The Republican journal., 1907-12-26
DECISION IN A CLAM CASE.

| The following decision from the Law
| Court on a clam case will be of interest
along shore:
| State VS.. Clarence Peabody
Rescript, Whitehouse, j.
This is complaint against the respond
ent, resident of the town of Friendship,
for digging CLANS within the limits OF the
town of Gushing without first obtaining a
written permit therefor from the municipal
officers of that town, according to the require
| ment OF the reg ulationS established by the
town at It's annual meeting held in March
1906.
But it is the opinion of the court that the
vote of the town of Gushing in 1906 mot to
issue licenses to non residents twas not
| authorized by the statute of 1905 upon
which it purportS to have been based.
1t is true that d bylaw or regulation adopt
ed by town, as we'll as a 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 COM
plete in itself and capable of being executed
in accordance with the apparent legislative
intent, wholly Independent of that which
was rejected, it must be sustained. But
this cannot be done when it would violate
the legislative intent
1t is a well settled principle of the COM
mon law that the fish in the waters of the
State, including the sea within its limits as
| well as the game in its forests, belong to the
people of the State in their collective SOW
ereign capacity. Equally familiar and well
recognized is the corollary of this PROPOSE
| ton, that the.legislature of each State rep
| resenting the people possesses full power to
regulate and control such fisheries by ap-
propriate enaotments designed to secure the
benefits of this public right in property to
all its inhabitants. This doctrine has fire.
quently been affirmed by the legislatures
and repeatedly declared by the judicial de-
cisionS of this and other States. 1t has also
hflnv ft,n th.A
United States.
1t has also been expressly held to this
State that shell fisheries including the dig
ging Of CLANS, 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
in the case at bar it is not in controversy
that the statute of 1905 authorized the vote
of the town to tissue $50 licenses and to fix
the "price for licenses at % cents" But it
is manifest that this regulation was not
adopted for the purpose of obtaining the
revenue to be derived from such small
license fees. One of the leading purposes
of it undoubtedly was to prohibit nOn-reSl-
dents from taking CLANS in that town by
depriving them of the. privilege of applying
for license and thus subjecting them to
the statutory penalty of digging clans
without a permit from the selectmen of the
town. But the regulation is invalid as to
non residents. They may take clans in the
town of Gushing without permit from the
selectmen and without incurring any statu-
tory penalty. The enforcement of the regu-
lation against the inhabitants of the town,
under such circumstances, would undOubt-
ediy defeat the purpose 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 remainder
cannot be executed so as to effectuate the
intention of the voters of Gushing. The
regulation being authorized and void, there
is no legal support for this prosecution,
and the entry must be,
Judgment for the defendant.