
    Edson et al. v. Crangle et al.
    
      Catching fish with prohibited devices — Section 6968 Rev. Stat.— In conflict with Section 16, Article 1, of Ohio constitution — Constitutional law.
    
    1. The boundary line between the United States and Canada through Lake Erie is the northern boundary of this state, and its jurisdiction extends to that line.
    
      2. Section 6968, Revised Statutes, as amended February 17, 1892, 89 O. L., 26, is in conflict with section 16, article 1 of the constitution of this state, and is therefore void, for the reason that it confiscates property without due course of law.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The defendants in error had a large number of fish nets situated in Lake Erie, some ten miles out in the lake, northeast of Cleveland, and L. K. Burton, chief game and fish warden, hired E. R. Edson, owner of the tug “Harrow,” and proceeded with the tug and a force of men July 21, 1895, to where the nets were located, and seized and carried away the nets, under the claim that they were used at the time in violation of section 6968, Revised Statutes. What finally became of the nets does not appear, but there is no showing that they were sold as the statute provides. Thereupon the defendants in error brought an action in replevin against the game and fish warden and the owner of the tug for the recovery of the nets or their value, and they recovered judgment in the court of common pleas for the value of the nets, $464.00.
    The circuit court affirmed the judgment, both courts holding that said section 6968 is uncqnstitutionaL Thereupon the plaintiffs in error filed their petition in this court, seeking to reverse the judgments of the courts below.
    
      F, 8. Monnett, Attorney General, and George G. Blankner, Assistant Attorney General, for plaintiffs.
    It may not be improper for us, before entering upon a dicussion of the merits of the case at bar, to call the court’s attention to some decisions that have been rendered relative to the right of the legislature to enact laws regulating fishing. 5 Mass., 266; Gould on Waters, Sec. 189; 85 Mich., 105; People v. Brooks, 101 Mich.; Sloan, v. Biemiller, 81 Ohio St., 511.
    While the constitutionality of the law creating the Ohio Fish and Game Commission has never been before your honorable body for consideration and decision, yet similar laws have been attacked and successfully defended in the supreme court of other states and of the United States. Osborn v. Charlevoix (Michigan), Detroit Legal News, p. 731, issue of November 20, 1897; Bittenhaus v. Johnson et al., 92 Wis., 588; 12 N. J. L., 311; Lawton v. Steele, 19 N. Y., 226; 152 U. S. R., 133.
    At the outset we stated that the validity of the fish and game laws had never been decided in this state. We find, however, upon a more minute examination of the authorities, a case styled Roth v. The State, 7 C. C., 62; 3 Circ. Dec., 663. This case was taken to the Supreme Court of Ohio and there decided constitutional. 51 Ohio St., 209; San Mates v. Railway, 8 Am. & Eng. Railroad cases, p. 27; Mugler v. Kansas, 123 U. S., 623; 47 Barb., 65.
    
      J. M. Sheets, Attorney General, and S. W. Bennett, of counsel for relator.
    We present here the propositions:
    First: Can the legislature, by an act, declare anything used for an unlawful purpose to be a public nuisance?
    
