State v. Cleland , 1878 Me. LEXIS 84 ( 1878 )

Daneorth, J.

By a special act of the legislature, approved January 24, 1876, “ Matthew Cleland, his heirs and assigns, were authorized to erect fish weirs below low water mark, in tide waters . . in front of his land in Kobbinston; provided such weirs so erected shall not obstruct or interfere with navigation.”

On the eleventh day of February of the same year, the legislature passed a general act, c. 78, providing that any person intexxding to build a fish weir in tide waters, within the limits of any city or town in this state, may make application in wilting to the municipal officers thereof, who, after proper proceedings, “shall issue a license under their hands to the applicant, authorizing him to make said erection, . . if said officers, after a hearing, shall decide that such erection would not be an obstruction to navigation, or an injury to the rights of others, and shall determine to allow the same.”

The respondent is charged with a violation of the latter act. He produces no license, but, acting under the authority of Matthew Cleland, he justifies under the former. This pi’esents the question which is, by the report of the case, submitted to the court, whether the special act was defeated by the general one. Both acts took effect upon their approval. The first act, therefore, was in full force when the second was passed. The first was a specific grant, acting upon a particular thing, enuring to the benefit of a single individual, his heirs arid assigns. The second was a general act upon the same subject matter, and affecting the rights of persons generally. There is no allusion to the first act in the second, nor is there any repealing clause in the latter. The genex*al act does not in terms refer to any past acts, but relates to and provides only for the future. The right of Matthew had become complete and perfect, and without reference to the authority of the legislature to repeal such a grant, we cannot infer an intention to do so without the use of apt and sufficient words showing that purpose. As seen, no such words are used, nor is there any repugnance or inconsistency between the acts.

This right of building fish weirs is undoubtedly within the control of the legislature, and it is competent for that body to dispose of it by direct grant, or by such tribunal as may be constituted for that purpose, and upon such terms and conditions as may be prescribed. It is equally competent to dispose of a part of it in one way and a part in the other. The legislature has availed itself of this power in this case. To Matthew Cleland it conveyed by direct grant a special right, which became fixed and vested by the special law and which was undisturbed by the subsequent one.

As provided in the report,

A nolle prosequi is to be entered.

Barrows, Yirgin, Peters and Libbey, JJ., concurred.