concurring: I concur in the decision of this case and am of opinion that the act in question is a constitutional exercise of legislative power. It is conceded that fishing in the waters of our sounds is the subject of legislative *233regulation, that the Legislature may prescribe the time and method of taking fish, establish closed seasons, prohibit the placing of nets and traps within certain localities, declare such placing a criminal nuisance and direct its summary abatement. When such legislation, however, involves the destruction of private property, it must be limited to the reasonable necessities of the case which calls it forth, and may under given circumstances become the subject of judicial scrutiny and control.
The extreme necessity for this legislation and its beneficent purpose have been clearly'and forcibly stated in the principal opinion, and the act, after making the placing of nets in prohibited territory a criminal nuisance, proceeds to direct a sale and forfeiture of the nets when placed in violation of its provisions. This last feature of the act in question is not usually or properly considered a part of the punishment, but as done in abatement of the nuisance, and, unless clearly unreasonable or utterly foreign to the purpose designed, will be upheld by the courts.
Mr. Bishop in his new work on Criminal Law, vol. 1, says of such forfeitures: “Destruction by abatement is a phrase denoting one form of the transmutation to be brought to view in this chapter. It occurs when one permits a thing to become a nuisance which another abates without appeal to the courts * * * If a man so uses his property that it becomes a nuisance, the nuisance is liable to be abated to the destruction, if necessary, of the property * * * Abatable nuisances afford a further illustration. Whenever the subject of property, whether through its owner’s fault or not, is in a situation to be a nuisance, it is not strictly forfeited, but the nuisance may be abated to the destruction, if necessary, of the property. Even where a nuisance is created by the commission of a crime, its abatement without judicial proceedings is not punishment, which can follow only the conviction of an offender. On such conviction, the court perhaps usu*234ally, not always, orders tbe abatement, yet even this is not ■ properly a part of the punishment * * *” Again, to meet a dictum that such forfeitures were violations of constitutional guaranties, — for trial by jury, and that no one should be deprived of his property but by the law of the land, — -he says: “The better view is pretty plainly antagonistic to this dictum. It is competent, on general principles, for the law-making power to declare what shall be a public nuisance and to provide for the forfeiture of the thing which shall become such. The forfeiture may be as well without judicial proceedings as with, and the case is entirely outside such constitutional provisions , as those referred to by the learned judge * * * In principle, and in conclusion, we appear to have something like the following:- Whenever the law, statutory or common, creates a forfeiture of property by reason of particular circumstances attending it, or of its being dangerous to the community, or of any form or position which it assumes, this forfeiture is not to be deemed a punishment inflicted on its owner in the criminal law sense. It is not therefore within constitutional guaranties protec-ing'persons accused of crime.” This author further says: “There is a difference between what is on its face a nuisance or otherwise dangerous, therefore to be at sight and in pais forfeited or abated like a dog or hog wrongly at large, or a thing laid to obstruct a public way, and an article not in itself harmful, yet made so by the evil purpose of its owner. In this latter case, the owner should have notice,” etc. The case before us is declared a nuisance by reason of its placing regardless of the intent of the owner, and may be likened to the instance given of the physical obstruction of a highway.
I believe in case of a hog running at large in violation of an ordinance, our own courts have held that some kind of notice or opportunity to redeem should be given. This, however, can be easily distinguished on the ground that the forfeiture of the hog is clearly not necessary to the purpose of *235tbe ordinance; and this I apprehend is the true principle on which forfeitures of this character can be sustained, whether it is done in abatement of the nuisance and is required by the reasonable necessity of the case.
After much reflection I have come to the conclusion that the act in question is neither unreasonable nor oppressive, and may well be upheld as a lawful and proper forfeiture of the offending property. This is by no means because of the small value of the property seized, but rather because of the vast extent and importance of the industry involved, the large number of people affected, the great difficulty of affording protection by reason of the exposed nature of the place, the impossibility of keeping effective watch, and the ease with which such property can be withdrawn, concealed or replaced by offenders in the prohibited ground. Under all the facts and circumstances of. this case, the court would not be justified, in declaring that the forfeiture directed in the effort to abate this nuisance is unreasonable and in excess of legislative power.
In some of the decisions it is suggested that the same constitutional provisions, which guarantee the enjoyment of a citizen’s property, protect also his life and liberty, and if property can be lawfully forfeited or destroyed by legislative or executive action, the life and liberty of the citizen can be dealt with in like manner. But not so. Such legislation affecting life or liberty would be so clearly excessive and so entirely foreign to the object and purpose of abating a nuisance, that it would at once become the proper occasion for judicial interference. It cannot be likened to the forfeiture of offending property seized “in -flagrante delicto” and directed in the necessary and reasonable effort to abate a criminal nuisance. The suggestion, I respectfully submit, affords no aid to the proper construction of the statute before us. I concur in the decision of the court.