County of Hancock v. Eastern River Lock & Sluice Co.

The opinion of the Court was drawn up by

Shepley J.

The action is debt, to recover penalties of the defendants, for neglecting after due notice to make and keep open a sufficient and convenient passage way through their dam across the Eastern River, for the free passage of fish. The act of the 24th of March, 1835, provides, that if in the opinion of the warden the passage shall not be sufficient, or if there be no passage, “ said fish warden or wardens, shall forthwith give notice to the owner or occupant of such dam of such insufficiency; and of what is required to make such passage or sluice way sufficient and convenient, or to make such new passage or sluice way; and of the time in which the same shall be done, giving a reasonable time therefor.” And it provides, in case of neglect, that the fish warden may make it, and recover the expense of the owner or occupant. By an additional act of March 30, 1836, a daily penalty is imposed of not less than five, nor more than thirty dollars for neglecting or refusing to open and maintain such passage way, “ after being duly notified by any one or more of the county fish wardens.” The act of 1836 does not prescribe any notice, and there can be no doubt, that the notice alluded to was that prescribed by the act of 1835. Before a penalty can be recovered there must be a strict compliance with all the duties enjoined upon them by those claiming it. Neither in the notice given to the agent of the defendants, nor in the written notice to the clerk, is there any “ time in which the same shall be done” stated ; and yet this is expressly required by the statute. In the second notice what was required to be done was made known only by way of recital of ■what be had in the former notice directed. Whether a penalty could be recovered when the only evidence of what was required of the party was to be derived by inference from a recital, that it had before been required, might deserve consideration. But it is not necessary to decide upon such defect, for the one first noticed is clearly sufficient to prevent a recovery of tbe penalty.

It is contended, that the obstruction was illegal, and that notice might therefore be dispensed with. But to recover the penalties provided by the statutes, the conditions must be performed upon which only the statutes give them.

Exceptions sustained.