Josh v. Marshall

Ward, J.: The disposition of this case involves a construction of the “ Fisheries, Game and Forest Law,” being chapter 488 of the Laws of ■1892, as amended to- January 1, 1896. The. sections of that law particularly applicable here,-as they stood at the time that'the nets were .taken by the defendant, who was a special game, and fish protector, are the following: “ § 132. Ho fish shall be fished for, caught or killed in any man•mer or by any device, except angling,. * * * in Lake Ontario, within one mile of the shore, nor of any island therein.” “ § 134.. The meshes of nets used in, * * • * Lake Ontario * -x- * shall not be less than one and one-eighth, inch bar. * * * Whoever shall violate or attempt to violate the provisions of this section, shall be deemed guilty of misdemeanor,” etc. “ §-150. Fishing with nets, seines- * * * or other devices,. except •angling or placing, drawing or using the same in any of 'the rivers, lakes and inland waters of this State is prohibited except as permitted by this act, and except where otherwise provided. — 79 — “ § 151. It shall be the duty of the board of commissioners of fisheries, game and forest to prescribe rules and regulations for the purpose of granting all licenses to seines, fykes and nets in water when specially permitted by this act * * * and to cause a duly authenticated' copy of the same to be filed in the office of the Secretary of State, and if shall be the duty of the Secretary of State to print such rules and regulations in the volume, of session laws for the current year. Such rules and regulations shall take effect on the first day of September, eighteen hundred and ninety five, and thereafter fishing with seines, fykes and nets other than scapnets, dipnets and nets used for catching minnows for bait, without a license having been obtained therefor in accordance with such rules and regulations, is prohibited.” A violation of this- section is made a misdemeanor. “ § 32. It is the duty of every protector to seize, remove and forthwith destroy any. net, pound or other device for taking fish found in or upon any of the waters of this State where fishing with such nets or devices is prohibited or illegal, * * * and such nets * * * are declared to be a public nuisance and may be abated and summarily destroyed by any game protector, and no action for damages shall lie or be maintained against any person for such seizure or destruction.” These sections of the statutes thoroughly develop the legislative scheme for the protection of fish and the regulation of fishing within the waters of this State, and they are to be construed together. The record discloses that the nets of the plaintiffs that were seized by the defendant were not less than one and one-eightli inch bar. The northern boundary of the State of Hew York along Lake Ontario is the center of the lake. The place where, the nets were stretched was, therefore, within the boundaries of and subject to the jurisdiction of this State. The Legislature has the power to'regulate and control the right of fishing in the public waters of the State, and in the exercise of this power it may prohibit the taking of fish with nets in specified waters, and by its declaration make the setting of nets for that purpose a public nuisance, and authorize the summary abatement of the nuisance. (Lawton v. Steele, 119 N. Y. 226.) — 80 — The position taken by the respondents is to the effect that the Legislature, by sections 132 and 134 of the Game Law which we ha ve quoted, by implication permit fishing with nets, with meshes of not less than one and one-eighth inch bar without a license in Lake Ontario beyond the limits of-one mile from the shore; that the section of the statute requiring a license for fishing with these nets does not apply to this case, but only to cases specified in section 151 that are “ specially permitted by this act; ” and that there are a number of cases specified in the act Where special permission is ■ granted thereby to fish, and that in those cases only -is' a license ‘ required. “ In construing any statute the intention of the law makers must be sought forthat is the -grand central light in which all statutes must be read. The intention, however, is to be sought for in the language used.. But for the purpose of understanding the language the objects -the law makers had in view and the motives which moved them to enact the law, may be considered.” (Hudson Iron Co. v. Alger, 54 N. Y. 175.) . We think this position of the respondents is not tenable: It gives too narrow a construction to this remedial statute. -Such a construction should be given the statute as will fairly carry out the intent and purpose of the Legislature in creating it. As we have seen, section 134 prescribes the size of the “ meshes of nets used in * * * Lake ■ Ontario.” This must refer to the use of nets beyond a mile from the shore, as within that limit, by section 132, fishing, except, by angling, is absolutely forbidden. The effect of these two sections' is to authorize fishing with nets beyond.the mile limit in Lake Ontario, and they have all the force . and authority of an express permission to do so-. . ■ The same reason exists for. requiring a license in this case as in-one Where permission is expressly given. Section 150 prohibits all fishing with nets in the lakes and inland waters of this State, except such as is permitted by the act, and except where otherwise provided. These exceptions include the-right to fish with nets as provided in the other sections of the law. We are now brought to the consideration of the further question as to