CarpentbR, J.
This action is brought on the statutes of 1868 and 1872, which are sufficiently set out in the statement of the case. There are three counts in the declaration. The first alleges that the defendants were carrying on, in an establishment operated to extract oil from white-fish, and other purposes, the business of manufacturing oil and manure from fish, and of manufacturing artificial manures; and that they permitted and allowed the liquids and materials used [493]*493and produced in, said establishment and business, and the refuse from said establishment, to run, flow, &c., into Milford Harbor. The second count is substantially like the first, except that it describes the business carried on by the defendants as the manufacturing of oil from white-fish. The third count will be noticed hereafter.
The defendants demurred generally and specially. The court below overruled the demurrer and rendered judgment for the plaintiff. The cause is brought before this court by a motion in error.
1. It is claimed that the declaration is defective in substance in not alleging that the refuse, which was permitted to drain into the sea, was deleterious to fish. As we interpret the statute it forbids, without qualification, the flowage or drainage of refuse materials from the kinds of business mentioned, into the waters adjacent to this state. It assumes that such substances are destructive, or at least harmful, to fish, and they must be so regarded until the contrary appears. We may concede that the word “ refuse ” is somewhat vague, and that there may be some practical difficulty in determining, in some cases, precisely what was intended by it; but for the purposes of this case the presumption is that it has a sufficiently definite meaning to all persons who are familiar with the details of the business to which it relates. ■ If in any case the question shall arise whether the material is refuse, within the meaning of the statute, it will be for the court, or jury, as the case may be, to determine it in the light of all the facts. It may happen that the substance in question will be found to be deleterious to fish, and yet not, strictly speaking, refuse. In that case another clause of the statute will apply, which prohibits “ other deleterious substances to clams, oysters, &c.”
We think, therefore that the first two counts, in alleging the flow of refuse, are sufficient in substance.
In the third count the business carried on by the defendants is alleged to be “ the manufacturing manure from fish and the manufacturing of artificial manures ” ; but the act complained of is that the defendants did “ permit and allow [494]*494the liquids and materials used and produced in said business to run, flow, Ac.” The statute of 1872 expressly provides that “ it shall be a violation of said act ” (the act of 1868,) 4 to permit or allow any of the liquids or materials used or produced in said establishments or businesses to run, flow, Ac.” It must be confessed that this is a specimen of loose legislation. Although this count is framed in the language of the statute, yet being a penal statute, it is very doubtful whether we can, consistently with the rules of law and the principles of justice, give to it the effect contended for by the plaintiff. It is possible,- at least, that liquids and materials may be used in this kind of business which are perfectly harmless. We cannot believe that the legislature intended to subject a party to a heavy penalty for permitting such materials to flow into the sea. But as it is unnecessary in this case to determine what effect may be given to this part of the statute, we forbear to discuss the subject further.
2. It is claimed that the declaration is bad for duplicity, or for a misjoinder of counts. We think it was the manifest intention of the pleader to frame his declaration in three counts, and we shall so regard it. The principal objection to this is, that the first and second counts do not conclude with the allegation, “ whereby and by force of said statute, Ac.” But we are 'inclined to treat that allegation at the close of the third count as applicable alike to each of the other two. Yiewed in that light the omission, if a defect at all, is a mere circumstantial defect, and is cured by statute, Gen. Statutes, p. 19, sec. 90. The objection therefore that there is but one count in the declaration, and that that is bad for duplicity, is not well founded.
Is there a misjoinder of counts ? We think not. “ Mis-joinder of causes of action, or counts, consists in joining, in different counts in one declaration, several different demands, which the law does not permit to be joined, to enforce several distinct, substantive rights of recovery.” As where a declaration joins a count in trespass with another in case, for distinct wrongs, or one count in tort with another in contract.” Gould’s PL, ch. 4, sec. 98. Here there is but one [495]*495demand, one rig-lit of recovery. There is no unnecessary repetition of the facts out of which his cause.of action arises, for the matter in each count is materially different from the matter in each of the other counts. The different counts are but different modes of stating the same cause of action, which is clearly allowable. It is true that it is usually averred that each count is for a different cause of action, but every lawyer knows that that averment does not mean what it says. The truth is directly the reverse, and it is so understood. The pleader in this case boldly omitted it; not only so, but he averred affirmatively in each of the second and third counts that the cause of action therein stated was the same as in the preceding count or counts. In this way the declaration is stripped of all fiction and the simple truth is stated ; but the meaning is the same as in the usual form. Had these averments been omitted this objection would have been without foundation. Their only effect is to make it appear upon the face of the declaration that the plaintiff will offer proof only of one transaction, and claim to recover only one penalty. We are asked then to hold the declaration bad for the reason that the plaintiff therein stated a truth in lieu of a falsehood,, and thereby told the defendants what they had a right to. know at or before the opening of the trial. Some elementary authorities seem to sanction this claim ; but the defendants cite no adjudged case in its support, and we are confident that no well considered modern case can bo found that goes that length.