      Second: Having so declared a net, means or device used in unlawfully taking fish a public nuisance, can it be summarily abated, and the net or other means destroyed without trial or other process of law?
    The first proposition above has been sustained in a large class of cases from diverse standpoints. Various considerations have been urged by high judicial authorities as reasons for the exercise of this power, each and all of such authorities claiming that the power is a valid exercise of the police power inherent in each civilized community, and can be exercised over various classes of subjects as follows: (a) Such as are lawful subjects of property unlawfully used; (5) Such as are not subjects of property; (c) Such as are lawful subjects of property, but declared nuisances upon grounds of public necessity. Blair v. Forehand, 100 Mass., 136; State v. Topeka, 36 Kansas, 76; Morey v. Brown, 42 N. H., 373; Washington v. Meigs, 1 McArthur, 53; Exparte Cooper, 30 Am. Rep., 152; Cooley’s Constitutional Lim., top paging, 740, 741; Miller v. Craig, 11 N. J. Eq., 175; Weeks v. Milwaukee, 10 Wis., 242; Watertown v. Mayo, 109 Mass., 315; McCullough v. Maryland, 4 Wheat., U. S., 316; Lawton v. Steel, 119 N. Y., 226; Mugler v: Kansas, 123 U. S., 661; Fisher v. McGirr, 1 Grey (Mass.) 1; Wyanhamer v. People, 13 N. Y., 378; Coe v. Schultz, 47 Barb., 65; Matter of Jacobs, 98 N. Y., 108; McLaughlin v. State, 45 Ind., 338; Monroe v. Grespach, 33 La. Ann., 1011; State v. Fowler, 13 R. I., 661; Miller v. New York, 109 U. S., 385; Babcock v. Buffalo, 56 N. Y., 268; Hart v. Albany, 3 Paige, 213; Kellogg v. Thompson, 66 N. Y., 88.
    The true rule, as we conceive it to be, is that any use of property not injurious to the health, welfare and morals of the community, or which does not obstruct or interefere with public interests or a public right, cannot be declared to be a nuisance, and under the authorities above cited we are certain that no exception can be taken to the proposition as stated, that tbe legislature has the power or right to declare by proper enactment what may be conceded a public nuisance.
    It was in the 'exercise of such power that the legislature of Ohio declared the unlawful use of nets or other means or device for taking or capturing fish to be a public nuisance and authorized a summary abatement. This power has been exercised with regard to various subjects in Ohio, to be found within the following sections of the statute: 6923», 6922, 6924, 6927, 6946, 6921, 6858», 7025, and many other sections of the statute, and we deem that there is no longer any question of the power of the legislature to so declare.
    Second: The power of the legislature to declare what constitutes a public nuisance is beyond question, but having so declared, can such public nuisance be summarily abated, and the net constituting the nuisance “be seized or removed and forthwith destroyed?”
    We wish here to call the attention of the court to the unreported decisions of Judge Wildman and Judge Hall upon this question.
    In both of those cases the portion of the act in question was held to be unconstitutional. The one before Judge Wildman was the case of John T. French v. Frank B. Shirley, No. 4910 in the common pleas court of Ottawa county. The other the case of John Yensen, v. The State of Ohio, court of common pleas of Ottawa county.
    These opinions in so far as they pertain to the question here at issue, show that the different judges who have passed upon this question have not used the same process of reasoning, but have arrived at the same result, viz: In holding that that part of Sec. 6968-2 is unconstitutional. We rely mainly upon the case of Lawton v. Steele, 152 U. S. Rep., 133, and it lias all along been the purpose of both counsel and the nisi prius judges before whom these cases have been heard, to refuse to adopt the reasoning in that case, and to hold the same as not being obligatory upon them. The statute in question herein is much more perfectly worded than was the statute of New York, which was considered in the case of Lawton v. Steele, supra. In the case at bar all of the sections of the statute must be read together as an entirety, and it will be observed that certain waters are prohibited and certain methods of fishing are prohibited.
    Now it is a conceded fact, as we understand it, that the nets and devices of the defendants in error were seized under the direction of the fish and game commission, while they were in such unlawful use as was prohibited by section 6968-1-2, etc. This being true, and the statute being a public statute and advising the defendants in error that the waters in. which they had placed their nets were prohibited waters, and further that the nets so placed were prohibited nets or devices, and they having in the face of the statute, and the notice thus given them by law, volunarily put the nets to an unlawful use, which made them public nuisances under the statute, are they now in any position to assert that the act which so notifies them, and which by its violation, deprives them of their property is not due process of law, as guaranted by the constitution of Ohio and of the United States. Kidd v. Pierson, 128 U. S., 1.
    
