#### Edward Vinton *et al. versus*Jonas Welsh.

Where a statute gives a *qui tam*action for a penalty, several persons cannot join together in the suit as informers.

A statute provided that a town might regulate the fishery in a river passing through it and appoint a committee to enforce the regulations and prosecute violations of them, and also gave a penalty against the owners of dams on the river if they did not keep sufficient passage-ways open for fish, the penalty to be recovered, one third to the use of the informer, and two thirds to the use of the town; *held,*that the committee could not maintain an action for such a penalty in their own names for the use of the town.

In Massachusetts, the legislature having always exercised the right of regulating fisheries in rivers not navigable, the common law right of fishery in the riparian proprietors is subject to such regulations as the legislature may make.

The *St.*1817, *c,*151, with regard to the fishery in Monatiquot river, is not repealed by the St. 1818, *c.*35, incorporating the proprietors of mills on the same river.

This was an action of debt to recover a penalty. In the writ the plaintiffs describe themselves as “a committee of the town of Braintree for the purpose hereinafter mentioned, and who sue for the use and benefit of the town of Braintree.”

By the first section of *St.*1817, c. 151, the inhabitants of the town of Braintree are authorized to regulate at their annual •meeting in March or April, the taking of fish in the Monatiquot river within that town, and the regulations thus made are to continue in force for a year, and until new regulations are made, and it is made their duty at this meeting to choose “ three discreet persons by ballot, whose duty it shall be to inspect said river, to cause the regulations respecting said fishery to be carried into effect, and to prosecute all violations thereof that shall come to their knowledge.”

The second section requires the owners or occupiers of dams across the river, during the time the fish are passing up, to keep open a passage through, over, or round their respective dams, sufficient for the passage of the fish, to the satisfaction of the selectmen of the town, under penalty of a sum not less than twenty, nor more than fifty dollars, for every twenty-four hours’ neglect to open a passage, after being required in writing by the committee to do so.

t’he third section inflicts a penalty for making wears.

The fourth section authorizes any inhabitant of the town, being a freeholder, to prosecute for the penalties given by the *89act *j*and by section sixth, one third of all penalties recovered goes to the use of the complainant, and the other two thirds to the use of the town.

This action was brought to recover the penalty given by the second section of the act. The first count recites the provisions of the act, and avers that the plaintiffs were chosen a committee, that the defendant occupied a dam, &c. on May 22d, 1827, that the fish were then passing, that although he was duly notified, he neglected for the space of twenty-four hours to open a passage, and that he had thereby incurred a forfeiture of not less than twenty, nor more than fifty dollars, whereby an action had accrued to the plaintiffs, “a committee as aforesaid,” to demand and have to the use of the town of Braintree, &c.

The second count is similar, except that it demands *$*200 as a penalty for ten days’ neglect to open a passage.

The defendant pleaded, 1. The general issue, *nil debet;*on which issue was joined.

2. The defendant pleaded, (protesting that the inhabitants of Braintree had not any right to take or dispose of the fish in the river, or to require the opening of passage ways &c.) that the Monatiquot is not an arm of the sea, or navigable by any boats, but that it is owned by the abutters on it, and is traversed by divers dams, &c. lawfully built and maintained, &c.; that on June 12th, 1818, an act [Si. 1818, c. 35,] was passed, “to incorporate the proprietors of mills on Monatiquot river in Braintree,” by which the defendant and others were made a corporation, and empowered .to make the reserves of water wished for by them, as such proprietors, of the waters in certain ponds, (being all the ponds which are the sources of the river,) with power to erect dams to raise the water in the ponds and to draw it off at pleasure for the use of the mills ; that the corporation was established, and the provisions of the act carried into effect ; that the defendant then was, and has ever since been, the proprietor of a mill on the river, and a member of the corporation, and that he and the other members have a right to use and appropriate, for their own benefit, all the waters "n the river, by virtue of the act, including all the water from the ponds ; that fish will not ascend rivers when they are excluded from the ponds above ; and that the legislature in*90tended by the act to grant to the corporation' the right ol obstructing the passage of fish up to the ponds, and over or round the dams, and that the waters should be exclusively used for mills ; and that the defendant was not obliged to keep open any passage for the fish.

