Daniels v. . Homer , 139 N.C. 219 ( 1905 )

CONNOR and WALKER JJ., dissenting. The General Assembly of 1905 enacted chapter (220) 292, "To regulate fishing in Albemarle and Pamlico sounds and waters connected with them." The first five sections of that chapter define and regulate the manner of fishing in various sections of the sounds. Section 6 (marked 5 in the printed act) is as follows: "That it shall be unlawful for any person to set or fish any net or appliance of any kind for catching fish within one mile on north or south side of a line five miles long, running west from center of New Inlet or Oregon Inlet, or on north or south side of a line five miles long, running northwest from center of Hatteras Inlet." Section 7 makes the act operative only from 15 January to 15 May in each year — a "close" season of four months. We were told on the argument, and it was not controverted, besides it is a matter of common knowledge, that no small part of the sustenance and business interest of the people living adjacent to Albemarle and Pamlico sounds and the waters connected therewith, are dependent upon catching fish, whose supply has so greatly decreased that the United States Government has established and is operating at large expense, a fish hatchery at Edenton for the purpose of putting into the waters of Albemarle Sound millions of young shad and other fish each year, to replenish the diminishing supply; that the habit of the fish is to go out to sea and at the end of three years they return to the waters where they were liberated for the purpose of spawning, and that if nets are set across the inlets through which they return, the fish are either caught or detained beyond the spawning season and the supply of fish in Albemarle and Pamlico sounds and connecting waters will be thereby almost entirely destroyed and the Government hatchery at Edenton will become a useless expense and will doubtless be abandoned.

With a view of protecting the rights of the public against the cupidity of those who for their own profit would "kill the goose that lays the golden egg" for the benefit of a whole section of the State, whose (221) people are so largely interested in the fish industry, the General Assembly of 1905 enacted the above named chapter, creating a close season of four months during which the fish may freely return to our waters to lay their eggs, and for the purpose of enforcing its execution, when the profits arising from its violation would be a great temptation thereto, deemed it necessary to enact sections 8 and 9 of said act as follows: "Sec. 8. That any person who shall violate any section or provision of this act shall be guilty of a misdemeanor, and upon conviction in any county opposite the place at which said act is done shall be fined or imprisoned at the discretion of the court."

And inasmuch as pending trial and conviction, the destruction of the fish would go on to the great profit of the violators and to the irreparable injury of the public, the General Assembly thought proper to add to the abatement of the nuisance the penalty of the less of the nets — the means by which the law was violated — in the following: "Sec. 9. That it shall be the duty of the Oyster Commissioner, or Assistant Oyster Commissioner whenever an affidavit is delivered to him, stating that affiant is informed and believes that said act is being violated at any particular place, to go himself or send a deputy to such place, investigate the same, and they shall seize and remove all nets or other appliances setting or being used in violation of this act, sell the same at public auction, and apply proceeds of sale to payment of costs and expenses of such removal, and pay any balance remaining to the school fund of county nearest to where offense is committed."

An affidavit by fourteen citizens having been made 25 March, 1905, that B. T. Daniels was violating the aforesaid act by setting two nets in the waters of Pamlico Sound at the end of Croatan Sound, and also east of Roanoke Marshes Light House (where the fish returning to the sound through Hatteras Inlet would be caught during the "close" season provided by law), the defendant, the Assistant Oyster Commissioner, notified said Daniels that he would seize said (222) nets on 1 May, which nets were in water where the aforesaid law prohibited the setting or fishing said nets (as the plaintiff admits), and against the protest of said Daniels, did take said nets out of the water and placed them on shore under guard, whereupon this proceeding for claim and delivery for the nets was instituted. The defendant avowed his purpose to sell the said nets and apply the proceeds to the cost of seizing and removing the same, and apply the surplus of the proceeds, if any, to the school fund of the county as provided by said act.