      John L. Lott, of counsel, for the commissioners of fish and game.
    1. By the decision of the commissioners on July 18, 1822, appointed in pursuance of article 6, of the Treaty of Ghent, the boundary line between the United States and Canada, so far as it relates to Lake Erie, was fixed along the middle of the lake (8 Stats, at Large, 274, 276).
    
      The act of June 15, 1836, to establish the northern boundary line of the state of Ohio (5 Stats, at Large, 49), declared that the line between the United States and Canada through Lake Erie should be the northern line of the State of Ohio.
    2. That this court will take judicial notice of the location, size and contour of Lake Erie, is a proposition which will hardly be seriously disputed. Coffee v. Groover, 123 U. S., 11; Jones v. U. S., 137 U. S., 202; Brown v. Piper, 91 U. S., 42; Nicol v. Ames, 173 U. S., 517; U. S. v. Irrigation Co., 174 U. S., 697; People v. Lumber Co., 116 Cal., 397; Jamison v. Gas Co., 128 Ind., 574; People v. Brooks, 101 Mich., 98; Jacobs v. New York, 98 N. Y., 113; State v. Moore, 104 N. C., 714; Greenleaf on Evidence, Secs. 4, 5 and 6.
    3. It is the settled law of this country that the states hold the title to, and dominion over, the lands under the navigable waters of the Great Lakes, within their limits.
    The jurisdiction which the states bordering on the Great Lakes possess over the waters within their limits, is a question, the final determination of which, •rests in the federal courts. That jurisdiction is no longer in doubt. Railway Co. v. Illinois, 146 U. S., 387; Shively v. Bowlby, 152 U. S., 1; Revell v. People, 177 Ill., 468; Sloan v. Biemiller, 34 Ohio St., 492; Bodi v. Shooting Club, 57 Ohio St., 226; Gould on Waters, Sec. 82a.
    