3. It is next objected that the town of Milford should-have been joined as a plaintiff, or mentioned as one for whose benefit the suit was brought. We do not think this was necessary. The first statute gives one half the penalty to I him who shall sue therefor, and the other half to the town. 8 The latter provides that “ any person may sue for in his own name, and collect, said forfeiture or penalty.” We see no evidence in this that the legislature intended that the town should be joined as a plaintiff, or should be entitled to one _ half the penalty. If such had been their intention we can '"perceive no object in the change. It is obvious that the [496]*496intention was to give the entire penalty to him who should sue for and collect tlie same.
This being so, it is further objected that the conclusion of each count, “ contrary to said statutes,” is wrong; that it should have concluded contrary to the statute of 1872.
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CarpentbR, J.
This action is brought on the statutes of 1868 and 1872, which are sufficiently set out in the statement of the case. There are three counts in the declaration. The first alleges that the defendants were carrying on, in an establishment operated to extract oil from white-fish, and other purposes, the business of manufacturing oil and manure from fish, and of manufacturing artificial manures; and that they permitted and allowed the liquids and materials used [493]*493and produced in, said establishment and business, and the refuse from said establishment, to run, flow, &c., into Milford Harbor. The second count is substantially like the first, except that it describes the business carried on by the defendants as the manufacturing of oil from white-fish. The third count will be noticed hereafter.
The defendants demurred generally and specially. The court below overruled the demurrer and rendered judgment for the plaintiff. The cause is brought before this court by a motion in error.
1. It is claimed that the declaration is defective in substance in not alleging that the refuse, which was permitted to drain into the sea, was deleterious to fish. As we interpret the statute it forbids, without qualification, the flowage or drainage of refuse materials from the kinds of business mentioned, into the waters adjacent to this state. It assumes that such substances are destructive, or at least harmful, to fish, and they must be so regarded until the contrary appears. We may concede that the word “ refuse ” is somewhat vague, and that there may be some practical difficulty in determining, in some cases, precisely what was intended by it; but for the purposes of this case the presumption is that it has a sufficiently definite meaning to all persons who are familiar with the details of the business to which it relates. ■ If in any case the question shall arise whether the material is refuse, within the meaning of the statute, it will be for the court, or jury, as the case may be, to determine it in the light of all the facts. It may happen that the substance in question will be found to be deleterious to fish, and yet not, strictly speaking, refuse. In that case another clause of the statute will apply, which prohibits “ other deleterious substances to clams, oysters, &c.”
We think, therefore that the first two counts, in alleging the flow of refuse, are sufficient in substance.
In the third count the business carried on by the defendants is alleged to be “ the manufacturing manure from fish and the manufacturing of artificial manures ” ; but the act complained of is that the defendants did “ permit and allow [494]*494the liquids and materials used and produced in said business to run, flow, Ac.” The statute of 1872 expressly provides that “ it shall be a violation of said act ” (the act of 1868,) 4 to permit or allow any of the liquids or materials used or produced in said establishments or businesses to run, flow, Ac.” It must be confessed that this is a specimen of loose legislation. Although this count is framed in the language of the statute, yet being a penal statute, it is very doubtful whether we can, consistently with the rules of law and the principles of justice, give to it the effect contended for by the plaintiff. It is possible,- at least, that liquids and materials may be used in this kind of business which are perfectly harmless. We cannot believe that the legislature intended to subject a party to a heavy penalty for permitting such materials to flow into the sea. But as it is unnecessary in this case to determine what effect may be given to this part of the statute, we forbear to discuss the subject further.
2. It is claimed that the declaration is bad for duplicity, or for a misjoinder of counts. We think it was the manifest intention of the pleader to frame his declaration in three counts, and we shall so regard it. The principal objection to this is, that the first and second counts do not conclude with the allegation, “ whereby and by force of said statute, Ac.” But we are 'inclined to treat that allegation at the close of the third count as applicable alike to each of the other two. Yiewed in that light the omission, if a defect at all, is a mere circumstantial defect, and is cured by statute, Gen. Statutes, p. 19, sec. 90. The objection therefore that there is but one count in the declaration, and that that is bad for duplicity, is not well founded.
