Commonwealth v. Essex Co.

Shaw, C. J. The Essex Company, the defendants in this case, were indicted in the court of common pleas for a violation of the St. of 1856, c. 289, requiring that company, before the 1st of February 1857, to make, and forever thereafter maintain, in or around their dam in Lawrence, a suitable and sufficient fishway for the usual and unobstructed passage of fish, under a penalty of not less than $100 nor more than $500 a day for the time they should neglect to make and maintain such fishway after said 1st of February. This act was passed on the 6th of June 1856. The company, having failed to provide any new fishway after the passage of this act, were indicted for such neglect; and upon trial several grounds of defence were taken, which are set forth in the bill of exceptions. As the several questions substantially resolve themselves into one general consideration of the rights of this company, instead of considering the admissions and rejections of the evidence, and the particular rulings of the court thereon, in detail, it may be more convenient to state the real ground of controversy. The Essex Company were created a corporation by St. 1845, c. 163, for the purpose of constructing a dam across Merrimac River, and constructing one or more locks and canals in connection with said dam, for the purpose of creating a water power to use or sell, or lease to other persons or corporations to use, for manufacturing and mechanical purposes, and for constructing a main canal, for navigation or transports. By § 5, the said corporation was required to make and maintain, in the dam so built by them across said river, suitable and reasonable fish-ways, to be kept open at such seasons as are necessary and usual for the passage of fish. By § 7, they were required to — 244 — build such fishways in the mode prescribed by the county commissioners, after due notice and a public hearing of all parties interested, with power to the commissioners to examine and de termine whether the fishways have been built according to such mode prescribed, and, if so, to accept the same. By an additional act passed in May 1848, the company were authorized to increase their capital stock, but upon an express condition. St. 1848, c. 295. This condition was, “that said company shall be liable for all damages which shall be occasioned to the owners of fish rights existing above the said company’s dam, by the stopping or impeding the passage of fish up and down the Merrimac River by the said dam.” An adequate and constitutional mode of assessing these damages was provided by the act, which of course would not be resorted to when such damages should be agreed upon by the owners of such fish rights and the company, and paid. This act contained a further proviso, that nothing contained in the 7th section of the act of incorporation — the section requiring the company to make and maintain fishways — should be deemed to be a bar to such claim for damages. A second section of this act of 1848 provided that the act should take effect' whenever the stockholders, at a legal meeting, should accept the provisions of the preceding section, and file an authenticated copy of their vote of acceptance in the office of the secretary of the Commonwealth. It is conceded that such a vote, accepting this act, was duly passed, and an authenticated copy of it filed with the secretary of the Commonwealth soon after the passage of the act. The construction of this statute and the acts done under it by the defendant company will be considered hereafter. By the above statutes the obligation of the company in preserving the fishway on the Merrimac River, as a consideration and condition of the franchise granted them, was fixed and determined, until the passage of the act eight years after, St. 1856, c. 289, by which the company were required to make and forever thereafter maintain in or around their dam in Lawrence, a suitable and sufficient fishway for the usual and unobstructed pas — 245 — sage of fish, during the months of April, May, June, September and October, in every year. This is the statute upon which this indictment is found, and the question is, whether the company are liable for the heavy penalties therein declared, for neglect of the duty thus prescribed. In order to ascertain what was done by the company under their act of incorporation, and the additional act above cited, we recur to the bill of exceptions. At the trial the defendants offered to prove, that after the grant of their charter, and whilst their dam was in process of erection, they applied to the county commissioners, who, after ample public notice, and a full hearing of all parties interested, on the 12th of October 1847, prescribed the mode in which said company should construct fishways in their dam, and the same was duly made matter of record; and that thereupon the company did construct fishways in then dam, according to the prescription of said commissioners, and to their satisfaction as having been built according to their prescription, and that they have maintained the same during the time mentioned in the indictment. The defendants also offered to prove that immediately after the passage of the act of 1848, c. 295, they in due form, by a vote recorded, authenticated and transmitted to the secretary of the Commonwealth, accepted the said act, authorizing them to enlarge their capital stock and binding them to pay damages to all proprietors of fish rights above said dam; that at the time of passing said last mentioned act, the character of said fish-ways, so constructed, as not affording a usual and unobstructed passage to fish, was well known, and was brought to the notice of the legislature; that immediately after the passage of said last act, the defendants paid, under said act, the sum of about $26,000 to various owners of fish rights above said dam, as damage for hindering or impeding the passage of fish by their said dam, with the fishways aforesaid; that a fishway in or around said dam, securing the usual and unobstructed passage of fish would cost, as variously estimated, from $10,000 to $ 40,000; and that the number of stockholders in said company in 1848 — 246 — was about two hundred and fifty, and in 1856 about three hundred and fifty. This evidence was objected to by the counsel for the prosecution, on the ground that it was incompetent, and, if admitted, would furnish no legal defence; it was so ruled by the court, and the evidence was excluded. The defendants offering no other evidence, the court instructed the jury that upon the evidence the Commonwealth were entitled to a verdict, and accordingly the jury returned a verdict of guilty. In considering these exceptions, we are to regard the facts, of which proof was thus tendered and rejected, as having the same bearing which they would have had if actually proved. 