    4. In the exercise of its police power, the state has the undoubted right to regulate the taking of fish; and this right is as complete and unlimited as that of the federal government in matters affecting the general welfare. Gibbon v. Ogden, 9 Wheat., 1.
    («). The state has the undoubted right to regulate the taking of fish, and this right is as complete and unlimited as that of the federal government in matters affecting the general welfare. Smith v. Maryland, 18 Howard, 71; McCready v. Virginia, 94 U. S., 391; Holyoke Company v. Lyman, 15 Wall., 500; Manchester v. Massachusetts, 139 U. S., 240; Hardin v. Jordan, 140 U. S., 371.
    The latest and most far reaching decision of the federal courts upon the right of the state to regulate the taking of fish, is the case of Lawton v. Steele, 152 U. S., 133.
    This power of the state is also sustained by the decisions in State v. Shannon, 36 Ohio St., 423; Roth v. State, 51 Ohio St., 209; State v. Harrub, 95 Ala., 176; People v. Truckee Lumber Co., 116 Cal., 397; Bristol v. Ousatonic Water Co., 42 Conn., 403; Blydenburgh v. Miles, 39 Conn., 484; Town of Clinton v. Bacon, 56 Conn., 508; White v. Petty, 57 Conn., 576; State v. Geer, 61 Conn., 144; Wagner v. People, 97 Ill., 320; American Express Co. v. People, 133 Ill., 649; People v. Bridges, 142 Ill., 30; Parker v. Illinois, 111 Ill., 581; Gentile v. State, 29 Ind., 409; Stuttsman v. State, 57 Ind., 119; State v. Lewis, 134 Ind., 250; Moulton v. Libbey, 37 Me., 472; State v. Beal, 75 Me., 289; Maine v. Craig, 80 Me., 86; Durham v. Lamphere, 3 Gray 268; Commonwealth v. Chapin, 5 Pick., 199; Commonwealth v. Essex Company, 13 Gray, 239; Commissioners v. Holyoke Water Power Co., 104 Mass., 446; Com. v. Perley, 130 Mass., 469; Com. v. Manchester, 152 Mass., 230; and Com. v. Gilbert, 160 Mass., 157; People v. Kirsch, 67 Mich., 539; People v. Collison, 85 Mich, 105; People v. Brooks, 101 Mich., 98; Minnesota v. Mrozinski et al., 59 Minn., 465; Blount, 85 Mo., 543; State v. Randolph, 1 Mo. App., 15; State v. Roberts, 59 N. H., 256; Beach v. Morgan, 67 N. H., 529; Doughty v. Conover, 42 N. J. L., 193; State v. Snover, 42 N. J. L., 341; Phelps v. Racey, 60 N. Y., 10; In re Jacobs, 98 N. Y., 98; State v. Norton, 45 Vt., 258; Drew v. Hilliker, 56 Vt., 641; State v. Theriault, 70 Vt., 617; McLennan v. Prentice, 85 Wis., 427; State v. DeLano, 80 Wis., 259; Bittenhaus v. Johnson, 92 Wis., 588; 
      Boggs v. Commonwealth, 76 Va., 989; Willow River Club v. Wade, 100 Wis., 86.
    (5) Possessing the power to regulate the taking of fish, the state may adopt such regulations, and provide such penalties, as it deems proper and needful.
    It is a settled principle of law that where a subject is within the police power of a state, the question as to what regulations are proper and needful, is one for legislative decision. That discretion can not be controlled by judicial decision, save where exercised in direct conflict with a constitutional provision. McCullough v. Maryland, 4 Wheat., 421; Legal Tender Case, 110 U. S., 441; Nicol v. Ames, 173 U. S., 524; A. & Eng. Ency. of Law, Vol. 18, pp. 746, 747; State v. Aiken, 42 Ohio St., 222; Jamison v. Cas Co., 128 Ind., 555; Terre Haute v. Kolsem, 130 Ind., 434; State v. Lewis, 134 Ind., 250; Thorpe v. R. R. Co., 27 Vt., 140; Bancroft v. Cambridge, 126 Mass., 438.
