#### * Commonwealth *versus*John Wentworth and Others.

Of the laws for regulating the fishery in *Penobscot*Bay and River.

This was an indictment, founded on the statute of 1813, c. 144, made “ for the preservation of fish in *Penobscot*River and Bay, and the several streams emptying into the same,” and was found at the Circuit Court of Common Pleas for the county of *Penobscot.*It charges the defendants, all being named as inhabitants of *Orrington,*in the said county, that, on the 2d of June, 1817, before sunrise of the same day, at said *Orrington,*in and by a certain net or wear, between the banks of *Penobscot*River, they unlawfully caught thirty alewives; whereby a forfeiture has accrued, one half to a fishwarden *176af *Bangor,*appointed by the selectmen of that town, he being the complainant, and the other to the town of *Orrington.*

The cause came up by appeal, and was submitted to the deter mination of this Court on a statement of facts; by which it was agreed that, if the said statute should be construed to regulate the taking of fish in the town of *Orrington,*and if the fishwardens of the town of *Bangor*have thereby an authority to enforce the provisions of the said act in *Orrington,*in this prosecution the defendants should be called on their recognizance. But if, in the opinion of the Court, the fishery in *Orrington*was to be considered as exclusively regulated by the statute of 1806, c. 33, the attorney for the commonwealth agreed to enter a *nol. pros.*

*Perham,*for the defendants,

insisted that the inhabitants of *Orrington*were not liable for taking fish within that town, in virtue of the statute on which the indictment was found. He cited the case of *Nickerson*vs. *Brackett,*(1) to show that they were privileged by the terms of their incorporation as a town. By the act of 1806, c. 33, the town is authorized to choose a committee, annually, to manage the fisheries within the town ; and power is given to the treasurer of the town to sue for all penalties incurred under * that act, for the use of the town. The statute of 1813 was not intended to take away the privileges

conferred by the act of incorporation (2) and the private act above mentioned. The act of 1813 repeals all the laws respecting the preservation of fish in *Penobscot*Bay and its tributary streams, except the act relating to the town of *Orrington;*and it provides, as to that, that the fourth section shall be so altered, that the committee of the town may appoint five days in each week, from the 1st of May to the 1st of July, annually, in which fish shall be taken. It is hence inferred that, as this law relating to the town is not repealed, the indictment cannot be maintained.

*M’Gaw,*for the commonwealth.

The inhabitants of *Orrington*are not entitled to exclusive privileges, as against the express provisions of the statute on which this indictment was found. The, case of *Nickerson*vs. *Brackett*was decided before that law was passed ; and the language of the present chief justice, in giving the opinion of the Court, in that case, upon this point, was that “ upon this incorporation, the privilege of fishing within the limits of the town, in the great river, and the streams running through the same, became a corporate right of property, *liable to be regulated, restrained, and limited, by the legislature.”*Now the statute of 1813 is general, and its object was the preservation of fish throughout the whole *177limits embraced by it. To allow exclusive privileges to the inhab itants of *Orrington,*would be inconsistent with that object. Besides, the whole scope of the statute goes to show that, whatever exclusive privileges were before enjoyed under the act of incorporation, and the subsequent law of 1806, relating to the fisheries in the town of *Orrington,*they are now restrained and limited by the provisions of the subsequent law of 1813.

(1)

10 *Mass. Rep.*276.

(2)

*Slot.*1787, c. 43.

Wilde, J.

We have looked into the two statutes, and are of opinion that there is no reasonable doubt as to their construction, in relation to the present question. By the first act the profits of the fishery within the town of *Orrington** are secured to the town, as a corporate right. This appears to have been the principal object of the act. A committee is to be appointed annually, to compel the observance of the laws respecting the passage-ways for fish, and to remove obstructions therefrom. They are also to appoint four days in each week, from the 1st of April to the 1st of July, annually, when fish may be taken ; and no person, unless authorized by the committee, is allowed to take any fish mentioned in the act, under certain penalties. But no penalty is imposed on the committee, or those employed under them, for any violation of the act; and it was probably supposed that such violation might be sufficiently punished under the provincial law of 1741. (3)