There is no individual or property right to fishery in the waters mentioned in the act. The right of fishery, as well as hunting, rests in the State, and is subject absolutely to such regulations as the General Assembly may prescribe, and can be exercised only at such times and by such methods as it may see fit to permit. Hettrick v. Page, 82 N.C. 65; Rea v.Hampton, 101 N.C. 51; State v. Gallop, 126 N.C. and cases there cited at page 983; and this right may be exercised a marine league out to sea,Manchester v. Mass., 139 U.S. 240; and citizens of other states may be excluded. McCready v. Va., 94 U.S. 301. As the plaintiff admits his nets were set in waters forbidden by the act, his counsel admitted that the seizure was legal, but denied the right of the defendant to sell the nets as provided in the statute. But the State was sole judge of the penalty it should impose for a violation of its laws. It thought proper here to make the loss of the instruments used in such violation a part of the penalty, possibly to prevent a repetition of the offense, or as a surer deterrent of its commission.

The plaintiff contends that though his property is admitted by him to have been used in violation of law at the time of seizure, that the statute imposing as a penalty the loss of such property is unconstitutional in that there was no previous notice and trial. But as the General Assembly could prescribe the loss of the nets as a penalty, and the offense is admitted, there is nothing to try. As was said in Rea (223) v. Hampton, 101 N.C. at p. 55, "As the Legislature had the undoubted right to regulate the manner in which the right of fishing in Albemarle Sound should be exercised, the plaintiffs had no right to fish in its waters in any mode not allowed by law. The facts found show that they were fishing in violation of law, and it would be singular if they could ask thelaw to protect them in its violation." In Rose v. Hardie, 98 N.C. 44, a town ordinance was held valid which authorized all hogs running at large to be impounded and sold for the costs and penalty. Here the State made the penalty the forfeiture of the article used in violation of the act. InMowery v. Salisbury, 82 N.C. 175, a town ordinance was sustained which made the penalty for failure to pay the tax on a dog the right to kill the dog. At common law any personal chattel that even accidentally caused the death of a rational being was forfeited to the sovereign and sold and the proceeds distributed to the poor, as a cart that ran over a person, a weapon and the like. They were styled deodands. 1 Blk. Com., 300. And no trial or conviction of any person was necessary.

But the plaintiff contends that he might not have been using his nets in forbidden water, and if so, he was entitled to have that question determined by a jury trial before his nets were sold. As the plaintiff admits that his nets were so being used on this occasion, the proposition becomes a mere academic question in this case. In view, however, of the importance of the matter being settled, and in accordance with the wishes of the parties, we pass upon the legal point raised.

It was not seriously controverted, and could not be that an abatement of a nuisance must be summary and that a seizure can take place before any adjudication by legal process, the party having his remedy by proper proceedings for an illegal seizure. In Hettrick v. Page, 82 N.C. 65, Smith, C. J., held that fishing in waters, when (224) prohibited by law was a public nuisance, and even a private individual if injured thereby, or indeed any one else, may remove the impediment.

But the plaintiff insists that before his nets are sold he is entitled to have the fact determined, by a court, whether he has incurred the penalty by doing the illegal act. So he has, but it can be asserted in this very action to recover the nets before sale, or after sale by an action to recover the proceeds of sale or damages, or upon advertisement of sale, an injunction to prevent the sale. He has his full remedy, but it does not include a continuance of the nuisance to his individual profit and the public detriment while the question of violation of the statute is being determined. The identical point has been determined, and by courts of the highest authority. By a statute in New York, very similar to ours, passed in 1880, fishing at certain places was prohibited and made punishable as a misdemeanor. This not proving sufficiently effective, an amendment in 1883 authorized any person to "abate and summarily destroy," and it was made the duty of any game constable to "seize, and remove and forthwith destroy" any "net, pound or other means or device for taking or capturing fish" in violation of any law, then or thereafter enacted, for the protection of fish. In the Court of Appeals of New York, Lawton v. Steele, 119 N.Y. 226 (S. c., 7 L.R.A., 134), the act was held constitutional, affirming the court at General Term. Upon writ of error to the U.S. Supreme Court, this was again affirmed, Lawton v. Steele, 152 U.S. 133, the court holding that the authority to summarily destroy nets used in violation of the law for the protection of fish, "is a lawful exercise of the police power of the State and does not deprive the citizen of his property without due process of law." After stating the absolute power of the Legislature to regulate fishing and to provide for the protection of fish, the Court says: "Nor is a person whose property is seized under the act in question, without his legal remedy. If in fact his property has been used in violation of the act, he has no just reason to complain; if not, he may (225) replevy his nets from the officer seizing them, or if they have been destroyed, may have his action for their value. In such cases the burden would be upon the defendant to prove a justification under the statute. As was said by the Supreme Court of New Jersey in a similar case, Am. PrintWorks v. Lawrence, 21 N.J. L., 248, 259, the party is not, in point of fact deprived of a trial by jury. The evidence necessary to sustain the defense is changed. Even if the party were deprived of a trial by a jury, the statute is not, therefore, necessarily unconstitutional. Indeed, it is scarcely possible that any actual injustice could be done in the practical administration of the act." This decision by the court charged as the final tribunal, with the construction and enforcement of theFourteenth Amendment, should be conclusive.

