Keel v. Board of Sup'rs , 126 Miss. 195 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree dismissing the original bill.

The appellants exhibited their bill of complaint against the appellee, alleging that the appellee had adopted the following ordinance:

“Be it further ordered, that it shall be unlawful to use any gill, cast or trammel nets, seines, barrel or hoop nets, wire or pound nets, or any device other than hook and line, for catching fish in any of the rivers, bays, bayous, lagoons, lakes or inlets in Harrison county. But this shall not apply to the waters known as the Back Bay of Biloxi, east of the county bridge, commonly called Back Bay Bridge, and shall not apply to the waters of the Bay of St. Louis, south of the L. & N. Bridge; provided, however, that mullet may be caught in a cast net in said waters the entire year, except during the months of March, April, and May, but no cast net shall ever be used in Wolf river north of De Plaines bayou, and in Bayou Benard north or west of Handsboro Bridge, and in Biloxi river north of Lorraine Bridge, and Tchouticabouffa river north of Tchouticabouffa Bridge.”

That a portion of the waters covered by this ordinance is brackish, in which waters are , to be found both fresh and salt water fish; that consequently the ordinance is void in so far as is applies to the catching of sea fish. The prayer of the bill is that the appellee be enjoined from enforcing the ordinance.

The only question argued by counsel, and the only one that we will deal with, is the validity vel non of the ordinance complained of.

It is true that under section 2304, Code of 1906, section 4699, Hemingway’s Code the jurisdiction given boards of supervisors over fish in their respective counties includes only fresh-water fish; nevertheless they are given by the following section of the Code full “authority for the protection and preservation of game and fish in their respective counties,” which, eso vi termini, includes the power to do whatever is necessary for their protection and preservation, and since it appears from the evidence that the use of the nets prohibited by the ordinance here in question would result in the catching of fresh-water fish as well as sea fish, and in disturbing their breeding grounds, authority to forbid the use of such nets is necessarily vested in the appellee, otherwise it cannot effectually discharge its duty of protecting and preserving the fresh-water fish in waters inhabited also by sea fish. That the fresh-ivater fish may be returned to the Avater after being caught in the nets- cannot have the effect of withdrawing from the appellee the power to forbid the use of the nets.

Affirmed.