Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1907-12-21
Knox County Receipt.
5 Clarence Peabody.

State Us Clarence Peabody.
Rescript. Wtitnhouse, j.
This is 4 complaint against the re-
| SpOndenl, 4 resident of the town Of
Friendship. tor digging clans within
/ the limits of the town of Gushing with
out first obtaining 4 written permit
therefor from the municipal officers Of
| that town, according to the requirement
| OF the regulations established hy the
| town Ut its annual meeting held in
| March 1905.
But it is the opinion of the court that
the vote OF the town OF Gushing in
| 1906 mot to issue licenses to non resi-
dents" was not authorized by the
statute of 1905 upon which It purp"rts
| to have been based.
it is true that bylaw or regulation
adopted by a town, as we'll as
statute enacted by the Legislature may
be valid in part and void in part. If
when the invalid portion is stricken
out that which remains is complete in
itself and capable of being executed
in accordance with the apparent legiS-
lative intent, wholly independent OF
that which was rejected, il must be
sustained. But this cannot be done
when il would violate the legislative
intent.
IT is 4 well settled principle of the
common law that the fish in the waters
of the State including the sea within
its limits as we'll as the game in its
forests belong to the people of the
State in their collective sovereign ca
pacity. Equally familiar and well
recognized is tlIc corollary OF TINS
proposition that the legislature of each
state representing the people possesses
full power to regulate and control such
fisheries by appropriate enactments de-
signed 10 secure the benefits Of this
public right in property TO all its in
habitdnts. This doctrine has ire
quently been affirmed by the legiSla-
lures and repeatedly declared by the
judicial decisions of this and other
states. l; has also been approved by
the supreme court OF the United
States.
Ii has also been expressly held IN
this state that shell fisheries including
the digging of CLAIMS. are embraced in
the common right of the people TO
FISH, in the sea. and that the State as
representing the people has authority
to regulate the common rights and
privileges Of fishing.
Iii the case at bar il is not III con-
troy Arsy that the statute Of 1905 au-
tno.'iZed the vote of the town to issue
$50 licenses" and to fix the price for
licenses At % cents. But il is mani
fest that this regulation was not
adopted for the purpose of obtaining
the .cvenue to be derived from such
small license fees. One of the leading
purposes of it undoubtedly was to
prohibit non residents from taking
clans in that town by depriving them
OF the privilege of applying for Ii
cense and thus subjocting them to the
statutory penalty of digging CLAIMS
without a permit from the selectmen OF
tie Town. Eut the regulation is in
valid as to non residents. They may
take CLAIMS in the town of Cushing
without 4 rermi: from the selectmen
and without mourning any statutory
penalty. The enforcement of the
regulation against the inhabitants OF
the towG, under such circumstances,
would undoubtedly defeat the pur-
pose of the voters in adopting it. 1t
would work practical discrimination
against the inhabitants of the town
and in favor of non residents. The
prohibition against non residents was
an essential element in the scheme
and when that is stricken out the re-
naindcr cannot be executed 50 as to
efectuate the intention of the voters Of
Cushing. The regulation being au-
thorized and void. there is no legal
support for this prosecution, and the
entry must be,
Judgment for the defendant.