The U.S. Supreme Court (152 U.S. 142), further says: "It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture and are ordinarily used for a lawful purpose. This, however, is by no means a conclusive answer. Many articles, such for instance as cards, dice and other articles used for gambling purposes, are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ban of the law and may be summarily destroyed. . . . The power of the Legislature to declare that which is perfectly innocent in itself to be unlawful, is beyond question (People v. West, 106 N.Y. 293), and in such ease the Legislature may annex to the prohibited act all the incidents of a criminal offense, including the destruction of property denounced by it as a public nuisance.' It further cites to same purport, Weller v. Snover, 42 N.J. L., 341, and Williams v.Blackwell, 2 H. C., 33, which sustained acts for the summary destruction of fish baskets and traps used to catch fish contrary to law. Lawton v. Steele has since been cited for this proposition as authority by (226) a unanimous court. Sentell v. R. R., 166 U.S. at p. 705.

Our Code, sections 1049, 1051, 1052 authorizes any police officer, constable, sheriff, justice of the peace, to summarily destroy any gaming table, etc., and the seizure of any money staked (which is not a nuisanceper se, any more than the fishing net), one-half to belong to the person seizing it, and the other half to the poor of the county. This is cited byDick, J., in North Carolina v. Vanderford, 35 Fed., 286, in sustaining the summary seizure and destruction of a barrel of "blockade" whiskey, and a similar statute was held constitutional. Garland v. State, 71 Ark. 138.

Certainly gambling in the back room of some village hotel, or private house, or stable loft, is not as injurious as the destruction of the fishing industry, upon which depends to a large extent the prosperity of twenty counties, and whose importance has attracted the attention of the Federal Government and caused a large expenditure to restore the depleted stock of fish, an expenditure which would be in vain if the General Assembly is powerless to authorize the prompt abatement of fishing nets at the inlets during the months when the fish return to lay their eggs, or to authorize such penalties, including the forfeiture of the nets illegally used, as the representatives of the people may deem necessary to suppress the nuisance.

The same ruling, as in Lawton v. Steele, supra, was made in Wisconsin, in a very able opinion by Cassoday, C. J. (1896), Rittenhaus v.Johnston, 32 L.R.A., 380. Lawton v. Steele has been recently quoted and followed. Burroughs v. Eastman, 101 Mich. 426, and Osborn v.Charlevoix, 114 Mich. 655; 13 A. F. (2 Ed.), 573, 576, 579 and notes. The plaintiff relies on Colon v. Lisk, 153 N.Y. 188, 609, but that case fully recognizes and follows Lawton v. Steele, originally decided by the same court, and merely holds that an extension of the same summary power to the seizure and sale of vessels was not necessitated by (227) the same urgency as was requisite as to nets in the water and that there should be condemnation proceedings before sale. Presumably it were better as to articles of that value and nature, that the right to sell should be adjudicated before sale.

As to the nets, the plaintiff (had he not admitted his violation of law) without detriment to his rights could have contested the allegation that the nets had been set within the forbidden limits or that they had been so used with his consent, or set up any other defense, in this proceeding of claim and delivery, or by an injunction to prevent a sale, or by action to recover the proceeds of sale and damages. On the other hand, the General Assembly had the power to authorize prompt abatement of the nuisance by seizure and sale of the nets, subject to the right of their owner to contest the fact of his violation of the law, by this, or any other of the remedies just enumerated.

