
    The People, App’lts, v. Reuben Tanner, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. Game law—Suckees—Laws 1879, chap. 534.
    The provisions of chap. 534, Laws 1879, as amended by chap. 127, Laws 1884, permitting the taking of suckers in a certain manner in specified localities, do not render nugatory their general exception from the prohibitory section of the act. They were intended to limit and restrict the exception of suckers,in the places specially referred to, from the operation of the general license to catch such fish.
    2. Same—Evidence.
    Evidence of one witness who lived on the creek near a river inhabited by bass, that he had caught bass in the creek on one occasion, is not sufficient to overcome the evidence of several witnesses who had fished in the creek for several years, that they had never caught or seen. any bass in the creek.
    . Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of defendant Martin Heermance, for app’lts; Joseph Morschauser for resp’t
    
      
       Affirming 38 N. Y. State Rep., 349.
    
   Ruger, Ch. J.

This appeal calls for a construction by the court of the meaning of § 23 of chapter 534 of the Laws of 1879, as amended by chapter 127 of the Laws of 1884, relating to the subject of fishing in the fresh waters of the state with nets and other devices. The action is brought for the recovery of two penalties for a violation of the provisions of §§ 23 and 24, respectively, of the act referred to. The prohibitory portion of § 23, claimed to have been violated, reads as follows : “ No person shall kill or catch, or attempt to kill or catch any fish, except minnows, bullheads, eels, suckers, and catfish, in any of the fresh waters of this state, or in the American waters of the St. Lawrence river, in any way or manner, or by any device whatever, except that of angling with a hook and line, save only in the following waters, the Hudson river below the dam at Troy ” (and some other places, not including Wappinger creek). “Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of twenty-five dollars for each and every such offense.”

It is claimed by the appellant that the defendant made himself liable to a penalty by catching suckers with a net in Wappinger’s creek, Dutchess county, although such fish are expressly excepted from the prohibitory clause of such section. The appellant claims that the court should strike out the word “ suckers ” from the exceptions to the prohibitory clause and read it as though the taking of “ suckers ” with a net was prohibited in all the fresh waters of the state, save those therein especially excepted.

We know of no rule of construction which authorizes a court to reverse the plain meaning of a penal statute and read it so as to condemn that as a criminal act which it expressly declares to be lawful The theory upon which the appellant’s claim is based-is, that in no other way can effect be given to certain exceptions in the section, and, inasmuch as the settled rules of interpretation require that some meaning should be ascribed to all of the language of a statute, that it can be accomplished in no other way except by striking out the word “ suckers ” from the list of fish-excepted. The expressions referred to are contained in the numerous and complicated exceptions to the operation of the prohibitory clause and read as follows: “And also except in the waters of the Walkill river, in the county of Ulster, wherein it shall be lawful for any person or persons of one and the same family or household to possess and fish for suckers and eels in the waters of said river during the months of March and April and October and November, with a single fyke, the meshes of which shall not be less than one inch. * * * Provided, further, that in Black Lake, Mud Lake and Yellow Lake, in St. Lawrence county, bullheads, eels, suckers, catfish and pickerel may be killed with a spear, except in the months of March, April and May.”

' The rule of construction contended for would lead to a manifest absurdity, as it would radically reconstruct the prohibitory clause and leave it inoperative, except as to minnows alone. The-plain meaning of the material part of the section is attempted to be reversed through a reference to certain clauses clearly intended for another purpose. It seems quite plain that the clauses referred to were inserted for the purpose of limiting and restricting the exception of suckers, in the places specially referred to, from the operation of the general license to catch such fish. They have a natural meaning and effect by applying them to the waters mentioned, for the purpose of authorizing a restricted privilege,, only, to fish in such places for the classes of fish therein mentioned. In the absence of these clauses the exceptions to the prohibitory clause would give unrestricted license for fishing in these waters; but the limitations contained in the quoted clauses make that a limited privilege which without it was unrestricted.

The language used, thus having a natural and legitimate office to perform, does not justify the application of a rule of construction which would create a criminal offense when none was expressed and probably none was intended.

A second count in the complaint demands a penalty against the defendant for violating § 23 of the act of 1879, in having a fish net in his possession on the shores of waters inhabited, among other kinds of fish, by black or Oswego bass.

The trial court submitted the question to the jury to determine whether Wappinger’s creek was inhabited by the fish mentioned, and they found that it was not.

It is claimed by the appellant that this finding was not supported by the evidence.

The only material evidence in the case showing that Wappinger’s creek was inhabited by black bass was that of a single individual, who lived near the mouth of the creek, and who testified that he had caught black bass in the creek above the dam. It -is inferable from this evidence that the witness lived on the creek near the Hudson river, into which it empties, and which is inhabited by bass, and that he caught such fish near that river on a single occasion. This sporadic instance is far from proving that the creek was inhabited by such fish. There was opposed to this evidence the testimony of a number of witnesses who had frequently fished in Wappinger’s creek for a long series of years, and who had never caught any bass in the creek or seen any that were caught therein. The weight of evidence on this question was, we think, with the defendant, and the jury were authorized in so finding.

The judgment should, therefore, be affirmed, with costs.

All concur, except Finch, J., absent.  