By the statute of 1810, c. 88, the fisheries in *Penobscot*Bay and River were regulated, with the exception of those within the town of *Orrington.*This law is repealed by the act of 1813, which extends to all the waters of *Penobscot*River, and the streams and ponds emptying into the same, without any exception in favor of *Orrington.*But, instead of such exception, there is a saving clause, to preserve in force the law of 1806, under which the inhabitants of that town enjoyed an exclusive privilege. By this difference between the act of 1810 and that of 1813, it manifestly appears to have been the intention of the legislature to extend the provisions of the latter law to the town of *Orrington,*so far as they may be found not inconsistent with the law of 1808 ; so that the same construction should be given to the provisions of the two statutes of 1813 and 1806 as would be proper, were they incorporated in one act.

Now, it must be observed that there are several important regu lotions, contained in the law of 1813, which are independent of the law of 1806, and which are as applicable to *Orrington*as they are to the other towns on the river.

*178The first I shall mention is the one respecting the salmon fisheries. This unquestionably extends to *Orrington;*for the ] law of 1806 relates only to the taking of shad and * alewives. In this respect, therefore, there are no conflict ing provisions.

2. It is well known that, in 1813, and for a short time previous, great complaints prevailed against certain newly-constructed wears, from the increase of which some apprehended the total extermination of the fish, especially of the salmon. By the 3d section of the law of 1813, these wears were regulated so that passage-ways were to be kept open three days in the week ; and it cannot be doubted that this important regulation extends to the waters within the town of *Orrington.*For, although this town has a right to take fish *Jive*days in the week, yet they, in common with the inhabitants of other towns, must enjoy their rights and privileges subject to such regulations as the public good may require. These wears might have been' interdicted altogether, without infringing any right oi privilege acquired by the town of *Orrington*under the law of 1806.

3. By the law of 1806, as has been already observed, the committee, and those acting under them, are unrestrained, by any penalty or forfeiture, in the liberty of taking fish at all times. There is no express prohibitory clause in the act against it, although it is very plain that the legislature intended them but four days in the week; and, by a prior law, they would have incurred a penalty by transgressing these limits. This law, however, was repealed by the act of 1813 ; so that, unless the provisions of this statute extend to the fish committee of *Orrington,*and those acting under them, they have an unlimited privilege, within the town, of taking fish at all times, against the manifest intent of the legislature.

But we have no doubt whatever that the provisions of the statute of 1813 extend to *Orrington;*and that the fishwardens of *Bangor*are authorized to enforce such provisions within the town of *Orrington,*and to prosecute for any breaches of that act. It is true that cases may be supposed which might be involved in some perplexity. For instance, at what time shall a day begin, under the law of * 1806 ? As a day, within the meaning of the law, is to be twenty-four hours, in some respects the time of beginning might seem to be immaterial; but in many cases it would probably be found to be important. Probably, it was the intention of the legislature that the day should begin at sunrise • and the law of 1806 may be explained by that of 1813. Again, suppose the time in which the taking of fish is inhibited by the act of 1813 should be included within the five days appointed by the committee for taking fish in *Orrington,*it might be doubted whether *179the committee could be allowed thus to evade the manifest intendment of the law of 1813. But it is unnecessary now to resolve these questions. It is a sufficient answer to the question under con sideration, that the fisheries in *Orrington*are regulated by the law of 1813 ; and that the defendants have disclosed no ground of defence, to control the general construction of that law.

According to the agreement under which the case has been submitted to the Court, the defendants must be called on their recognizance.

*180CASES ARGUED AND DETERMINED IK THE SUPREME JUDICIAL COURT, COUNTIES OF PLYMOUTH, BARNSTABLE, AND BRISTOL JULY TERM, 1818, AT TAUNTON. FOR THE PRESENT: Hon. ISAAC PARKER, Chief Justice. ^ Justices.

(3)

 Vide 2 *Mass. Laws,*1022.