1. The first question arising upon the construction of these statutes, which must obviously be considered and construed together is, what duty did the statute of 1856 require the defendant company to do ? . The expression is, to “ make and forever maintain in or around their dam a suitable and sufficient fishway for the usual and unobstructed passage of fish.” Construed according to the subject matter, we cannot fail to understand that this provision refers to the migratory fish, which pass, every spring, from the ocean up fresh water rivers to their head waters, to cast their spawn. No one conversant with the legislation of Massachusetts, and who has witnessed the constant anxiety of the government for the salmon, shad and alewives, and in regulating the fisheries of them, can doubt the purpose of this requirement. At this time, the fishways prescribed by the original act, and built as directed, had been in operation; and it appears, by the evidence offered, that after the few first years they had proved insufficient for the purpose. Perhaps it is not too much to presume, from the known natural instinct of these classes of fish to pursue the direct line of the natural current, against all obstacles, that no fishway around the dam would be sufficient. But without any such speculation, the evidence showed that the fishway which they had made and maintained had proved insufficient. Under these circumstances, the law requiring them to make and maintain a sufficient fishway to secure the unobstructed passage — 247 — of fish was in effect requiring them to make a new structure, at whatever cost, which at their peril should be sufficient. It appears by the evidence, that the first cost of such a structure would amount to a sum, variously estimated, from $10,000 to $40,000. 2. The next question is, whether, taken in connection with the other statutes above cited, it was competent for the legislature to impose the obligation, and require the performance of the duties prescribed in said statute, under the penalty therein expressed, and whether this indictment can be maintained for the non-performance of it. It seems to be well settled that the obstruction of the passage of the annual migratory fish through the rivers and streams of the commonwealth, is not an indictable offence at common law. But the right to have these fish pass up rivers and streams to the head waters thereof is a public right, and subject to regulation by the legislature ; though the right to take fish in waters not navigable belongs to the riparian owners of the soil along the shores and banks of such rivers and streams. Commonwealth v. Chapin, 5 Pick. 199. The liability, therefore, of the defendants to this indictment depends upon the statute. It is plainly within the province of the legislature to determine and regulate the use of all common and public rights and easements. The rights of navigation on tide waters, and of the use of streams not navigable for boats and rafts, are public, and such rights are subject to regulation. It sometimes happens that the full enjoyment of two public rights would, to some extent, interfere with each other ; as where a highway, turnpike or railroad crosses a navigable or boatable stream. It is then for the legislature to determine which shall yield, and to what extent, and whether wholly, or in part only, to the other ; and such question will ordinarily be determined by the legislature, according to their conviction of the greater preponderance of public necessity and convenience. - The most common case is that where each is required to yield in part, as in the case of a bridge over a navigable river, furnished with a draw, to be raised for the passage of vessels, at the expense of the bridge-owners, or by the navigators — 248 — desiring to pass it, as the legislature may direct. The bridge causes some impediment to the navigation; the raising of the draw causes some impediment to the land passengers. Sometimes a bridge is authorized without a draw, when the naviga tian is small, as in the case of the bridge over Charles River, between Brighton and Cambridge, and the railroad bridge over Miller’s River, between Somerville and Cambridge. Sometimes the legislature have required the bridge-owners to pay a sum to every passing vessel, equal to the damage caused by the impediment. These different provisions serve to illustrate the general principle, that all these public rights are subject to regulation ; such regulations will be governed by considerations of their relative value and importance. The manner in which the public right to free passage of fish up the several rivers and streams has been established and regulated, by the early colonial and provincial laws, as well is by the laws of the Commonwealth, is well established. Commonwealth v. Chapin, 5 Pick. 199. Vinton v. Welsh, 9 Pick. 87. In this last case, after citing the case of Stoughton v. Baker, 4 Mass. 572, and various other cases, Parker, C. J., sums up the result thus: “ In the first case cited, it was decided, that the colonial, provincial and constitutional legislatures having exercised the right for the public good, of regulating the fisheries in the several towns, the owners of several fisheries and of dams across rivers, held their property subject to such regulations as the legislature should, from time to time, for the preservation of the fish, prescribe. And that doctrine has been received and acted upon as law, from the time of that decision to the present.” 