State v. Bunker , 98 Me. 387 ( 1903 )

Wiswell, C. J.

After chapter 284, Public Laws of 1901, approved March 22, 1901, took effect, the only statute in this State which in any way regulated or related to the taking of clams from their beds was section 37 of that chapter, since the legislature by that act, in express terms repealed sections 1 to 33 of chap. 40 of the Revised Statutes, which sections included all of the previous existing statutes relating to the subject.

Section 37 of this chapter, in which the language of section 25 of chap. 40 of the Revised Statutes is retained, contains no prohibition against a person taking clams within the limits of a town of which he is not a resident, nor does it authorize the inhabitants of a town to adopt any by-law or regulation prohibiting a non-resident taking clams within the limits of their town, or requiring him to first obtain a license from the municipal officers of such town.

It is true that some portions of the section, as it now exists, are meaningless, and that there may be a very strong inference from the language of the section that the legislature intended to adopt further provisions to take the place of the repealed sections as to the authority of the inhabitants of towns to regulate the taking of shell fish within their town by non-residents thereof, but a statutory offense cannot be created by inference or implication, nor can the effect of a penal statute be extended beyond the plain meaning of the language used.

It is equally clear that without legislative authority the inhabitants of a town have no power to adopt by-laws or regulations controlling the subject of sea-shore fisheries.

It is unnecessary to consider the constitutionality of legislation which discriminates between residents and non-residents of a town in. this respect, since there is no such legislation.

It follows that the allegations in the indictment against the respondents do not constitute any offense under our laws.

In accordance with the stipulation of the report upon which the case comes to the law court, the entry will be, Judgment for respondent.