    (c) In the exercise of its discretion, the state may declare to be a public nuisance all nets and devices used for the illegal taking of fish, and authorize their confiscation and summary destruction. Barbier v. Connolly, 113 U. S., 31; Mugler v. Kansas, 123 U. S., 663; Powell v. Penna, 127 U. S., 683; In re Kemmler, 136 U. S., 449; In re Converse, 137 U. S., 632; Holden v. Hardy, 169 U. S., 385; San Diego Land Co. v. National City, 174 U. S., 739; Smith v. Maryland, 18 How., 71; Mugler v. Kansas, 123 U. S., 623; McCready v. Virginia, 94 U. S., 391; Patterson v. Ky., 97 U. S., 501; Kidd v. Pearson, 128 U. S., 26; Normand v. Steam Tug Harrow (No. 2,122, in Admiralty), U. S. Dist. Court of Ohio; Bittenhaus v. Johnson, 92 Wis., 588; Willow River Club v. Wade, 100 Wis., 86; Osborn v. Charlevoix, 114 Mich., 655; State v. Snover, 42 New Jersey Law, 341.
    The state may summarily destroy property used in a lawful manner, and when the owner is in no manner, at fault, when the public necessities require (Cooley’s Const. Lim., 6th Ed., p. 739; Lawton v. Steele, 152 U. S., 136); and so the state may with greater freedom destroy property unlawfully used, when the necessities require (Cooley’s Const. Lim., p. 745); and the courts will not declare such a law invalid until it is shown that it was not passed for the actual good of the public, but that, under that guise, it was enacted for another purpose, and that such a law was unnecessary and oppressive (Cooley’s Const. Lim., p. 247); Tiedman’s Lim. of Police Power, pp. 440, 441.
    It certainly is unnecessary to refer to the many decisions of this court sustaining laws passed in the exercise of the police power. It may be appropriate, however, to refer to sections 1920-1923, R. S., which require the summary destruction of gambling devices; and to section 4275, which makes the owner of the property liable for money lost in gambling, when he permits it within or upon his premises. Binder v. Finkbone, 25 Ohio St., 103; State v. Nelson, 52 Ohio St., 102.
    5. Sections 405 to 409, Revised Statutes, are valid enactments.
    In the exercise of its police power, the legislature, by sections 405 to 409, has provided for the appointment of commissioners of fish and game, who are given authority to appoint state, special and county wardens, whose duty it is to enforce the laws relating to fish and game.
    Will it be contended for a moment that the legislature, under the broad power conferred by section 27 of article 2, of the constitution, has not the power to create such additional offices as it deems necessary? In the early case of State v. Kennon, 7 Ohio, St., 546, that power seems not to have been disputed. State ex rel v. Covington, 29 Ohio St., 102.
    It certainly will be conceded that in enacting these sections, the legislature intended to create a board for the purpose of exercising general police powers. Their powers are limited to the protection, preservation and propagation of fish and game. They exercise no other powers. It is therefore solely the exercise of a police power. They possess jurisdiction over the entire state, they are chosen for a definite term, they give a bond, make reports to the governor, and their expenses are paid by legislative appropriation. They are, therefore] state officers. State v. Wilson 29 Ohio St., 347. By section 409 the chief warden is given jurisdiction of the entire state. State v. Ken-non, 7 Ohio St., 557; State v. Brennan, 49 Ohio St., 33; Ritchie v. People, 155 Ill., 98; State ex rel v. Hyde, 121 Ind., 20, 38; Moore v. Board of Auditors, 90 Mich., 269.
    