9 Pick. 92. By the decision in Stoughton v. Baker, all persons who may build a dam for mill purposes, on a stream annually frequented by fish, do it under an implied obligation to keep open sufficient sluices and fishways for the passage of fish, at the proper season ; and further, if a grant is made by the legislature to erect a dam across a river, it is to be construed to be under the same implied condition to keep open fishways, unless such implica tian is excluded by an express provision exempting them. — 249 — The same principle is recognized in Vinton v. Welsh, in deciding that an act incorporating the defendant and others to erect reservoir dams, without any provision for fishways, was not a repeal of former laws requiring them, because there was no clause of express repeal, or expressly exempting them from keeping such fishways. From this view of the law of Massachusetts, we come to the conclusion, that from the earliest times the right of the public to the passage of fish in rivers, and the private rights of riparian proprietors, incident to and dependent on the public right, have been subject to the regulation of the legislature: and the mode adopted by the legislature, whether by public or private acts, to secure and preserve such rights, has been by requiring, in the erection of dams, such sluices and fishways as would enable these migratory fish, according to their known habits and instincts, to pass from the lower to the higher level of the water, occasioned by such dam, so that, although their passage might be somewhat impeded, it would not be essentially obstructed thereby. This was the only remedy, because no private action would lie for the riparian proprietor, and no indictment at common law for the public injury. 3. We are now to consider what are the true construction and operation of the act of incorporation, by which the defendants were constituted and chartered. All provisions of statute, made for regulating the fisheries, are intended for the public benefit, and all persons, at their peril, must take notice of them; they are therefore public statutes, and the courts of law will,. ex officio, take notice of them. Burnham v. Webster, 5 Mass. 266. Commonwealth v. M’ Curdy, 5 Mass. 324. The objects proposed to be accomplished by the defendants were so far public in their nature, and designed to promote the public benefit, that it was quite competent for the legislature to exercise the power of eminent domain, by authorizing them to take private property when necessary, providing modes by which a full compensation therefor should be made. These objects were to establish a great water power for manufacturing — 250 — and mechanical purposes, and for improving the navigation of the river by locks and canals. Boston & Roxbury Mill Dam v Newman, 12 Pick. 467. Hazen v. Essex Co. 12 Cush. 477, 478. The usual provision was made for the assessment and payment of damages, which is made where private property is authorized to be taken for public use. The usual provision was also made for the preservation of the rights of fishery, both public and private, which have been made in like cases, by requiring the company to make and maintain fishways in said dam, which should be made to the satisfaction of the county commissioners. We believe it has been usual, in such acts of legislation, to delegate an authority to a committee or commissioners, to .see that certain provisions are specifically carried into effect; and we have, never known the legality of such delegation of power questioned. In the leading case of Stoughton v. Baker, before cited, it was held that where a certain portion of the things authorized to be done by a committee of three was done by one, to that extent the power was not well executed. It appears by the facts that the county commissioners did, m due form, prescribe the mode in which fishways should be made, and they were so made, and afterwards maintained, to the time of finding this indictment, in the mode thus prescribed. Under these circumstances, we are strongly inclined to the opinion that the company had performed the condition on which their charter was granted, and would be free from public prosecution. Whether, if the fishways actually provided had proved wholly unfit and inadequate to their purpose, and other measures could be provided within a reasonable cost, which could be shown to be probably effectual, the legislature could, by further legislation, have required the company to construct such other fishways, we give no opinion, for reasons which will appear in our construction of the additional act. 4. In putting a construction upon the additional act, (St. 1848, c. 295,) it is important to note the date, and the circumstances under which it was passed. At that time the dam had been in operation some time, with the fishway prescribed, and — 251 — proved to be unsuitable or insufficient to accomplish the pro posed purpose of providing for the passage of the fish. It appears that the company required legislative aid to enable them to increase their capital stock. It seems that the legislature seized the opportunity to make a better provision for the security of the fisheries, than that required in the act of incorporation had proved to be. This they did by a scheme to be proposed to the company by way of condition, and acceded to by them in legal form; a scheme entirely different ftom that proposed in the act of incorporation, and different from any which had been previously adopted in any similar case. The legislature had the power to regulate the public right, and diminish it or release it, as the best good of the public, on the whole, might in their judgment require. Whether that public good, expected from the fishery, consisted in affording an additional article of food to the people, or an employment for labor, or otherwise, the legislature might well compare this with the public advantage, in affording increased profitable labor and means of subsistence, and various benefits, from building up a large manufacturing town, and decide as the balance of public benefit should preponderate. Of this they must judge. