Legislature may declare it 

 to be a nuisance, and subject to summary abatement. 

 Instances of this are the power to kill diseased cattle; to 

 pull down houses in the path of conflagrations; the de- 

 struction of decayed fruit or fish or unwholesome meats, 

 or infected clothing, obscene books or pictures, or instru- 

 ments which can only be used for illegal purposes. While 

 the Legislature has no right arbitrarily to declare that to 

 be a nuisance which is clearly not so, a good deal must 

 be left to its discretion in that regard, and if the object 

 to be accomplished is conducive to the public interests, it 

 may exercise a large liberty of choice in the means em- 

 ployed. (Newark, &e. R'w'y Co. v. Hunt, 50 N. J. Law, 

 308; Blasier v. Miller, 10 Hun. 435; Mouse's case, 12 Coke, 

 62; Stone v. The Mayor, 25 Wend. 173; Am. Print Works 

 v. Lawrence,, 21 N. J. Law 248; Same v. Same, 23 Id. 590.) 



It is not easy to draw the line between cases where 

 property illegally used may be destroyed summarily and 

 where judicial proceedings are necessary for its condem- 

 nation. If the property were of great value, as, for in- 

 stance, if it were a vessel employed for smuggling or 

 other illegal purposes, it would be putting a dangerous 

 power in the hands of a custom officer to permit him to 

 sell or destroy it as a public nuisance, and the owner 

 would have good reason to complain of such act as de- 

 priving him of his property without due process of law. 

 But where the property is of trifling value, and its de- 

 struction is necessary to effect the object of a certain 

 statute, we think it is within the power of the Legisla- 

 ture to order its summary abatement. Por instance, if 

 the Legislature should prohibit the killing of fish by ex- 

 plosive shells, and should order the cartridges so used to 

 be destroyed, it would seem like belittling the dignity of 

 the judiciary to require such destruction to be preceded 

 by a solemn condemnation in a court of justice. The same 

 remark might be made of the cards, chips, and dice of a 

 gambling room. 



The value of the nets in question was but $15 apiece. 

 The cost of condemning one, (and the use of one is as 

 illegal as the use of a dozen,) by judicial proceeding, 

 would largely exceed the value of the net, and doubtless 

 the State would, in many cases, be deterred from execut- 

 ing the law by the expense. They could only be removed 

 from the water with difficulty, and were liable to injury 

 in the process of removal. The object of the law is un- 

 doubtedly a beneficent one, and the State ought not to be 

 hampered in its enforcement by the application of consti- 

 tutional provisions which are intended for the protection 

 of substantial rights of property. It is evident that the 

 efficacy of this statute would be seriously impaired by re- 

 quiring every net illegally used to be carefully taken from 

 the water, carried before a court or magistrate, notice of 

 seizure to be given by publication, and regular judicial 

 proceedings to be instituted for its condemnation. 



There is not a State in the Union which has not a con- 

 stitutional provision entitling persons charged with crime 

 to a trial by jury, and yet from time immemorial the 

 practice has been to tiy persons charged with petty 

 offenses before a police magistrate, who not only passes 

 upon the question of guilt, but metes out the proper pun- 

 ishment. This has never been treated as an infraction of 

 the Constitution, though technically a person may in this 

 way be deprived of his liberty without the intervention of 

 a jury. (Callan v. Wilson, 127 U. S. 540, and cases cited.) 

 So the summary abatement of nuisances without judicial 

 process of proceeding was well known to the common 

 law long prior to the adoption of the Constitution, and it 

 has never been supposed that the constitutional provision 

 in question in this case was intended to interfere with 

 the established principles in that regard. 



Nor is a person whose property is seized under the act 

 in question without his legal remedy. If in fact his 

 property has been used in violation of the act, he has no 

 just reason to complain; if not, he may replevy his nets 

 from the officer seizing them, or, if they have been 

 destroyed, may have his action for their value. In such 

 cases the burden would be upon the defendant to prove a 

 justification under the statute. As was said by the 

 Supreme Court of New Jersey in a similar case, (Am, Print 

 Works v. Lawrence, 21 N. J, Law, 248, 25d:) "The party 

 is not, in point of fact, deprived of a trial by jury. The 

 evidence necessary to sustain the defense is changed. 

 Even if the party were deprived of a trial by jury, the 

 statute is not, therefore, necessarily unconstitutional." 

 Indeed, it is scarcely possible that any actual injustice 

 could be done in the practical administration of the act. 



It is said, however, that the nets are not in themselves 

 a nuisance, but are perfectly lawful acts of manufacture, 

 and are ordinarily used for a lawful purpose. This is, 

 however, by no means a conclusive answer. Many ar- 

 ticles, such, for instance, as cards, dice, and other articles 

 used for gambling purposes, are perfectly harmless in 

 themselves, but may become nuisances by being put to an 

 illegal use, and in such cases fall within the ban of the 

 law and may be summarily destroyed. It is true that 

 this rule does not always follow from the illegal use of a 

 harmless article. A house may not be torn down because 



it is put to an illegal use, since it may be as readily used 

 for a lawful purpose, (Ely v. Supervisors, 36 N. Y. 297,) 

 but where minor articles of personal property are devoted 

 to such use the fact that they may be used for a lawful 

 purpose would not deprive the legislature of the power to 

 destroy them. The power of the legislature to declare 

 that which is perfectly innocent in itself to be unlawful 

 is beyond question, (People v. West, 106 N. Y. 293,) and 

 in such case the legislature, may annex to the prohibited 

 act all the incidents of a criminal offence, including the 

 destruction of property denounced by it as a public nuis- 

 ance. 



