#### CARNEY NEAL Qui tam v. MILLS ROBERTS.

Acts of the legislature are presumed to he constitutional; and where in the Court below the validity of an act was drawn in question, and the judgment was in support of it, and the case stated no facts from which the contrary could be inferred, the judgment must be affirmed.

The case, made for the Supreme Court by his honour Judge Strange, at Tyrrell, on the last Circuit, stated that “ this was a penal action for the violation of an act passed at the last session of the legislature, (viz. 1833,) ch. 133, entitled ‘ An act regulating lay days on Frying Pan in Tyr-rell county.’ The facts were clearly proven, and the defendant relied entirely upon the ground that the act of assembly was unconstitutional and void; but the Court being of a different opinion, and verdict and judgment being rendered for the plaintiff,” the defendant appealed.

No counsel appeared for either party.

Danieu, Judge.

— It is stated in the case, that the facts were clearly proven; but the defendant contended, that the act of assembly which gave the penalty, was unconstitutional. But what facts were clearly proven, the case does not disclose. We suppose, the facts were proveí], that the defendant worked his seine at the time and place mentioned in the warrant, and that it was done after the sun rose on the 17th day of April, 1834. But whether the waters called the Frying Pan, compose an arm of the sea, or constitute a navigable river, or a river or creek not navigable; whether the land covered by the water is subject to entry, by our entry laws, or whether the defendant had any title whatever, either to the lands or “ liberty” of fishing in the waters mentioned, we are unable to learn from the case sent to this Court. We are not to presume that the legislature would pass an unconstitutional act, and not discovering any thing in the case to induce us to declare the act unconstitutional, we are bound to affirm the judgment.

Per Curiam. Judgment affirmed.