As against the person actually creating the nuisance, it may be abated without notice. Jones v. Williams, 11 M. W., 176; Garrett on Nuisances, 314. Such is the law, recognized even as far as India. Ratanlal Dharajlal Eng. Indian Law of Torts, 403. Besides in this case, notice was actually given before removing the nets, and the plaintiff neither removed nor offered to remove his nets from the forbidden waters, though given the opportunity to do so by the notice given him by the defendant. The plaintiff has had his day in court by this very proceeding in claim and delivery and the nets are not yet sold. It is no deprivation of any right that he is the actor, the plaintiff, since (as the United States Supreme Court said in Lawton v. Steele, supra) the burden is on the defendant to justify the seizure. It is not a question of right but merely as to the form of legal procedure, whether the violator of the statute shall be plaintiff or defendant in the action, and as to that surely the Legislature is the judge.

As was said in S. v. Lytle, 138 N.C. 741, "A statute will (228) never be held unconstitutional if there is any reasonable doubt," — citing Sutton. v. Phillips, 116 N.C. 504. Can we say that an act is unconstitutional "beyond a reasonable doubt" when such legislation has been held constitutional by the Supreme Court of the United States and by the highest courts of New York, New Jersey and Wisconsin?

If the nets cannot be forfeited, then by having two sets of nets the plaintiff can replace his nets as fast as the officer carries the other off, and then in turn put in the first net when the second is seized. Thus the attempt to abate the nuisance would become a mere farcical race between the violator and the officer of the law. There is no analogy between the prompt seizure of property when required by reasons of public policy, when the rightfulness of such seizure can be afterwards investigated, and if wrongfully taken the article can be recovered or damages therefor, and the taking of human life which cannot be restored.

In the exercise of the police power, the General Assembly is not restricted to indictment, but may proceed by the summary process of abatement of the nuisance and imposing as a penalty the forfeiture or destruction (as it may deem best) of the article illegally used. An act of the Legislature, which speaks for the people in making its laws, is "the law of the land" unless there is a provision of the Constitution which forbids it to enact such law. We look in vain in that instrument for any provision which forbids legislation in furtherance of the police power, authorizing summary process of seizure of nets and their forfeiture when used in open violation of law. The right of seizure and destruction of the nets is not seriously denied. For a stronger reason then the alleged violator of the law cannot complain of the "sale at public auction" as that presupposes advertisement and delay, during which time, he can (as was done in this case) bring claim and delivery and recover the nets, if not used illegally; whereas if summarily destroyed, his sole remedy is an action for damages. He is in better case (229) than if the nets were destroyed. In either event, if he is proven to have used the nets illegally, he loses the nets, and it can make no difference to him whether they are destroyed or sold. The State is not compelled to commit an act of vandalism to be constitutional. It has found the criminal law an inefficient protection and that deprivation of the nets is necessary to prevent the violation of the law. The owner of the nets has his day in court to contest the fact of violation, by an action for damages if nets are summarily destroyed, and the additional remedy of claim and delivery if to be sold at public auction. He has nothing to complain of.

Our steady increase in population renders imperatively necessary the strict enforcement of all measures intended to protect or prevent interference with the sources of food supply for our people. The sovereign people of the State are in a bad case if they cannot protect the great fishing industry by providing that those who would destroy it by nets set at forbidden and vital places, during the four months prescribed, shall forfeit their nets. The General Assembly has found, and so says by its statute, that this remedy is necessary to enforce the execution of the law. Unless this is done the State is in fact utterly powerless to protect that large part of its people who are engaged in or dependent upon the great fish industry in its sounds and along its rivers, and the lawless element who disregard the law forbidding setting of nets, is exempt from control. The Constitution not having forbidden the Legislature to provide for the destruction or forfeiture and sale (as it may deem best) of nets illegally used, and the owner of the nets having his day in court, either by an action of damages or claim and delivery, this Court has no supervisory power to hold that either the destruction of the nets or their forfeiture and sale is the remedy which the Legislature must provide. That is a matter for its judgment. It may prescribe either remedy or both, and change it by subsequent enactment. The owner, if violating the law, has suffered a just punishment. If not violating it, he has his full remedy in court to recover the nets or damages as he (230) may elect.