In Welter v. Snover (42 N. J. Law, 341), it was held that 

 a fish warden for a county, appointed by the Governor, 

 had a right, under an act of the Legislature, to enter upon 

 land and destroy a fish basket constructed in violation of 

 the statute, together with the materials of which it was 

 composed, so that it might not again be used. It was 

 stated in that case that "after a statute has declared an in- 

 vasion of a public right to be a nuisance it may be abated 

 by the destruction of the object used to effect it. The 

 person who, with actual or constructive notice of the law, 

 sets up such nuisance cannot sue the officer whose duty it 

 has been made by the statute to execute its provisions." 

 So in Williams v. Blaekwall (2 H. & C. 33), the right to 

 take possession of or destroy any engine placed or used for 

 catching salmon in contravention of law was held to ex- 

 tend to all persons, and was not limited to conservators or 

 officers appointed under the act. 



It is true there are several cases of a contrary purport. 

 Some of these cases, however, may be explained upon the 

 ground that the property seized was of considerable value 

 — (leek v. Anderson, 57 Cal. 251, boats as well as nets; 

 Dunn v. Burleigh, 62 Me. 24, teams and supplies in lum- 

 bering; King v. Hayes, 80 Me. 206, a horse) — in others the 

 court seems to have taken a more technical view of the 

 law than the necessities of the case or an adequate protec- 

 tion of the owner required. (Lowry v. Rainwater, 70 Mo. 

 152; State v. Rabbins, 124 Ind. 308; Ridgeway v. West, 60 

 Ind. 371.) 



Upon the wmole, we agi"ee with the Court of Appeals in 

 holding this act to be constitutional, and the judgment of 

 the Supreme Court is, therefore, Affirmed. 



SUPREME COURT OF THE UNITED STATES. 



No. 203.— October Tekm, 1893. 



George W.Lawtonetal., 1 In error to the Supreme 

 Plaintiffs m Erior, I Court of the gt £ te Qf 



William N.Steele. J New York. 

 [March 5, 1894.] 

 Mr. Chief Justice Fuller (with whom concurred Mr. 

 Justice Field and Mr. Justice Brewer) dissenting. 



In my opinion the legislation in question, so far as it 

 authorizes the summary destruction of fishing nets and 

 prohibits any action for damages on account of such de- 

 struction, is unconstitutional. 



Fishing nets are in themselves articles of property en- 

 titled to the protection of the law, and I am unwilling to 

 concede to the legislature of a State the power to declare 

 them public nuisances, even when put to use in a manner 

 forbidden by statute, and on that ground to justify their 

 abatement by seizure and destruction without process, . 

 notice, or the observance of any judicial form. 



The police power rests upon necessity and the right of ' 

 self-protection, but private property cannot be arbitrarily 

 invaded under the mere guise of police regulation, nor • 

 forfeited for the alleged violation of law by its owner, nor 

 destroyed by way of penalty inflicted upon him, without . 

 opportunity to be heard. 



It is, not doubted that the abatement of a nuisance must 

 be limited to the necessity of the occasion, and as the ille- 

 gal use of fishing nets would be terminated by their 

 withdrawal from the water and the public be fully pro- 

 tected by their detention, the lack of necessity for the • 

 arbitrary proceedings prescribed seems to me too obvious . 

 to be ignored. Nor do I perceive that the difficulty which 

 may attend their removal, the liability to injury in the ■ 

 process, and their comparatively small value ordinarily, , 

 affect the principle, or tend to show their summary- 

 destruction to be reasonably essential to the suppression 

 of the illegal use. Indeed, I think that that argument is. 

 to be deprecated as weakening the importance of the 

 preservation, without impairment in ever so slight a 

 degree, of constitutional guaranties. 



lam, therefore, constrained to withhold my assent to 

 the judgment just announced, and am authorized to say 

 that Mr. Justice Field and Mr. Justice Brew t er concur in 

 this dissent. 



Megantic Club. 



Boston, March 12. — The first meeting of the newly 

 elected directors of the Megantic Fish and Game Club 

 was held at Young's Hotel, Wednesday, March 7, and 

 the following were elected officers for the coming year: 

 Pres., Alexander Taylor, Jr., New York; Vice-Presidents, 

 Walter C. Prescott and Chas. A. Kilham, Boston; Sec'y, 

 Arthur W. Robinson, Boston; Treas., L. Dana Chapman, 

 Boston. 



The most important business of the evening was the 

 election of Dr. Heber Bishop a life member of the club. 

 Mr. Kilham made the motion and made a very compli- 

 mentary address in bringing the matter before the direc- 

 tors, praising Dr. Bishop for the many services he had 

 rendered the club, and further stated that the club owed 

 its existence to him and that he had done more for its 

 success than any one else. 



Another vote raising the salary of Supt. Phillips will 

 be pleasant news to the club members, who realize and! 

 appreciate the hard work and faithful services of Mr.. 

 Phillips. 



The new board of directors propose to make many- 

 improvements this season, to build two open fireplaces at 

 the club house, and in short to make the preserve so> 

 attractive that visitors going there will be so pleased with, 

 the benefits and conveniences derived from membership 

 that they will immediately , in order to avail themselves of 

 the privilege, buy stock in the corporation. 



Mr. Fred Viles, who is well known to all sportsmen, 

 has been engaged for steward for the coming season, 

 and under his management the diroctors feel confident 

 that satisfaction will be given to all. 



Arthur W. Robinson, Sec'y, 



