Sacramento daily record-union., 1888-08-24
THE RIGHT 10 PUSH.
Fun Text of Justice Defines Compre-
hensive Decision.

hensive Decision.
The following decision, rendered. or
Wednesday by Justice James 3. Deyih e, il
upon matter of such general interest a nc
handles the subject with such clearneA
that it is given in full, though briei
synopsis of il appeared in the RECORD
UNION yesterday. The fishermen had
Joined together 10 make this test case and
over 800 of them, who are fishing between
here and San Francisco, are interested in
the decision. The case was ably presented
by Jay K. Brown, Deputy District A .tolney,
for the people and Add c. Hinlson for the
defendant. After the decision Mr.. Hink-
son acquiesced and informed his client that
he thought it useless to appeal. The nom
inal tine was therefore paid. The decision
is as follows:
In the Justice Court of Sacramento City, county
OF Sacramento, California, before James B.
Deyine Justice, etc-The People of the State
of California VS.. John Smith, defendant.
OPINION OF THE COURT
The defendant in this case is charged with
the crime OF mlsdemeanor, the complaint alleg-
ing that defendant, on the - day OF August,
lSSS, and within the limits of the county of sac
ramento, in this State, did then and there will
fully and unlawiully engage in and carry on
the business of fishing in the public waters of
California. with d boat and net, without first
taking out and procuring the necessary license
prescribed by law.
By statue of this State, approved March q,
1857, ii is enacted that Every person engaged
in the vocation of fishing in the public waters
of this State who shall use boat and net for the
purpose of such fishing must first obtain license
before engaging in such vocation. That
the Controller OF State shall pr pare and sign
suitable licenses, which shall be delivered to
the FIsh Commissioners and countersigned by
the Commission ; that the owner or user of each
fishing boat worked by less than three men shall
pay an annual license fee OF five dollars, and
tor each boat worked by three or more men a
fee of two and one half dollars for each man
so employed; that said license fees must be col
lected by the Fish Commissioners, or by some
one designated by them for that purpose who
are empowered TO arrest any person fishing, OF
using boat and net for fishing, without the
license required by the Act; and that the money
collected from such licenses shall be paid into
the State Treasury, and constitute fund TO be
applied to the payment of the expenses of prop
agating, protecting, restoring ard introducing
fish in the waters of this State etc.
At the trial 1t was proven, and admitted by
counsel for defendant, that the facts charged in
the complaint a'e true, and that defendant
being engaged in that vocation did. at the time
alleged, fish with boat and net in the Sacra-
mento river, navigable stream, at a point in
this county where The tide of the ocean ebbs
and flows, without first having procured
and taken out the license required by the Act
above referred to.
Admitting these, the defendant is guilty unless
the contention of his counsel be sustained that
he cannot be convicted ioI the reasons
First-The Legis ature not having declared
violation of the provision of this Act requiring
a license to be taken out, crime and not hav-
ing fixed Its punishment, that therefore no
crime has been committed, and no punishment
can be inflicted; and,
Second-That the public has common and
inherent right of fishing in all the navigable
waters of this State, wherein the tide ebbs and
flows, which cannot be eonstitutionally taxed
regulated, licensed Or restrained by the Legisla-
ture.
While it is true that the Act does not in ex-
press terms declare violation of its provision
prescribing a license a crime, or designate q
penalty for such violation, sill at the time it
was enacted Section 1876 of the Penal Code of
this State provided, and still provides, that
Every person who commences or carries on
any business trade, profession calling for the
transaction or carrying on OF which license is
required by any law of this State, without first
taking out or procuring the license prescribed
by such law, is guilty of misdemeanor' And
Section l9 of the same code declares that " the
crime OF mlsdemeanor is punishable by impris-
onment in the county jail not exceeding six
months, or by fine not exceeding $500, or by
10th"
Following the general rule of statutory con-
struction, il is to be presumed that the Legis-
lature at the time of the passage of this law was
conversant with the fact that these provisions
of the Penal Code were in existence, enacted it
in view thereof, and intended that violation
OF Its provision requiring license should
be misdemeanor punishable as such. But
apart from this, the present prosecution is in
Stituted under Section 435 OF the Penal Code
which expressly makes the defendants failure
to take out the license required amisdemeanor
consequently the first objection Tased is unten-
able.
| The particular clause of the Federal or State
Constitution to which this Act is claimed TO be
| repugnaut was not called to my attention at the
| trial. but from an examination of the legal pre-
cedents bearing on the subject, and keeping in
mind that Courts sit not to review or revise the
legislative action, but to enforce the Legislative
| Will, and that 1t is only when they find that the
Legislature has failed to keen within its consfi.
tutional limits that they are at liberty to dsre-
gard its action, l have concluded that the con-
stitutionality of the Act in question is unassail.
| able.
| There is no doubt that by the common law all
| persons have common and general right oi
| fishing in the sea, and in all bays, coves
| branches and arms of the sea, and in all other
| navigable or tide waters; and the law makes in
this respect no difference betwe shell fish and
swimming and floating fish. This right how
ever, like all other rights of fishing either in
the sea or rivers is subject to be restrained and
regulated by the Legislature and the State, a.
| representing the people has the right to regl
| late the common rights and privileges of fish
| ing. Angel on Watereourse, Section 65. There
| fore Maine statute prohibiting any person
| taking oysters or other shell fish from the wa
tiers of that State during certain months of the
year, without permit from the selectmen o
the town where the oysters or shell fish should
be found was upheld. Moulton VS.. Libby 81 Ne.
473. 60 in Durham VS.. lamphere Gray, 26S
the Massachusetts Supreme Court held valid
stalu ute prohibiting any person to take fish by
seining within one mile from certain shores o
| that State.
| and in Commonwealth VS. Vincent, los Mass
i46, Justice Gray said in 1871, that The Legis
| lature of State has the right to regulate tn,
time an dmanner of fishing in the sea within it
limits, and according to the opinions of mos
respectable judges may even grant exclusive
rights of fishing at particular places in tid
water"
This Act, plainly, is one enacted to provide
revenue and funds wheiewith to protect, en-
courage and foster the fishery interests of tbs
people of this State in its public waters: in fact
its very title, 'An Act to regulate the vocation
of fishing and to provide therefrom revenue fo
| the restoration and preservation of fish in tht
| waters of the state of California denotes il
purpose. The same power given to the State Il
pass laws for the protection and pres
ervation OF quail wild duck and deer
and 10 enact other game laws, permits ii to pas
and enforce this. and it seems to be the pecuia
province of State to legislate concerning tn.
preservation and protection of and to regulate
and control the rights of the people in its fisher,
and game interests, that thereby the good of thl
whole State be subseryed.
Another thing-ever since the case of Peopl.
VS.. Coleman a Cal, i6), which has been re
peatedly affirmed by later decisions, the powe
of the Legislature to tax trades professions an(
vocations has been settled, and 1t is said to be
matter completely within the control of, and
unless inhibited by the Constitution. eminentil
belonging TO and resting in the sound discre
ton of the Legislature. Now. If the State ha
this rover, it certainly follows that it can i'm
pose a license tax on the vocation followed b,
deiendant-a fiSherman-as well as on any othe
trade or vocation.
entertain no doubt as to the constitutionalit
of the crime of misdemeaner, ano ordered 10 al
pear for sentence.