The plaintiffs replied, that the defendant was obliged, by the statute mentioned in the declaration, to keep open a passage &c. tendering an issue to the country, which was joined.

At the trial the defendant submitted to the court,

1. That the plaintiffs could not maintain this action, or any action, under the statute, to recover a penalty, as a committee, to the use of the town.

2. The defendant contended, that the statute relied on in the declaration did not confer upon the town of Braintree a right to the fishery in Monatiquot river ; that the river being unnavigable, and not flowed by the tide waters, the legislature could not vest the right in the town ; but that the right of fishery belonged to the riparian proprietors, and could not be disposed of by the legislature without their consent. But the judge ruled this point and the preceding one, against the de fendant, reserving them for the opinion of the whole Court.

3. The defendant also insisted, that the act of incorporation of the mill-proprietors repealed all preceding acts inconsistent with it, and that if the town of Braintree ever had any right, it was taken away by that act, and that the provisions of that act were inconsistent with, and therefore repealed, the previous act. relied on in the declaration. This question was also reserved for the opinion of the whole Court.

A verdict was found for the plaintiffs, that the defendant was indebted in the sum of two hundred dollars. Judgment was to be entered on the verdict, or the plaintiffs to become nonsuit, according to the opinion of the whole Court.

Sullivan, and *Metcalf,*for the defendant.

The plaintiffs cannot maintain an action as a committee, for this penalty. The statute only authorizes them to prosecute the violations of regulations made by the town. The penalties can only be sued for in the manner directed in the 4th section. A joint action cannot be maintained by the plaintiffs as common informers considering their description as a committee as surplusage, foi *91there tan be no joint interest in a penalty. Hammond on Parties, 48; 5 Dane’s Abr. 244 ; *Commonwealth*v. *Messenger,*4 Mass. R. 462 ; *Fleming*v. *Bailey,*5 East, 313.

The town of Braintree has not, either by the common law, or the law of Massachusetts, an exclusive right of fishery in this river. *Pease*v. *Adams,*2 Connect. 481 ; *Palmer*v. *Mulli gan,*3 Caines’s R. 319 ; *The People*v. *Platt,*17 Johns. R. 195; *Hooker*v. *Cummings,*20 Johns. R. 90; *Carson*v. *Blazer,*2 Binney, 475 ; Col. Ord. 1641, Anc. Charters, &c. 148 ; *Prov. St.*9 *Ann. c.*3 ; *Prov. St.*15 *Geo.*2, c. 6 ; *Prov. St.*19 *Geo.*2, c. 2. If the town of Braintree ever had any right over this fishery, it was taken away by the statute incorporating the proprietors of the mills. *St.*1787, c. 35, 1 Spec. Laws, 183 ; *St.*1790, c. 17, 1 Spec. Laws, 287 ; *St.*Mar. 6, 1773, 3 Spec Laws, *App.*38 ; *St.*1819, c. 125, 5 Spec. Laws, 356 ; *Randolph*v. *Braintree,*4 Mass. R. 315 ; *Stoughton*v. *Baker,*4 Mass. R. 522 ; *Somerset*v. *Dighton,*12 Mass. R. 384.

*Richardson,*for the plaintiffs.

The right of the legislature to regulate fisheries in streams, and to give the benefits of them to towns, is well settled. It is a right which has been exercised from the earliest times. *Commonwealth*v. *Chapin,*5 Pick. 199. The statute incorporating the proprietors of the mills did not repeal the fish act. As to the form of action, the reg-Nations to be made by the town extended to the fish-ways, which the selectmen were to examine, and a neglect on the part of the defendant after notice, to provide a sufficient passage for the fish, was such a violation of the regulations as the committee were bound to prosecute.

