Richmond planet. [volume] (Richmond, Va.) 1883-1938, 1915-03-27
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hEP LII bhlE.f
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In it's declaration that any net, etc.,
maintained in violation Of any law
tor the protection Of fisheries, Ia to
be treated as public nuisance, and
may be- abated and summarily de-
stroyed by any person, and it shall
be the duty OF each and every pro-
tector aforesaid and every game con-
stable to seize, remove, and forth
with destruy the same The legisla
ture. however, undoubtedly possess
ed the power not only to prohibit
fishing by nets In these waters, but
to make It. "a criminal offense, and to
take such measures as were reason
able aud necessary to prevent such
offenses In the future. 1t certainly
could not do this more effectually
than by destroying the means Of the
offense. II the nets were being used
IN a manner detrimental to the In
terests Of the public, we think it was
within the power of the legislature
to declare them to be nuisances, and
to authorize the officers of the State
to abate them.
-
Examples Of this are vessels ille-
gally registered or owned, or en-
ployed in smuggling or ether illegal
traffic; distilleries or breweries tile
gally carried on or operated. and
buildings standing upon or near the
boundary line between the United
States and another country, and
used as depots for smuggling goods,
III all these cases, however, the for
fixture was decreed by judicial pro-
ceeding. But where the property is
Of little value, and its use for the
illegal purpose Is clear the legisla-
ture may declare 1t to be q nuisance,
and subject to summary abatement
Instances of this are the, power to
kill diseased cattle; to pull down
houses In the path or conflagrations;
the destruction OF decayed fruit Or
fish or unwholesome meats, or in
fected clothing, obscene books or pic
lures, or instruments which can on
" he used for illegal purposes. While
the legislature has no rig. arbitrar-
lily to declare that to be nuisance
which is clearly not so, q good deal
must be left to its discretion in that
regard, and If the object to be ac-
lie interests, it may exercise a large
ployed,"
eff the property were OF great
value, as, for instance, if 1t were a
vessel employed Tor smuggling or
other illegal PURPOSES, It would BIO
as s ssp SM,,'s
nuisance. and the owner would have
good reason to complain, OF such act,
as depriving him Of his property
without due process OF law. But
where the property is OF trifling val
ne, and Its destruction Is necessary
to effect the object OF a certain stat
ute, we think 1t Is within the power
OF the legislature to, order Its sum-
mary abatement" ... I
''The value OF tie nets In question
was but SIS apiece. The cost Of con-
demntng one, (and the use Of one Is
as Illegal as the use of a dosen) by
judicial proceedings, would largely
exceed the value Of the net, and
doubtless the State would, In many
cases, be deferred from executing
the law by tho expense. They could
only be removed from the water with
difficulty. and we're liable to injury
In the process Of removal. The object
of the law Is undoubtedly a bene--
hcent one. and the State ought not
to be hampered in its enforcement by
the application OF constitutional pro-
visions which are intended for the
protection Of Substantial rights Of
property. 1t Is evident that the efl-
cacy Of this statute would be very
seriously impaired by requiring ev-
cry net illegally used to be carefully
taken from the water, carried before
court or magistrate, notice Of the
seizure to- be given by publication,
and regular judicial proceedings to
be instituted for its condemnation.
= $3.50
''It is said, however, that the nets
are not in themselves nuisance, but
are perfectly lawful acts Of manu-
facture,s and are ordinarily used for
a lawful purpose. This, however,
bv no means conclusive answer.
Many articles. such, for instance, as
cards, dice. and other articles used
for gambling purposes, are perfectly
harmless in themselves. but may be-
come nuisances by being put to an
illegal use, and In such cases fall
Within the ban OF the law and may
be- summarily. destroyed. It is true
that this rule does not always fol-
low from the illegal use OF harm
less article. A house may not be torn
down because 1t ~ put to an illegal
use, since 1t may be as readily used
for q lawful purpose (Ely v. Super
visors. SO N. Y. zv7), but where mi
nor articles Of personal property are
devoted to such use the fact that they
may be used for lawful purpose
would not deprive the legislature of
the power to destroy them. The pow
or Of the legislature to declare that
which Is perfectly innocent in itself
to be unlawful Is beyond question
people ". West, 106 N. X 293),
and in such case the legislature
may annex to the prohibited act all
the incidents Of criminal offense,
{vNny I{S,rs ~ Il or&~n.