In the same way the State takes property under the right of eminent domain and turns it over to a railroad corporation which pays for it afterwards. And this is for the same reason that if litigation must be had and terminated before the taking, it would seriously impair the benefit intended by the exercise of the powers of the State for "the greatest good to the greatest number." For the same reason the United States statutes for the enforcement of the Internal Revenues, secs. 3455, 3457, forfeit articles not lawfully stamped, or stills, etc., illegally used, direct them to be sold and the proceeds paid into the Federal treasury, unless before sale the owner shall proceed, as here, by action to recover the articles on the allegation that there was no illegal user.

There are other United States and State statutes imposing forfeitures. Section 3460, U.S. Rev. Stat., provides that where the value of the property seized is less than five hundred dollars, the property shall be advertised and sold, and the proceeds paid into the treasury, unless the owner (as in this case) comes in and by action asserts his rights. Conwayv. Stannard, 84 U.S. 404; Pitcher v. Faircloth, 135 Ala. 314. Where the amount is over $500, the government after seizure begins regular condemnation proceedings (21 A. E. (2 Ed.), 931, note 12), but the authorities all hold that this is only necessary because the statute requires it, and that when the condemnation is decreed, it relates back to the date of the offense (The Mary Celeste, 2 Lowell 354; Henderson's case, 81 U. 5., 44; N.C. v. Vanderford, 35 Fed., 286) as the forfeiture accrued then and the title passed to the government at that instant.

Such laws are not to be construed strictly, but reasonably, so as to carry out the intention of the Legislature. U.S. v. Stowell, 133 U.S. 12. As is pointed out in U.S. v. 56 Bbls. of Whiskey, 25 Fed. Cases, 1075 (No. 15,095), there is a clear distinction between (231) forfeiture of goods at common law in cases of treason and felony, which could take place only after conviction, and a statutory forfeiture of property because of its use for illegal purposes. In the latter case the offender is not on trial, nor before the court, unless he voluntarily comes in as a plaintiff to recover the goods. The statute, says the court, does not make the forfeiture the consequence of his conviction, but of his offense, which is inquired into by a seizure of the property while being illegally used, and proceedings of condemnation if required by statute, and if not, then by its destruction or sale unless the owner seeks an inquiry by claim and delivery or action for damages.

As was well said in Weimer v. Bunbury, 30 Mich. 211, there is nothing in the Constitution "that necessarily implies that due process of law must be judicial process. Much of the process by means of which the government is carried on and the order of society maintained is purely executive or administrative. Temporary deprivations of liberty or property must often take place through the action of ministerial or executive officers or functionaries, or even of private parties, where it has never been supposed that the common law would afford redress." Then, after instancing the arrest of a felon, flagrante delicto, without warrant, 4 Blk. Com., 292, and a traveler passing over the adjacent field when a public road becomes impassable, it is further said: "Our laws for the exercise of the right of eminent domain protect parties in going upon private grounds for the preliminary examinations and surveys. It may be said that in none of these cases is the deprivation final or permanent, but that is immaterial. The Constitution is as clearly violated when the citizen is unlawfully deprived of his liberty or property for a single hour, as when it is taken away altogether. Estrays were at the common law taken up and disposed of without judicial proceedings, 1 Blk. Com., 297." Then after mentioning statutes to the same (232) effect by which "the owner of stray beasts might be deprived of his ownership by ex parte proceedings not of a judicial character," and the abatement of nuisances by any one injured, who thus becomes "his own avenger or ministers redress to himself, 3 Blk. Corn., 5," and distress without a warrant, 3 Blk. Com., 6, and levy and sale for taxes without judicial decree, it is said that the destruction of a nuisance by a private party "is as lawful as if it had been preceded by a judgment of a competent court, the only difference being that the party, when called upon to justify the act, must in the one case prove the facts warranting it, while in the other he would be protected by the judgment." This applies in the present case where the violator of the law is deprived of his net,flagrante delicto, but has his remedy, in this action against the officer for the property, if unlawfully taken.

The Supreme Court of the United States, 12 U.S. (8 Cranch), 404, says in this connection: "In the eternal struggle that exists between the avarice, enterprise and combinations of individuals on the one hand, and the power charged with the administration of the laws on the other, severe laws are rendered necessary to enable the executive to carry into effect the measures of policy adopted by the Legislature. To them belongs the right to decide on what event a divesture of right shall take place, whether on the commission of the offense, the seizure or the condemnation. In this instance, we think that the commission of the offense makes the point of time on which the statutory transfer of right takes place."

No error.