#### George W. Lawton *et al.,*App’lts, *v.*William N. Steele, Resp’t.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Constitutional law—Game law—Laws 1880, chap. 591, as amended 1883, chap. 317, is constitutional.

The legislature has the power to prohibit the taking of fish with nets in specified waters and to make the setting of nets for that purpose a public nuisance, and § 2 of chapter 317 of the Laws of 1883, which directs that such nets may be summarily destroyed by any person, is constitutional.

2. Same.

The legislature may not declare that to be a crime which in its nature is and must be under all circumstances innocent, nor can it in defining crimes, or in declaring their punishment, transgress any fundamental right secured by the constitution, but it may, acting within these limits, make acts criminal which before were innocent and ordain punishment in future cases where before none could have been inflicted.

3. Same.

Where a public nuisance- consists in the location or use of tangible personal property so as to interfere with or obstruct a public right or regulation, the legislature may authorize its summary abatement by executive agencies without resort to judicial proceedings, and any injury or destruction of the property necessarily incident to the exercise of the summary jurisdiction interferes with no legal right of the owner.

4. Same.

The provision of the act of 1883 authorizing destruction of nets found on the land, on shores or islands adjacent to waters where the taking of fish by nets was prohibited, did not render the whole act unconstitutional, as the provisions of the law were [separable [and the valid provisions [could stand even if this were void.

Appeal from supreme court, general term, fourth department, reversing judgment in favor of plaintiffs and ordering new trial,

*E. G. Emerson,*for app’lts; *Elon B. Brown,*for resp’t.

1

 Affirming 51 Hun 643, *mem.*

Andrews, J.

The conclusions of the trial judge that Black Biver Bay is a part of Lake Ontario, within the meaning of chapter Ml of the Laws of 1886, and that the nets set therein were set in violation of the act, chapter 591 of the Laws of 1880, as amended by chapter 317 of the Laws of 1883, were affirmed by the general term. The trial judge, in his careful opinion, demonstrated the correctness of these conclusions, and nothing can be added to reinforce the argument by which they were .sustained.

The point of difference between the trial court and the general term relates to the constitutionality of the section of the act of 1880, as amended in 1883. That section is as follows:

> “Section 2. Any net found, or other means or device for taking or capturing fish, or whereby they may be taken or captured, ¡set, put, floated, had, found, or maintained in or upon any of the waters of this state, or upon the shores or islands in any waters in "this state, in violation of any existing or hereafter enacted statutes or laws for the protection of fish, is hereby declared to be, and is a public nuisance, and may be abated and summarily destroyed by any person; and it shall be the duty of each and every (game *582and fish) protector aforesaid, and of every game constable, to seize and remove and forthwith destroy the same, * * * and no action for damages shall be maintained against any person for, or on account of any such seizure and destruction.”

The defendant justified the seizure and destruction of the nets of the plaintiffs, as a game protector, under this ' statute, and established the justification, if the legislature had the constitutional power to authorize the summary remedy provided by the section in question. The trial'judge held the act in this respect to be unconstitutional, and ordered j udgment in favor of the plaintiffs for the value of the nets. The general term sustained the constitutionality of the statute and reversed the judgment. We concur with the general term for reasons which will now be stated.

The legislative power of the state, which by the constitution is vested in the senate and assembly, § 1, art. 3, covers every subject which in the distribution of the powers of government betweén the legislative, executive and judicial departments belongs by practice or usage, in England or in this country, to the legislative department, except in so far as such powers have been withheld or limited by the constitution itself, and subject also to such restrictions upon its exercise as may be found in the constitution of the United States. From this grant of legislative power-springs the right of the legislature to enact a criminal code, to define what acts shall constitute a criminal offense, what penalty shall be inflicted upon offenders, and generally to enact all laws-which the legislature shall deem expedient for the protection of public and private rights, and the prevention and punishment of' public wrongs. The legislature may not declare that to be a crime-which in its nature is and must be under all circumstances innocent, nor can it in defining crimes, or in declaring their punishment, transgress any fundamental right secured by the constitution. But it may, acting within these limits, make acts criminal which before were innocent, and ordain punishment in future cases where before none could have been inflicted. This in its-nature is a legislative power which by the constitution of the state is committed to the discretion of the legislative body. *Barker*v. People, 3 Cow., 686; *People*v. West, 106 N. Y., 293; 8 N. Y. State Rep., 713. The act in question declares that nets set in prohibited waters are public nuisances, and authorizes their summary destruction.

The statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative; power which precludes the legislature from enlarging the category of public nuisances, or from declaring places or property used t» the detriment of public interests or to the injury of the health, morals, or welfare of the community, public nuisances, although not such at common law. There are of course limitations upon the-exercise of this power. The legislature cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or interest is involved, declare; property a nuisance for the purpose of devoting it to des*583straction. If the court can judicially see that the statute is a mere evasion, or was framed for the purpose of individual oppression, it will set it aside as unconstitutional, but not otherwise. *In re*Jacobs, 98 N. Y., 98; Harlan, J., *Mugler*v. Kansas, 123 U. S., 661. There are numerous examples in recent legislation of the exercise of the legislative power to declare property held or used in violation of a particular statute a public nuisance, although such possession and use before the statute was lawful 'The prohibitory legislation relative to the manufacture or sale of intoxicating liquors in various states has in many cases been accompanied by provisions declaring the. place where liquor is unlawfully kept for sale, as well as the liquor itself, a common or public nuisance, and while the validity of prohibitory statutes in their operation upon liquors lawfully acquired or held before their passage, and in respect of the procedure authorized thereby, have been the subject of much contention in the courts, the right of the legislature by a new statute to impose upon property held or used in the violation of law the character of a public nuisance is generally admitted. See *Wynehamer*v. *People,*13 N. Y., 378; *Fisher*v. *Mc*Girr, 1 Gray, 1; *Mugler*v. *Kansas, supra.*The lawmaking power is not exhausted by a single exercise, nor limited to subjects covered by the common law.

The legislative power to regulate fishing in public waters has been exercised from the earliest period of the common law. The statute, 2 Hen. VI., C, 15, prohibited the use of nets in the Thames, if they obstruct navigation or the passage of fish. Lord Hale in his treatise De Jure Maris, page 23, says that *“*the fishing which the subject has in this or any other public or private river, or creek, fresh or salt, is subject to the laws for the conservation of fish and fry, which are many.”

In this state many statutes have been enacted, commencing at an early period, regulating the right of fishing in the waters of the state, prohibiting the use of nets or the talcing of fish at ■certain seasons, and for the protection of certain kinds of fish. 1 R. S., Ed’s ed., 687, *etseq.;*4 id., p. 96, *et seq.*It has become a ■settled principle of public law that power resides in the several states to regulate and control the right of fishing in the public waters within their respective jurisdictions. *Smith*v. *Maryland,*18 How., U. S., 71; *Hooker*v. *Cummings,*20 Johns., 101; *Smith*v. *Levinus,*8 N. Y., 472; 2 Kent. Com., 415.

We think it was competent for the legislature, in exercising the power of regulation of this common and public right, to prohibit the taking of fish with nets in specified waters, and by its declaration to make the setting of nets for that purpose a ¡oublic nuisance. The general definition of a nuisance given by Blackstone, vol. 3, p. 215, is “ anything that worketh hurt, inconvenience or damage.” It is generally true, as stated by a recent writer, Wood on Huisances, § 11, that nuisances arise from the violation of the common law, and not from the violation of a public statute. But this, we conceive, is true only where the statute creates a right or imposes an obligation and affixes a penalty for its violation, or gives a specific remedy which by the *584terms of the -statute or by construction is exclusive. See *Bulbrook*v. *Goodere,*3 Burr., 1770. But the principle stated has no-application where the statute itself prescribes that a particular act or property used for a noxious purpose shall be deemed a nuisance.

The legislature in the act in question, acting upon the theory and upon the fact (for so it must be assumed) that fishing with nets in prohibited waters is a public injury, have applied the doctrine of the common law to a case new in instance but not in principle and made the doing of the prohibited act a nuisance. This we think it could lawfully do. The more difficult question arises upon the provision in the second section of the act of 1883, which authorizes any person, and makes it the duty of the game protector to abate the nuisance caused by nets set in violation of law, by their summary destruction. It is insisted that the destruction of nets by an individual, or by an executive officer so authorized, without any judicial proceeding, is a deprivation of the owner of the nets of this property, without due process of law, in contravention of the constitution. The right of summary abatement of nuisances without judicial process or proceeding was an established principle of the common law long before the adoption of our constitution, and it has never been supposed that this common law principle was abrogated by the provision for the protection of life, liberty and property in our state constitution, although the exercise of the right might result in the destruction of property.