      White, Johnson, McCaslin & Gannon, for defendant in error.
    The record presents three questions, two of which only are argued by the learned attorney general:
    First — Is the statute constitutional under which the nets are claimed to have been seized?
    This question was decided in our favor by both the common pleas and circuit courts.
    Second — Had the state of Ohio jurisdiction of the locus in quo, the seizure occurred?
    This question was decided against us by both the inferior courts.
    Third — Assuming that the statute is constitutional, and that the state had jurisdiction of the locus in quo, did defendants so conduct themselves that they can defend under the statute, or did they so act as to make themselves tresspassers ah initio?
    The statutes under which plaintiffs in error attempted to defend is unconstitutional.
    We find, in the Bill of Rights of our constitution, certain fundamental provisions which seem to us clearly violated by the statute in question. Article l1, sections 5, 10, 14 and 19.
    
      Until very recently the proposition that a state of the Union might constitutionally provide for a seizure of private property by executive officers, and a confiscation thereof to the use of the state without notice and without previous or subsequent judicial inquiry, found no warrant in any American court or text-book writer, and was repeatedly denied by the supreme courts of many states, and by the most authoritative text-book writers. Colon v. Lisk, 153 N. Y., 188; Hibbard v. People, 4 Mich., 125.
    While a seizure and destruction of property may, in some cases, where necessity requires, be permitted, any statute permitting seizure, and confiscation of private property without notice, or judicial investigation, or order, is unconstitutional. Cotter v. Doty, 5 Ohio, 393; Archer v. Baertschi, 8 O. C. C., 12; State v. Owen, 3 N. P., 181; Bogg v. Com., 76 Va., 989; Lowry v. Rainwater, 70 Mo., 152; S. C. 35 Am. R., 420; People v. Copeley, 4 Criminal Law Magazine, 187, 191, 192; Clark v. Mitchell, 64 Mo., 564; Donovan v. Vicksburg, 29 Miss., 247; Portland v. Bangor, 65 Me., 120; Varden v. Mount, 78 Ky., 86;. S. C. 39 Am. R., 208; Fisher v. McGirr, 1 Gray, 1; Crown v. Perkins, 12 Gray, 89; Green v. James, 2 Curt. C. C., 187; People v. Moore, 62 Mich., 496; Parsons v. Russell, 11 Mich., 113; Ames v. Port Huron Co., 11 Mich., 139; Van Horne v. Dorrance, 2 Dall., 304; Craig v. Werthmueller, 78 Ia., 598; Ieek v. Anderson, 57 Cal., 251; S. C. 40 Am. R., 115; Darst v. People, 51 Ill., 286; S. C. Am. R. 2, 301; Detroit v. Roads Co., 43 Mich., 140; Dunn v. Burleigh, 62 Me., 24; King v. Hayes, 80 Me., 206; Gray v. Kimball, 42 Me., 299; State v. Robbins, 124 Ind., 308; S. C. 8 L. R. A., 438; Lanfear v. Mayor. 4 La., 97; Pomeroy Constitutional Law, 156; Cool'ey Constitutional Limitations, 6 Ed., 444, 445, 429, 430.
    Until now, no officer of a municipality or of the state has been found hardy enough to assert, in this court, a right to seize and convert to his own use, without judicial process, without judicial investigation, the property of a citizen. State v. Robbins, 124 Ind., 308; Clark v. Mitchell, 64 Mo., 564; Donovan v. Vicksburg, 29 Miss., 247; Poppen v. Homes, 44 Ill., 362; Heis v. Columbia, 6 Rich., 40; Gray v. Kimball, 42 Me., 299; Dunn v. Burleigh, 62 Me., 24; King v. Hayes, 80 Me., 206; Lanfear v. Mayor, 4 La., 97; Parsons v. Russell, 11 Mich.,. 113; Detroit v. Railway Co., 43 Mich., 140; Craig v. Wertheimer, 78 Ind., 598; Cooley Const. Lim., 6th Ed., 429, 445 and 719; Lawton v. Steele, 119 N. Y., 226.
    From the latter remarkable decision, three justices of the supreme court, Mr. Chief Justice Fuller, Justice Field and Justice Brewer dissent, and the dissent is put upon the precise grounds which we have argued. Lawton v. Steele, 152 U. S., 133.
    This decision of the supreme court, it may be further said, is absolutely inconsistent with earlier decisions rendered by former judges of that court. Green v. Famee, 2 Curt., C. C., 187; Van Horne’s Lessee v. Dorrance, 2 Dall., 304; People v. Gibson, 109 N. Y., 389; In re Jacobs, 98 N. Y., 98.
    These nets, being set more than a marine league from the shore of Lake Erie, and more than a marine league outside of any line connecting headland with headland, were on the high seas, and hence,
    First. The state had no criminal jurisdiction at that point, and therefore its officers could not seize the nets.
    Second, The statute could not regulate the fisheries at that point. The Eagle, 8 Walk, 15; Tennessee Chief Case, 12 Howard, 443; U. S. v. Bogers, 150 U. S., 249.
    While by the constitution, the treaties made by the United States are the supreme law of the land, we think it will be conceded that congress cannot, by treaty, exercise authority not conferred by the constitution. The United States cannot, by force of a treaty with Great Britain, change the nature of the federal government from one of special limited powers to one of general unrestricted powers. They can not, by treaty, amend the constitution, and.it seems to us, to say the least, extremely doubtful, if the state of Ohio has jurisdiction in Lake Erie, outside of a marine league, to regulate the fisheries, whether she can be deprived of this power by a treaty between the United States and Great Britain. Gould the United States, by such a treaty, take upon itself the regulation of fish or game in the regions within the limits of the state or upon the territory of the state, could it, by dint of treaty, regulate matters within the limits of the state of Ohio, a right to regulate which is not offered by the constitution?
    Can it by treaty take from the state of Ohio, the right to regulate fish and game within its borders, a branch of the police power, which police power is by the federal constitution reserved to the several states. Either then such a convention will be void or the Great Lakes are within the federal and not within the state jurisdiction.
    That the result of this decision in the United States v. Rogers is, so far as concerns those lakes through which the international boundary runs, to deprive the states of jurisdiction, seems to be recognized in Bigelow v. Nickerson, 70 Fed., 113; Lord v. Steamship Co., 102 U. S., 541.
    Have not plaintiffs in error forfeited any protection from the statute.
    By not following the law as to the disposition of the nets, by thus taking the nets the plaintiffs in error became tresspassers ab initio, and a recovery may be had against them by the owners of the nets, notwithstanding they were set in violation of law, and notwithstanding the nets might have been legally confiscated and lost to the owner had the law been pursued. Russell v. Hanscomb, 15 Gray, 166; Averill v. Chadwick, 153 Mass., 171; McCough v. Wellington, 6 Allen, 505.
    