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 1. But the legislature stood in a more delicate relation towards the various riparian owners of fish rights above the dam. The extinction of the public right to have the fish pass the dam would deprive these owners of their several fisheries, which were in effect private property. Towards them, therefore, the public stood, in some respects, as trustees, and their beneficial interests could not honorably be disregarded. The plan, therefore, proposed by this enactment, was to substitute, for the public right intended to be provided for by the fishways required, a provision for the payment of damages by the company to every riparian owner of fishing rights along the river above said dam, giving them a remedy against the company where none existed before, for all damages occasioned by the stopping or impeding the passage of fish up and down the Merrimac River by the said dam. It declared that the provision in 1 he — 252 — 7th section of the former act, requiring the making and maintaining of such fishways as the county commissioners should prescribe, should not be deemed a bar to such private claim for damages; implying that, but for this clause, such provision for fishways would have been a bar to any private claim for damages. It provides an easy and constitutional mode for every such private owner to obtain his damages, to be used, if the same should not be adjusted and paid by agreement, which each such private owner would have a right to make, in respect to his own several interest. It was the substitution of one onerous duty upon the company for another, more equitably and effectually to accomplish the same object. To preclude all question as to the right of the legislature thus to impose a new obligation upon the company, it was provided that the act should not take effect until it should be in terms accepted at a meeting of stockholders called for that purpose, and authentic evidence thereof filed in the office of the secretary of the Commonwealth, for the information and benefit of all persons concerned, as well those individual riparian owners who might claim their rights under it, as those persons who might afterwards acquire or hold shares in the stock of said company. This appears to us to be the direct meaning and construction of this enactment. It was not a new provision, requiring the better performance of a preexisting duty; it was substituting a new species of indemnity to parties, where none in any form existed before, either by an action of tort at common law, or by a claim for damages under any statute. Under these circumstances, it appears to us, especially after it has been acceded to by the company, and after they have paid a large sum of money in pursuance of it, that this enactment has in it all the elements of a contract, executed by one party and binding on the other. 5. The remaining question is whether the act of 1856 is justified by the provision in the Kev. Sts. c. 44, § 23, that acts of incorporation afterwards passed should be subject to amendment, alteration or repeal? That provision is, that every act of incorporation shall at all times be subject to amendment, — 253 — alteration or repeal, at the pleasure of the legislature; provided, that no such act shall be repealed, unless for violation of its charter or other default, when such charter shall contain an express provision limiting the duration of the same. The power of repeal is limited and qualified, and was so considered in the case of Crease v. Babcock, 23 Pick. 334. Does this come within the power of the legislature to amend or alter ? It seems to us that this power must have some limit, though it is difficult to define it. Suppose an authority has been given by law to a railroad corporation to purchase a lot of land for purposes connected with its business; and they pmchased such lot from a third party; could the legislature prohibit the company from holding it ? If so, in whom should it vest; or could the legislature direct it to revest in the grantor, or escheat to the public; or how otherwise ? Suppose a manufacturing company incorporated is authorized to erect a dam and flow a tract of meadow, and the owners claim gross damages, which are assessed and paid; can the legislature afterwards alter the act of incorporation so as to give to such meadow-owners future annual damages ? Perhaps from these extreme cases — for extreme cases are allowable to test a legal principle — the rule to be extracted is this; that where, under power in a charter, rights have been acquired and become vested, no amendment or alteration of the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted. It appears to us, in the present case,- that after the government, acting in behalf of the public, and also of all those riparian owners whose fish rights would be damnified by the defendants’ dam, with the fishway as it was, entered into a solemn and formal contract with the defendant company to exempt them from the obligation of making and maintaining a suitable and sufficient fishway, if such were practicable, by indemnifying all parties damnified in their several fisheries, and the defendant company had executed their part of the contract by the payment of a large sum of money, it was not competent for the legislature, without any change of circumstances, under — 254 — their authority to amend and alter the charter of the company, to pass a law requiring them to do the acts from which, by the terms of such contract, they had been exempted, and therefore that the said act was null and void, and this indictment founded upon it cannot be maintained. Exceptions sustained.