This question was referred to by Sutherland, J., in *Hart*v. *The Mayor, &c.,*9 Wend., 590. He said; “If this is a case in which the corporation or any other person had a right summarily to remove or abate this obstruction, then the objection that the appellants, by this course of proceeding, may be deprived of their property without due process of law, or trial by jury, has no application. Formal legal proceedings and trial by jury are not appropriate to, and have never been used in such cases.” See, also, opinion of Edmonds, Senator, in same case, page 609. In the *Incense Case,*5 How., U. S., 504, Judge McLean, speaking of this subject, said: “ The acknowledged police power of a state often extends to the destruction of property. A nuisance may be-abated. Everything prejudicial to the health and morals of a city may be removed.” In *Rockwell*v. *Nearing,*35 N. Y., 308, Porter, J., speaking of the constitutional provision, said: “ There were-many examples of summary proceedings which were recognized as due process of law at the date of the constitution, and to them the prohibition has no application.” Quarantine and health laws-have been enacted from time to time from the organization of our state government, authorizing the summary destruction of infected cargo, clothing or other articles, by officers designated, and no-doubt has been suggested as to their constitutionality. In *Hart*v. *The Mayor, &c., supra,*a question was raised as to the validity of a city ordinance subjecting a float moored in the Albany basin-tu summary seizure and sale upon failure of the owner to remove the same after notice. The court held the ordinance to be void as *585not within the power conferred upon the city hy its charter, hut it was held that the common law right of abatement existed, although the removal of the float in question involved, its destruction. *Van Wormer*v. *The*Mayor, 15 Wend., 263, sustained the right of the corporation to dig down a lot in the city to abate a nuisance, although in the process of abatement buildings thereon were pulled down. In *Meeker*v. *Van*Rensselaer, 15 Wend., 397, the court justified the act of the defendant, as an individual citizen, in tearing down a filthy tenement house which was a nuisance, to prevent the spread of the Asiatic cholera.

These authorities sufficiently establish the proposition that the constitutional guaranty does not take away the common law right of abatement of nuisances by summary proceedings, without judicial trial or process. But in the process of abating a nuisance there are limitations both in respect of the agencies which may be employed, and as to what may be done in execution of the remedy. The general proposition has been asserted in text books, and repeated in judicial opinions, that any person may abate a public nuisance. But the best considered authorities in this country and England now hold that a public nuisance can only be abated by an individual where it obstructs his private right, or interferes at the time with his enjoyment of a right common to many, as the right of passage upon the public highway, and he thereby sustains a special injury. *Brown*v. Perkins, 12 Gray, 89; *Mayor of Colchester*v. *Brooke,*7 Q. B., 339. *Dimes*v. *Petley,*15 id., 276; *Fort Plain Bridge Co.*v. *Smith,*30 N. Y., 44; *Harrower*v. *Ritson,*37 Barb., 301.

The public remedy is ordinarily by indictment for the punishment of the offender, wherein on judgment of conviction the removal or destruction of the thing constituting the nuisance, if physical and'tangible, may be adjudged, or by bill in equity filed in behalf of the people. But the remedy by judicial prosecution *in rem*or *in personam,*is not, we conceive, exclusive, where the statute, in a particular case, gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished. There are nuisances arising from conduct, which can only be abated by the arrest and punishment of the offender, and in such cases it is obvious that the legislature could not directly direct the sheriff or other officer to seize and flog or imprison the culprit. The infliction of punishment for crime is the prerogative of the court, and cannot be usurped by the legislature. The legislature can only define the offense and prescribe the measure of punishment, where guilt shall have been judicially ascertained. But as the legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abatement by executive officers, without the intervention of judicial proceedings, in cases analogous to those where the remedy by summary abatement existed at common law. Marvin, J., in his able opinion in *Griffith*v. *McCullum,*46 Barb., 561, speaking of the remedy for the abatement of nuisances, says: “ That which is exclusively a common law or public nuisance cannot be abated *586by the private acts of individuals. The remedy is by indictment, or criminal prosecution, unless the statute has provided some other remedy.”

The cases of *Hart*v. *The*Mayor, *supra, Van Wormer*v. *Albany, supra,*and *Meeker*v. *Van Rensselaer, supra,*show that the public-remedy is not in all cases confined to a judicial prosecution. But the remedy by summary abatement can not be extended beyond the purpose implied in the words, and must be confined to doing what is necessary to accomplish it. And here lies, we think, the stress of the question now presented. It can not be denied that in many cases a nuisance can only be abated by the destruction of the property in which it consists. The cases of infected cargo, or clothing and of impure and unwholesome food are plainly of this description. They are nuisances *per se,*a-nd their abatement is their destruction. So also there can be little doubt, as we conceive, that obscene books or pictures, or implements only capable of an illegal use, may be destroyed as a part of the process of abating the nuisance they create, if so directed by statute. The keeping of a bawdy house, or a house for the resort of lewd and dissolute people, is a nuisance at common law. But the tearing down of the building so kept would not be justified as the exercise of the power of summary abatemeilt, and it would add nothing we think to the justification that a statute was produced authorizing the destruction of the building summarily as a part of the remedy. The nuisance consists in the case supposed in the conduct of the owner or occupants of the house, in using or allowing it to be used for the immoral purpose, and the remedy would be' to stop the use. This'would be the only mode of abatement in such case known to the common law, and the destruction of the building for this purpose would have no sanction in common law or precedent. See *Babcock*v. *City of Buffalo,*56 N. Y.. 268; *Barclay*v. *Commonwealth,*25 Pa. St., 503; *Ely*v. *Supervisors, etc.,*36 N. Y., 297.