      If officers deal with property taken by them in a manner different from what the law directs, they thereby become trespassers ab initio and can not protect themselves under the statute. Bracket v. Vining, 49 Me., 357; Bond v. Wilder, 16 Vt., 393; Pierce v. Benjamin, 14 Pick., 356; Backrider v. McDonald, 10 Johns., 253; Burton v. Calloway, 20 Ind., 469; Wilson v. Ellis, 28 Pa. St., 238; Barrett v. White, 14 Am. Dec. 368, note; 1 Hilliard Torts, 106; 2 Idem, 232; Everett v. Herrin, 48 Me., 537; Brackett v. Vining, 49 Me., 356; Smith v. Gates, 21 Pick., 55; Barrett v. Lightfoot, 1 T. B. Monroe, 241; Averill v. Chadwick, 53 Mass., 17; McGough v. Wellington, 6 Allen, 505.
   Burkett, J.

It is contended by counsel for defendants in error, that the place in the lake where the nets were located is not within the jurisdiction of this state, but is part of what is usually known as the high seas. The contention is not sound. The northern boundary of the state is the line between the United States and Canada, as fixed by treaty and established by act of congress. 5 U. S., Statutes at Large, 49; 8 U. S. Statutes at Large, 274-276.

The extension of admiralty jurisdiction to the Great Lakes by a judicial change of construction by the supreme court of the United States, did not have the legal effect to change the northern boundary of this state as theretofore fixed and established by congress. As to change of construction, see Waring v. Clarke, 5 Howard, 441; Propeller Genesee Chief v. Fitzhugh, 12 Howard, 443.

The nets in question are claimed to have been seized by authority of section 6968, Revised Statutes, as amended February 17, 1892, 89 O. L., 26. So much of that section as is applicable to Lake Erie is as follows :

“No person shall draw, set, place, locate or maintain any pound-net, seine, trap or fish net in Lake Erie, * * * from the fifteenth day of June to the tenth day of September, inclusive. No person shall set, place, locate or maintain, or catch fish with a gill-net in any of the waters of the state, except in Lake Erie. No person shall set, place, locate or maintain any fish-net on any of the reefs in Lake Erie. No person shall set, place, locate or maintain in Lake Erie any portable fish-net within one-half mile of any stationary fish-net or lead thereof. No person shall set, place, locate or maintain any net whatever within one-half mile of the mouth of any river or creek flowing into Lake Erie. * * * No person shall draw, set, place, locate or maintain any fish trap, pound-net, seine of any device, for catching fish as in this section forbidden; and any nets, seines, pound-nets or other devices for catching fish, set, placed, located or maintained in violation of the provisions of this section, shall be confiscated wherever found, and the same shall be sold to the highest bidder, at public outcry, at a place to be selected by the fish commissioners, and the proceeds derived from such sale shall be placed to the credit of the fish and game fund, and subject to the warrant of such commissioners. * * * Any person convicted of a violation of any of the provisions of this act shall be fined for the first offense not less than twenty-five dollars nor more than one hundred dollars, and in case of neglect or refusal to pay said fine, be imprisoned in the county jail not less than thirty days; and for the second or any subsequent violation of this act, shall be fined not less than fifty dollars nor more than five hundred dollars, and in default of payment of fine and costs shall be imprisoned in the county jail not less than sixty days; and all fines collected under this act shall go to the county fish and game fund in the county wherein the offense was committed, unless otherwise directed and ordered by the fish and game commissioners of this state. And it is hereby made the duty of the wardens and assistant wardens of this state to prosecute all violations of this act in connection with- the prosecuting attorneys of the counties wherein such offense shall have been committed, and such prosecuting attorney shall be entitled to the same fees as are now allowed by law for the collection of forfeited bonds. * * *”

