
    State vs. Swanzey Gross, and another.
    Hancock.
    Opinion February 9, 1897.
    
      Fish and Game. Glams. Tow'ns. F. 8-, o. 40, § 25; 8tat. 1885, o. 257.
    
    When a town has never fixed, at any town meeting, the times in which clams may he taken within its limits, nor the prices for which its municipal officers may grant permits therefor, held; that residents of the town may take clams without written permit free from all restrictions as to their use.
    Agreed Statement.
    This was a complaint for taking clams April 16, 1895, in the town of Brooklin, Hancock County, heard before the Western Hancock Municipal' Court, where the defendants were convicted and appealed to this court sitting at nisi prius,' below. The presiding justice reported the case to the law court upon an agreed statement as follows' '
    It was agreed that the complainant and both respondents were residents of the town of Brooklin and that the land, to which the flats described in said complaint were adjacent, together with the flats, also, are situated in the town of Brooklin.
    It was agreed that the respondents did take the clams described in said complaint from said flats and at the time in said complaint alleged.
    It was also agreed that the respondents were fishermen, but that the clams so taken were not for purposes of bait, nor for the use or consumption of said respondents, or their families.
    It was further agreed that the town of Brooklin had fixed no time in which clams might be taken within its limits and had made no regulations of any kind in relation to the taking of clams or other shell-fish.
    Upon the foregoing statement of facts, together with a copy of the the complaint, warrant and record, the case was submitted to the law court. If the complaint was sufficient in law and the law court found the respondents guilty thereunder upon the foregoing statement of facts, the sentence of the lower court was to be affirmed with costs; otherwise the respondents were to be discharged ; or the law court to make such other entry or order as might seem to it proper.
    
      JE. S. Qlarlc, County Attorney, for State.
    
      H. JE. Hamlin, for defendants.
   Per Curiam.

The respondents, residents of Brooklin, took a quantity of clams from flats in Brooklin, not for bait nor for consumption in their own families, but without any written permit from the municipal officers of the town. The town had never at any town meeting fixed the times in which clams might be taken within its limits, nor the prices for which its municipal officers should grant permits therefor.

By the first clause of section 25, c. 40. R. S., as amended by Statute of 1885, c. 257, it is expressly provided that, unless the town so regulates the matter by vote, residents of the town may take clams without written permit. The respondents, therefore, cannot be held for taking the clams they did without such permit.

Respondents discharged.  