Commonwealth v. Allen , 1908 Pa. Super. LEXIS 141 ( 1908 )

Opinion by

Orrady, J.,

The defendant was adjudged guilty of taking fish with an illegally constructed eel basket, in one of the public waters of this commonwealth, and on the trial in' the court below he directly waived all irregularities in regard to the information and warrant, and entered his plea of not guilty, upon the contention that under the facts of the case he should be discharged from custody.

In August, 1905, he obtained a license from the treasurer of Bradford county to construct and operate an eel run or basket in the Chemung river, under the provisions of the Act of April 27, 1903, P. L. 319, which authorizes the taking of eels, upon procuring a specified license, and defines the manner in which they may be taken, etc.

The first section of the act makes it lawful to catch eels in the public waters of the commonwealth by use of fish baskets with wing walls, “provided that every basket so used shall be made of slats not less than one-half inch apart, with a movable bottom, which shall be taken out of each basket, so used, at sunrise and be kept out until sunset,” etc.

While this act repeals all acts or parts of acts with which it is inconsistent, it must be treated as a part of the general system of regulating, the catching of fish in the public waters of the commonwealth, and, as such, to be construed with the Act of May 29, .1901, P. L. 302, which by its title declares the species of fish which are game fish, and the species of fish which are commercially valuable for food, and also regulates the catching, and encourages the propagation of the same, etc.

The undisputed facts show that the defendant constructed a fish basket of wire screens, and having only one-quarter of the bottom movable, being entirely different from the basket required by the statute, which provides that it "shall be made of slats not less than one-half inch apart with a movable bottom.” Such ingenuity in substituting a device not warranted by the statute cannot be approved.

As stated in Commonwealth v. Bercaw, 30 Pa. Superior Ct. 335, the words of the statute indicate that what the legislature had in mind was the "manner” of fishing, and in Commonwealth v. Kenney, 32 Pa. Superior Ct. 544, we hold that the purpose of the act of 1901, is clearly defined in the very words of the title, namely, to regulate the catching, and encourage the propagation of game and food fish. These words reasonably invite an inquiry, not only into the number of the times when, and the methods by which such fish- may be lawfully taken, but also 'the methods deemed necessary by the legislature to encourage their propagation, and the modification, if any, of former legislation on the subject. The license issued to the defendant authorized him to construct and maintain a fish basket in strict conformity to the defined plans as set out in the statute, and none other. His attempt to evade its plain provisions fully justified the conclusion reached by the court below.

To admit the use of an unlawful device, and at the same time contend that the act was not violated because the fish taken were not of the species of game or food fish is not consistent with the doctrine of the decided cases: Commonwealth v. Kenney, 32 Pa. Superior Ct. 544.

Substituting a wire screen for slats, and having three-fourths of the bottom a permanent construction and immovablé was a manifest evasion of the legislative declaration that the whole bottom should be removed within the hours stated.

The basket as he maintained it, was a trap for every kind of fish that came down the stream, and how many would be unlawfully detained therein in their passage, would depend upon' the effectiveness of the contrivance to accomplish the purpose of the defendant. The fine imposed was fully warranted under the decisions of this court in the above-mentioned cases.

The judgment is affirmed.