¶1This was a prosecution against plaintiffs in error for a violation of Sec. 2 of the act of 1885 commonly known as the Fish Law. This section provides: “ That no person shall place, cause to be placed or erected, any seine, net, wire, fish dam or other obstruction in, or across … any watercourse in such manner as shall obstruct the free passage of fish up or down or through such watercourse.”
¶2The evidence discloses that plaintiffs in error set a net with wings which reached nearly to the banks on either side. Some of the witnesses stated that the wings came within a few inches of the hanks, while others testified that upon one side there was a space of four feet between the end of the wing and the bank, through which fish could and did pass.
¶3It is evident, we think, from the language of the act, that the legislation intended to prohibit such an obstruction to the passage of fish as is shown in this case. Some of the fish passing along the stream succeeded in escaping the net and made their way around the ends, and because of this it is insisted by plaintiffs in error that their free passage was not obstructed.
¶4We can not assent to this conclusion. Webster defines “free” as “not under restraint; at liberty; not obstructed; as, the water has a free passage or channel.”
¶5Anything which substantially and materially interferes with the passage of fish up and down the stream would come within the meaning of the words “obstruct the free passage of fish,” although it might be shown that it would be possible for all the fish in the stream to pass around or over such obstructions.
¶6It is insisted that the suit should have been dismissed on the ground that the law of 1885 was repealed by the act of 1887. It is not necessary to determine the question, for the reason that if the law of 1885 has been repealed by that of 1887, as contended by plaintiffs in error, it would make no difference in the present case. Sec. 4, Chap. 131, R. S., provides that such repeal shall not affect any prosecution begun under and by virtue of the act so repealed.
¶7It is next insisted that it was erroneous for the jury to fix the amount of the fine. In all cases of appeal from a justice it seems to be intended that the jury may fix the amount of the fine to be imposed. Sec. 11, Div. 9, Criminal Code.
¶8Finding no substantial error in the record, the judgment of the Circuit Court will be affirmed.
¶9Judgment affirmed.