This section was again amended and supplemented by the acts of April 27, 1896, 92 O. L., 332 and 384, but as the nets in question were seized in July, 1895, this case must be determined by the statute as it then stood.

It will be noticed that the act as it then stood does not declare nets used in violation of it a public nuisance, to be abated and destroyed wherever found, nor words to that effect. The provision of the act is as follows: “And any nets, seines, pound-nets or other devices for catching fish, set, placed, located or maintained in violation of the provisions of this section, shall be confiscated wherever found, and the same shall be sold to the highest bidder at public outcry at a place to be selected by the fish commissioners, and the proceeds derived from such sale shall be placed to the credit of the fish and game fund and subject to the warrant of such commissioners.”

While the act provides that the nets shall be confiscated wherever found, it fails to provide expressly who shall confiscate them, and fails to provide any legal proceedings for their confiscation. The prosecution provided for in the section is against those who violate the provisions of the act, and provides for their punishment by fine and imprisonment, but nothing is provided as to adjudging the confiscation of the nets. The intent of the general assembly seems to have been that the fish commissioner should seize and confiscate such nets wherever found, without any legal proceedings whatever; and that he should sell the same at public outcry at such place as he should select, and place the proceeds to the credit of the fish and game fund.

Confiscation implies a seizure, with or without legal process in the first instance, followed by a legal proceeding in a court of competent jurisdiction wherein the parties interested may be heard and have an opportunity to defend, and wherein the property is adjudged to be confiscated and ordered to be sold according to law.

While the seizure may be made in the first instance by an officer of the law doing no unnecessary damage, the confiscation must be made by the judgment of a court having jurisdiction of the subject matter.

This section gives the right of confiscation, but fails to provide a legal proceeding by which the confiscation may be adjudged, and there being no other statute providing a proceeding in such cases, it attempts to take and sell private property and place the proceeds in the public treasury without any process of law. The section is therefore in conflict with article 1, section 16, of our constitution, which provides as follows: “All courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law; and justice adminstered without denial or delay.”

To confiscate is to seize and appropriate to the use of the state. It is also defined as follows: “To appropriate private property as forfeited to the public use or treasury, especially because of the wrong-doing of the owner.” In this sense it is in the nature of a fine imposed upon an offender, which cannot be done without due process of law. It is, in legal effect, taking private property for the use of the public without compensation and without process of law.

The confiscation act of congress, passed July 17, 1862, 12 U. S. Statutes at Large, 589, provides for proper proceedings in a court of competent jurisdiction to adjudge and order the confiscation and sale of the property seized. So in confiscations for violations of the revenue laws, there is a provision for legal proceedings.

Proper legal proceedings are always necessary to adjudge a forfeiture or confiscation, and to permit officers or private persons to seize, sell or appropriate private property without legal proceedings, under a claim of confiscation, would be inconsistent with the principles of constitutional government, and would .soon lead to fraud, corruption, oppression and extortion.

Such statutes to be constitutional should not only provide the right of confiscation, but should also provide the remedy, and then such remedy would be exclusive. Commissioners v. Bank, 32 Ohio St., 194.

The act being unconstitutional, it can afford no protection to the fish commissioner and owner of the tug for seizing and taking away the nets. They were wrong-doers from the beginning, the same as if the act had never been passed, and they were liable to the owners of the nets for their value, and the judgment against them is right.

Judgment affirmed.  