The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-11-21

Legislature lnIenueu W AnSAo"o
Landing Nets in the Appliances to
Be Used.
Below is a full text of the opinion
in the wetherill- Elliott case handed
down by Judge Craig in Monroe coun-
ty last week. The matter at issue
was the Interpretation of the act OF
May %, 1899, with reference to fishing.
The opinion is as follows:
This is proceedings under Section
1, of the Act of Assembly of 22 May,
1889, p. l.. 267. 1t was conceded at the
argument that the decision Of the case
rests with us, without the Intervention
of a jury; Com. VS.. Waldman, lao Pa
SO.
1t Is charged that the defendant vio-
lated the law in using a net, an apph-
ance other than rod, hook and line,
whilst catching trout. The uncontra-
dicted evidence is, and we find from
the testimony that the defendant did,
on the 18th of April 1899, fish for trout
in McMichaefs Creek, Monroe county,
Pennsylvania, using rod. hook and line,
with fly and reel and, after hooking q
trout, further employed a landing net
for the purpose of lifting it from it's
shore. and putting it into his physical
possession Is this the catching OF n
fish, by making use of net or any
other appliance, except rod, hook and
line. within the meaning of the act OF
assembly.
The language Of the act of assembly
Is this:
WHAT 1T MEANS.
That, hereafter no person or per-
sons shall cast draw. fasten, or other
wise make use of any seine, drift-net
fkye-net. or net or nets of any other
description. or use any other appliance,
for the catching of fish. except rod,
hook and line. in any rivers, streams,
or waters of this commonwealth, ETC.
Manifestly, if we interpret the words,
"rOd. hook and line" within the limi-
tation of their literal import then it
would be obnoxious to this act to use
a reel or fly, or bait, or bob, or Sinker,
or suuid in connection with rod, hook
and line. when fishing for game fish;
for these are appliances for catching
fish in the general sense of the terms
such Interpretation would be contrary
to the legislative intent; for it would
practically defeat all catching of game
fish. Such a construction would lead
to absurdty: and it is not to be pro
sumed that the Legislature intended
their own qualification. Hence it is
held that, when the language Of an ac'
is susceptible of two senses, the sense
will be adopted which will not lead tC
absurd consequences: Amer. g. Eng
Ency. of Law, vol %, page 362: End
Itch on Interp. of Statutes sec. 925.
At the argument, it seemd to be con
ceded by the Commonwealth, that the
appliances we have named could b,
used. in connection with the rod, HOOK
and line in catching game fish with
out violating the statute. But thu
stress of the contention was made tC
rest upon the use Of the landing net hN
the defendant. i'm getting physical nos
session OF the trout after it was hooked
or. as the Commonwealth put it. IL
catching the fish by using a LANDING
net, in connection with rod, hook ant
line. Much argument was expended or
the question Was the fish caught wher
hooked, or was ii not caught until i
was put into the physical possession o
the defendant by means of landing
net?
TESTIMONY OF EXPERTS.
At first blush. this seems a question
worthy of the best days of the Schoo
men. Happily We are relieved from thC
niceties of words and abstract ideas b.
the testimony of experts in fishing
These were judges and LAWYERS an
doctors and fish commissioners, an
public officials, and men of large an'
small affairs. who had had long Drac
tical experience. The prepOnderatins
weight of their evidence is, that a gam
fish is caught when hooked, and tina
the landing net is used. either convent
emily or necessarily, for bringing tn
fish into the physical possession of thu
fisherman. Accordingly, we find tn
fact to be as thus testified to.
The argument is largely cOncernet
xx~it 1nGt, nf l,n nri
"catch." In constituting it, we are t.
take the ordinary and popular mean
ing; Amer. & Eng Enc of Law. vol
%, page 326: Endlich on Interp o
Statutes, sec rs. But here we are no
without perplexity. There are fey
words in the English language whc
have such a variety of meaning as tn
Dictionary gives fifteen shades o
meaning, one of which is, Ito take cap
tive, as in a snare or net or on a hoo
as to catch bird or fish"
The Century Dictionary gives twenty
two meanings of the word one of whc
is Ito take captive, as in a snare o
trap; to take with lure or bait, as I
catch fish" The Standard Diction
airy furnishes thirteen meanings on
of which is "to take by trapping, o
snaring; to take with bait or b.
strategem, as to catch fish, game" etc
So if we appeal TO popular usage. a
reflected In leXicons we are left in un
certainty as to what the exact mean
ing Of the word "catch" is in the act
A bear, or a skunk. or a rat, capturet
alive In trap, under these definitions
may be said to be caught i'm the Ordin
airy and popular meaning, although no
In the physical possession of the trap
per. So, a trout may be said to h
caught when held by the hook, as vel
as when in the landing net or creel
PENAL IN CHARACTER.
In constituting this act, we must no
forget that it is penal in its character
and therefore subject to general rule o
strict construction; that "where an aC
contains such an ambiguity as to leav
reasonable doubt Of it's meaning, II
the duty of the court not to infilct tn
penalty; that where it admits of tw
constructions, that which operates 4
favor OF life or liberty Is to be pre
ferred;" Endlich on Interp. OF Statutes
sec. $780, This rule would compel us I
construe the doubtful phraseology {
the act against the infllction of tn
penalty, and in favor of the liberty q
the citizen, AS we have already showr
that to catch a trout may mean eithe
when 1t is hooked. or when it is lande
with landing net, ii follows tina
under the rule applicable to penal stat
utes, We must adopt the constructio
most favorable to the defendant
But. according to our view, it is nc
necessary TO employ this rule of con
struction in the decision of this cas-,
The phrase rod, hook and line" is
very old one. In A Treatyse of Fysh
ynge Wyth an Angle by Dame Julia
A. Berners. edition 1896, we read as fo
lows: The beste to my symple dS