The opinion of the Court was afterward drawn up by

Parker C. J.

We consider it very clear that this action cannot be sustained by the plaintiffs as a committee of the inhabitants of Braintree. No authority is given by the statute to the committee therein provided to be chosen, to commence a suit for the penalty. A popular action is given to recover one half to the use of the person suing and the other half to the inhabitants of the town. The committee do not sue under that act, and they demand the whole of the penalty for the town. The inhabitants themselves, as a municipal body, could not *92maintain an action, neither can their committee, professedly acting as such. Nor can they be considered as entitled to the suit as individuals, for it is not a joint action that is given by the statute. The authority given to the committee by the first section of the statute, to prosecute for any violations of the statute, is obviously limited to such violations as may relate to the regulations made by virtue of that section. The verdict must be set aside therefore, and the plaintiffs be nonsuited ; and this finishes our duty in regard to this case.

We have however been urged by the counsel for both parties to express an opinion on the general question, whether the proprietors of the mills would be liable in a suit properly brought, for the penalty for obstructing by their dams the passage of the fish into the ponds, which they are authorized by the statute of 1818, c. 35, to preserve as reservoirs for the use of their mills It is not generally expedient to discuss or decide questions beyond those which must necessarily be settled to dispose of the case. But there having been an elaborate argument, and there being a prospect of putting an end to controversies, we depart from our general rule, so far as to express our opinion upon the matters submitted by the argument.

The penalty sued for is prescribed by the statute of 1817, *c.*151. The 2d section provides, that the owners or occupiers of dams across the river Monatiquot shall, during the time the fish are passing up, constantly keep open a passage through, over, or round their respective dams, sufficient for the passage of the fish, to the satisfaction of the selectmen of the town of Braintree,*under the penalty, &c.

It has been argued, that as the fishery in rivers not navigable belongs to the proprietors of the banks of the river, the legislature had no constitutional right to divest them, and vest the franchise in the inhabitants of the town through which the river passes ; and upon the principles of the English common law, the argument is well founded ; but the constant course of legislation upon this subject from the first settlement of the country, we think has qualified this right, so far as to subject it to the control of the legislature in the manner and to the extent it has been immemorially exercised. It is not necessary to go minutely into the subject^ that having been done repeatedly in *93cases heretofore decided. It is enough to refer to them. *Stoughton*v. Baker, 4 Mass. R. 522; *Burnham*v. *Webster,*5 Mass. R. 266 ; *Nickerson*v. *Brackett,*10 Mass. R. 212; *Commonwealth*v. *M'Curdy,*5 Mass. R. 324 ; *Commonwealth*v. *Chapin,*5 Pick. 199. In the first case cjted, it was decided, that the colonial, provincial, and constitutional legislatures having exercised the right for the public good, of regulating the fisheries in the several towns, the owners of several fisheries and of dams across rivers, held their property subject to such regulations as the legislature should from time to time, for the preservation of the fish, prescribe. And that doctrine has been received and acted upon as law, from the time of that decision to the present.

It is urged, however, that this statute respecting the fishery in the town of Braintree, has been virtually repealed by the statute incorporating the defendant and others ; in which statute authority is ■ given to stop the waters in the ponds by means of dams across the river. But there is no express repeal, nor any strong implication of it, because the objects of the two statutes are not necessarily inconsistent. The legislature, without doubt, meant to give the same right in the dams to be erected, which proprietors of other dams had ; that is, to maintain them, sub • ject only to the inconvenience of keeping open a passage for fish during a small portion of the year. Without questioning the right of the legislature to discontinue the privilege of a passage-way for fish when the public interest shall require it, we see no ground to suppose that an authority to erect dams will *per se*repeal an antecedent provision for passage-ways through all dams upon the river.