Is there a misjoinder of counts ? We think not. “ Mis-joinder of causes of action, or counts, consists in joining, in different counts in one declaration, several different demands, which the law does not permit to be joined, to enforce several distinct, substantive rights of recovery.” As where a declaration joins a count in trespass with another in case, for distinct wrongs, or one count in tort with another in contract.” Gould’s PL, ch. 4, sec. 98. Here there is but one [495]*495demand, one rig-lit of recovery. There is no unnecessary repetition of the facts out of which his cause.of action arises, for the matter in each count is materially different from the matter in each of the other counts. The different counts are but different modes of stating the same cause of action, which is clearly allowable. It is true that it is usually averred that each count is for a different cause of action, but every lawyer knows that that averment does not mean what it says. The truth is directly the reverse, and it is so understood. The pleader in this case boldly omitted it; not only so, but he averred affirmatively in each of the second and third counts that the cause of action therein stated was the same as in the preceding count or counts. In this way the declaration is stripped of all fiction and the simple truth is stated ; but the meaning is the same as in the usual form. Had these averments been omitted this objection would have been without foundation. Their only effect is to make it appear upon the face of the declaration that the plaintiff will offer proof only of one transaction, and claim to recover only one penalty. We are asked then to hold the declaration bad for the reason that the plaintiff therein stated a truth in lieu of a falsehood,, and thereby told the defendants what they had a right to. know at or before the opening of the trial. Some elementary authorities seem to sanction this claim ; but the defendants cite no adjudged case in its support, and we are confident that no well considered modern case can bo found that goes that length.
3. It is next objected that the town of Milford should-have been joined as a plaintiff, or mentioned as one for whose benefit the suit was brought. We do not think this was necessary. The first statute gives one half the penalty to I him who shall sue therefor, and the other half to the town. 8 The latter provides that “ any person may sue for in his own name, and collect, said forfeiture or penalty.” We see no evidence in this that the legislature intended that the town should be joined as a plaintiff, or should be entitled to one _ half the penalty. If such had been their intention we can '"perceive no object in the change. It is obvious that the [496]*496intention was to give the entire penalty to him who should sue for and collect tlie same.
This being so, it is further objected that the conclusion of each count, “ contrary to said statutes,” is wrong; that it should have concluded contrary to the statute of 1872. The object of the averment, “ contrary to the form of the statute,” is to show that the action is brought upon the statute, and that it is not an action at common law. If that otherwise appears upon the face of the declaration this averment is unnecessary, or is at least a mere formal averment. We think- it sufficiently appears, aside from the conclusion, that the action is brought upon these statutes.' Both are essential to the maintenance of the action in its present form. The provisions of the first relate to the business of manufacturing oil from white-fish; the second extends those provisions to the business of manufacturing artificial manure. The pleader being in doubt whether the injury proceeded from the one, or the other, or from both, framed his declaration so as to meet the proof as it might appear upon the trial. He in the first instance refers to the statutes, and concludes each count “ contrary to said statutes.” In this we see nothing objectionable.
4. The defendants also claim that the judgment is erroneous for the reason that the plaintiff omitted to join in the issue tendered by the demurrer. For the purpose of this question it is agreed that the issue was not in fact joined until after judgment, and after the court had adjourned. Our practice in respect to pleading is liberal, perhaps too much so. If no plea' is entered, and parties go to trial upon the merits, it is always considered as standing upon the general issue. If a special plea is pleaded, and no replication, it is regarded as traversed. And so if a demurrer is tendered, as the other party can only join in the demurrer, that will be considered as done, whenever the parties proceed with the cause without objection. This rule will work no injustice, as it is in the power of the parties at all times to compel the closing of the issue. They may not omit to do that, and take the chances of a favorable judgment, and, if ' [497]*497unsuccessful, reverse the judgment for a circumstantial defect of this character. The statute cited above, Gen. Statutes, p. 19, sec. 90, is applicable to this part of the case also.
The judgment .for cost is authorized by Gen. Statutes, tit. 53, sec. 7.
5. Finally, it is objected that the statutes on which this action is brought are unconstitutional. This objection is two fold. First, that it is not competent for the legislature to impose a penalty for carrying on a harmless business. It is conceded that they may prohibit the flow into the sea of any substance deleterious to fish. Presumptively the refuse from these. manufactories is- deleterious to fish. Until the contrary appears we cannot declare the. law to be unconstitutional on that ground. Secondly, that the fine is excessive'. We should be very reluctant to say that the legislature had exceeded its powers in imposing excessive penalties, and ought not to do so except in a very clear case. It is true the penalty in this statute seems to be a severe one, but whether it is excessive or not must depend materially upon the circumstances and the nature of the act for which it is imposed!. We are not familiar' with the business carried on by these defendants. The amount of capital invested, the amount of profits realized, and the magnitude of the evil sought to be remedied, are all to be considered in determining this question. In looking at this record we are unable to say that the penalty is so disproportioned to the offense as to justify us in holding the law to be void. If experience shall prove, that the severity of the law leads to oppression and injustice, the legislature can easily supply a remedy. At present the presumption is that the penalty is not an unreasonable one.' If not, the defendants must choose between conforming to the law and taking the consequences of its violation.
For these reasons we think there is no error in the judgment.
In this opinion the other judges concurred.