whether the plaintiffs were bound to establish that a license — 81 — had been granted them by the fish commissioners under section 151 in order to justify the use of their nets in "Lake Ontario. Upon the trial before the justice, the counsel for the defendant offered in evidence “ the rules and regulations of the fish, game and forest commissioners of the State of Hew York, adopted July 10, 1895, pursuant to section 151 of the Fisheries, Game and Forest Law, as amended by chapter 974 of the laws of 1895, printed in Session Laws of 1895, from page 2141 to page 2144 inclusive.” . The plaintiffs’ counsel objected to this as incompetent, upon the ground that there was no evidence before the court that any such rules or regulations were ever adopted. The objection was sustained. Turning to the volume quoted in this offer of evidence, there appears on page 2141 as follows: “ Rules and regulations of the commissioners of fisheries, gaine and forests of the State of Hew York.” Then follows a blank form for license, a blank for an application for a license, and rules and regulations governing the license and governing the use of nets in Lake Ontario. These rules and regulations, as printed, were not authenticated by the commissioners or certified in any manner by the Secretary of State, except the general certificate that the Secretary is required to make under chapter 682 of the Laws of 1892, entitled “ The Legislative Law.” The directions as to this certificate appear at pages 1676 and 1677 in volume 2 of the Laws of 1892, and have.no reference to the certification of such rules as we are considering, nor does the certificate of the Secretary of State in this volume, where the regulations purport to be printed, cover the case, the certificate simply being “ pursuant to the directions of chapter 682, Laws of 1892, entitled ' The Legislative Law,’ I hereby certify that the following volume of the Laws of this State was printed under my direction.” The court will not take judicial notice of the existence of these rules and regulations. (Palmer v. Aldridge, 16 Barb. 131.) If proper regulations under the statute were made and filed with the Secretary of State, the original should have been produced or a certified copy thereof under section 933 of the Code of Civil Procedure. Indeed, it is not contended by the learned counsel for the appellant that the blank regulations appearing in the volume referred to were competent evidence; but he insists that the regula — 82 — tions were proved upon the trial in another manner. The defendant offered to show upon the trial the papers establishing a conviction of the plaintiffs for a misdemeanor in using their nets in the lake before another justice of the peace, in Monroe county. We cannot see how this evidence was competent for any purpose, but it does not seem to have been objected to, nor does it appear affirmatively from the record that these proceedings were received in evidence; but .they form a part of the record in this case, and the reference made in that record to these rules and regulations is that the- counsel for the People offered them in evidence from pages 2141 to 2142 of the Session Laws of 1895. This was objected to by the defendants in' that proceeding and the.plaintiffs here, as incompetent, but the objection was overruled. How, the fact that this objectionable evidence was so offered and received over the objection of the plaintiffs who were the defendants in that proceeding does not conclude the plaintiffs in this action, and, therefore, in this action there was no legal evidence that the Commissioners had created any regulations, or if so, what those regulations were. The whole record in the criminal case was simply offered to show the plaintiffs’ conviction of a criminal offense. Section 151 makes it the duty of the Commissioners of Fisheries to make and"file in the office of the Secretary of. State rules and regulations as to the granting of licenses to fish with nets, “ and thereafter fishing with * * * nets * * * .without a license having been obtained therefor in accordance with such rules and regulations is prohibited.” It follows that if there were no rules or regulations, there was no prohibition against the plaintiffs’ fishing. - Prima facie, the seizing by the defendant of the plaintiffs’ nets was a trespass for which the plaintiffs were entitled to recover damages. If the defendant could justify because the plaintiffs had no license, it. devolved upon him. to show that the regulation providing therefor had been duly made and published. This is not the ordinary case where an act is prohibited by statute unless a license is obtained for the commission of the act and the machinery for the granting of the license is in full operation, as in the cases that have been decided under the Excise Law; but the prescribing of the rules and regulations was a condition precedent to the duty of the citizen — 83 — to obtain the license. He who seizes and destroys the property of another without his consent must strictly prove step by step the authority for doing it. We are clearly of the opinion that, as it did not appear that the board of Commissioners of Fisheries, Game and Forests had prescribed rules and regulations for the purpose of granting licenses under section 151, so that the license could be obtained by the plaintiffs to. fish with their nets beyond the mile limit, their property was not liable to confiscation and destruction as a nuisance; and that, they could maintain this action, and that the judgment appealed from should be affirmed, with costs. All concurred. Judgment affirmed, with costs.