But where a public nuisance consists in the location or use of tangible, personal property, so as to interfere with or obstruct a public right or regulation, as in the case of the float in the Albany Basin, 9 Wend., 571, or the nets in the present case, the legislature may, we think, authorize its summary abatement by executive agencies, without resort to judicial proceedings, and any injury or destruction of the property necessarily incident to the exercise of the summary jurisdiction interferes with no legal right of the owner. But the legislature could not go further. It could not decree the destruction or forfeiture of property used so as to constitute a nuisance, as a punishment of the wrong, nor even we think to prevent a future illegal use of the property, it not being a nuisance *per se,*and appoint officers to execute its mandate. The plain reason is that due process of law requires a hearing and trial before punishment or before forfeiture of property can be adjudged for the owner’s misconduct. Such legislation would be a plain usurpation by the legislature of judicial powers, and under guise of exercising the power of summary abatement of nuisances, the legislature can not take into its own hands the enforcement of the *587criminal or *quasi*criminal law. See opinion of Sliaw, Ch. J. in *Fisher*v. *McGirr,*supra, and in *Brown*v. *Perkins,*12 Gray, 89.

The inquiry in the present case comes to this: Whether the destruction of the nets set in violation of law, authorized and required by the act of 1883, is simply a proper, reasonable and necessary regulation for the abatement of the nuisance, or transcends that purpose, and is to be regarded as the imposition and infliction of a forfeiture of the owners’ right of property in the nets, in the nature of a punishment. We regard the case as very near the border line, but we think the legislation may be fairly sustained on the ground that the destruction of nets so placed is a reasonable incident of the power of the abatement of the nuisance. The owner of the nets is deprived of his property, but not as the direct object of the law, but as incident to the abatement of the nuisance. Where a private person is authorized to abate a public nuisance, as in case of a house built in a highway, or a gate across it, which obstructs and prevents his passage thereon, it was long ago held that he was not required to observe particular care in abating the nuisance, and that, although the gate might have been opened without cutting it down, yet the cutting down would be lawful. *Lodie*v. *Arnold, 2*Salk., 458, and cases cited But the general rule undoubtedly is that the abatement must be limited by necessity, and no wanton and unnecessary injury must be committed 3 BL, 6, *note.*It is conceivable that nets illegally set could, with the use of care, be removed without destroying them. But in view of their position, the difficulty attending their removal, the liability to injury in the process, their comparative^ small value, we think the legislature could adjudge their destruction as a reasonable means of abating the nuisance.

These views lead to an affirmance of the order of the general term. The case of *Weller*v. *Snover,*42 N. J. Law, 341, tends to sustain the conclusion we have reached. The action in that case was trespass for entering the plaintiffs lands, bordering a non-navigable stream in New Jersey, and destroying a fish basket, in the waters diverted therefrom, placed for the catching of fish, contrary to a statute. The court held the statute to be a justification.

The case of *Williams*v. *Blackwall, 2*Hurlst. & Colt., 33, arose under an act of parliament which authorized the summary destruction, by fish wardens, of what was known as salmon engines, being fish nets set in violation of the act. The case is not an authority upon the power of one legislature under the limitations of the state constitution, but the legislation upon which the action was founded shows that in a country governed by the principles of Magna Charta, such legislation is not deemed inconsistent with the fundamental doctrines of civil liberty. It is insisted that the provision in the act of 1883 authorizes the destruction of nets found on the land, or shores or islands adjacent to waters where taking of fish by nets is prohibited, and that this part of the statute is in any view unconstitutional. Upon this premise it is insisted that the whole section must fall, as the statute, if unconstitutional as to one provision, is unconstitutional as a whole. This is not, we think, the general rule of law *588where provisions of a statute are separable, one of which only is void. On the contrary the general rule requires the court to-sustain the valid provisions, while rejecting the others. Where the void matter is so blended with the good that they cannot be separated, or where the court can judicially see that the legislature only intended the statute to be enforced in its entirety, and that by rejecting part the general purpose of the statute would be-defeated, the court, if compelled to defeat the main purpose of the statute, will not strive to save any part. See *Fisher*v. *McGirr, supra.*

The order granting a new trial should be affirmed and judgment absolute ordered for the defendant on the stipulation, with costs.

All concur, except O’Brien, J., not sitting.