The respondent stands indicted for a violation of section 23, of chapter 118, R. S. 1883, (R. S., c. 119, § 23) which provides that “ whoever verbally, or by written or printed communication, maliciously threatens to accuse another of a crime or offense, or to injure his person or property, with intent thereby to extort money or procure any advantage from him, or to compel him to do any act against his will, shall be punished” etc. The case comes before us on report.
The evidence and admissions show the following facts. In November, 1900, one Allen Simmons at Friendship was found in the possession of nine “short” lobsters in violation of Public Laws of 1897, chap. 285, § 39, as amended by Public Laws of 1899, chap. 81, § 1. (R. S., c. 41, § 17), The penalty fixed by law *228was one dollar for each lobster. The respondent, who was a duly appointed fish warden in Lincoln County, reported the fact to the commissioner of sea and shore fisheries. The commissioner, Nov. 6, 1900, wrote to Simmons about the matter, informing him that there was a fine of nine dollars due the state for the nine short lobsters found in his possession, and that he might settle by paying the fine on or before November 15, but received no reply. Afterwards the commissioner turned the case over to the respondent with instructions to write to Simmons, which he did, endeavoring to persuade Simmons to settle the matter. To this Simmons made no reply. In August or September, 1901, the commissioner ordered the respondent to proceed with the case. By this order, the commissioner intended, — and it was so understood by the respondent, — that if the latter could collect the penalty then, by giving the offender another chance, he might do so; otherwise, a prosecution was to be commenced. Thereupon the respondent wrote Simmons the letter which is complained of, which is as follows:—
Office of N. J. Hanna.
New Harbor, Maine. New Harbor, Me. Sept. 22, 1901.
Fish and Game Warden
for Lincoln County.
Mr. Allen Simmons.
Sir. — Your lobster case is not yet settled. You owe the state $9. — and unless you send that amount to the Commissioner at Boothbay Harbor, the Hon. A. B. Nickerson, on or before September 6, I am ordered to take your case to the grand jury in Bock land this term. Let me hear from you immediately.
Very truly,
N. J. Hanna, Warden.
In the stipulations it is agreed that the letter was written by order of the commissioner.
Upon these facts, is the respondent guilty of the offense charged? We think not. The record is entirely barren of anything to show that the respondent acted with malicious, corrupt or oppressive intent, or that there was any intention of any kind to “extort” money *229or procure any unlawful advantage from Simmons. On the contrary, malice and intended extortion are negatived. The respondent appears to have been proceeding regularly, and in good faith, under the instructions of his superior officer, the commissioner.
But it is contended on behalf of the state that the commissioner had no authority to collect, or to direct the respondent to collect, the fine in the manner attempted; that the threat, therefore, was for an unauthorized and unlawful purpose, namely, to obtain the money of Simmons or procure an advantage from him in an unlawful way; and that, in law, such a threat wilfully made was malicious. It will not be necessary to carefully criticise the conclusion of the state’s argument, for we think the premise is unfounded.
The commissioner assumed to act under the provisions of Public Laws of 1897, ch. 285, § 48, as amended by Public Laws of 1899, ch. 81, § 3, (R. S. ch. 41, § 61,) which provides that “all fines and penalties under this act may be recovered by complaint, indictment or action of debt brought in the county where the offense is committed.” The action of debt shall be brought in the name of the commissioner of sea and shore fisheries, and all offensés under, or violations of, the provisions of this statute [which forbids having short lobsters in possession] may be settled by the commissioner of sea and shore fisheries, upon such terms and conditions as he deems advisable. All fines, penalties and collections under this act shall be paid into the treasury of the county where the offense is committed, and by such treasurer to the state treasurer, to be added to and made a part of the appropriation for sea and shore fisheries.” By Public Laws of 1897, ch. 285, § 28, (R. S., ch. 41, § 2.) it is provided that “wardens shall enforce all laws and the rules and regulations relating to the sea and shore fisheries, arrest all violators thereof, and prosecute all offenses against the same.” Construing these two statutes together, the state contends that legal proceedings of some kind must be instituted by a warden against an alleged offender before the commissioner has authority to demand or receive payment of the penalty. We do not so understand the statute. It says that “offenses” may be settled by the commissioner. It does not say that “prosecutions” may be settled by him. It bestows upon the *230commissioner a comprehensive and delicate power. It vests in him a discretion not possessed by the court. The court, upon conviction, must impose the penalty fixed by law, but the commissioner may “settle” offenses as he deems advisable.
It will be noticed that the provision for settling offenses is found in the text of the statute in close connection with the provisions for bringing the action of debt to recover a penalty in the name of the commissioner; and while it is unnecessary in this case to decide whether or not the power of the commissioner to settle extends to criminal prosecutions already commenced, — for here none had been commenced,— it must be clear that the commissioner is authorized to settle a civil action of debt commenced in his name. If he can settle a minuté after a writ is made, why may he not do so a minute before? If an offender is caught red handed, and is willing to settle without suit, why should it be necessary to bring suit against him? We think it is not. The statute does not require it. We think it is permissible for the commissioner to settle before suit, or any other process, is instituted. This conclusion is fortified by the use of the word “collections” in the concluding sentence of the section, in which it is provided that “all fines, penalties and collections under this act shall be paid into the treasury of the county,” etc. Earlier in the section it is provided that all “ fines and penalties ” may be recovered by complaint, indictment or action of debt.” Here it is provided that all “fines, penalties and collections'” shall be paid into the county treasury. Taken in connection with the other language of the section, the word “collections,” if it means anything, seems to refer to moneys collected, and not to fines and penalties imposed and paid.
Now if it was lawful for the commissioner to settle with Simmons, it could not be unlawful for him to advise, persuade or urge Simmons to settle, even to go to the extent of pointing out to him that the alternative would be a criminal prosecution. The commissioner was seeking no more than he was authorized to collect, and he was seeking it in a lawful manner.
But at this point the state contends that whatever may have been the authority of the commissioner, it was authority vested in him personally, and could not be delegated lo a warden. True. And it *231is equally true that the commissioner did not attempt to delegate any authority to the respondeut. He did not attempt to clothe the latter with any discretion to settle. The warden could not fix terms and conditions. He could not take less than the amount due. He could simply receive, if Simmons would pay. When the commissioner had exercised his discretion and had determined that Simmons ought to pay the full penalty, we perceive no illegality nor impropriety in his ordering a warden to make the demand.
In accordance with the stipulation the entry must be,
Judgment for the defendant.