Davis v. State, 155

• Citation: 283 Md. 358,390 A.2d 1112
• Decision Date: 18 August 1978
• Docket Number: No. 155,155
• Parties: Macio DAVIS v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 358

283 Md. 358

390 A.2d 1112

Macio DAVIS v. STATE of Maryland.

No. 155.

Court of Appeals of Maryland.

Aug. 18, 1978.

Edward H. Nabb, Cambridge, and Hyman Ginsberg, Baltimore (Ginsberg & Ginsberg, Baltimore, on brief), for appellant.

Edward F. Lawson, Asst. Atty. Gen., Annapolis (Francis B. Burch, Atty. Gen., Baltimore, and John B. Griffith, Asst. Atty. Gen., Annapolis, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

This appeal calls upon us to determine whether Maryland statutes imposing limitations on the possession of certain kinds and sizes of crabs are unconstitutional as affronting the Commerce Clause of the Federal Constitution.

I

Callinectes sapidus Rathbun ¹ is a species of blue crab which inhabits the Chesapeake Bay and its tributaries. It is usually known as a "hard crab" because of the hard shell in which it is encased most of its life. ² It grows by moulting or shedding this shell, and during the various stages of the moulting process it is referred to by other names. For a brief period after shedding its hard shell, the new shell is very soft, and the crab is called a "soft crab." The moulting begins when a soft shell has fully developed under the hard shell, and the hard shell begins to "bust." This is indicated by a pink line or rim on the edge of that part of the back fin next to the outer section of the fin. At this stage it is a "buster" or "peeler." Maryland Code (1974, 1977 Cum.Supp.) § 4-801 (e) of the Natural Resources Article. ³ An under-developed peeler is a "green crab." § 4-801 (d). After the hard shell has been shed, the exposed soft shell starts to harden. At this stage the crab is a "paper back" or "buckram crab." § 4-801 (b). At other stages in the development of the blue crab's life cycle it is called a "fat crab" and a "snot crab." See W. W. Warner, Beautiful Swimmers Watermen, Crabs and the Chesapeake Bay 21-22, 27-28, 90-119 (1976).

The hard crab is an important natural resource of Maryland with a significant impact on the economy of this State. It is treasured as food, ⁴ and on the way to the ultimate consumer, it may pass through the hands of a waterman who catches it, a packer who processes it to obtain the meat, a broker or wholesaler, and a merchant or retailer, such as a store, a restaurant, or a "crab house."

II

The General Assembly has declared the intention to insure the preservation, development, wise use, and enjoyment of all the natural resources for greatest benefits to the state and its citizens. § 1-101(b). To this end it created the Department of Natural Resources of Maryland as a principal department of the state government, headed by a Secretary whose reputation and experience demonstrate his interest in the field of natural resources. § 1-101(a). One of the natural resources which is the responsibility of the Secretary to preserve, conserve, enhance, and perpetuate, § 1-104(a), is the hard crab. Title 4 of the Natural Resources Article concerns "Fish and Fisheries." The Fisheries Administration is created within the Department of Natural Resources, § 4-201, and the Secretary of Natural Resources is expressly made responsible for conservation management of the fish, fisheries, fish resources and aquatic life within the state, § 4-202. ⁵ In title 4 "Fish" includes "crustaceans and mollusks," § 4-101(f), and, according to the Revisor's Note the term "crustaceans and mollusks" includes crabs. The blue crab, under its various names, is the subject of subtitle 8 of title 4. § 4-801 (c) and Revisor's Note thereto, and § 4-802. It is manifest that the General Assembly fully recognized the importance of the blue crab as a natural resource of the State. It established a closed season, See § 4-101(c), by proscribing: "A person may not catch hard crabs in any waters of the State, between January 1 and April 1." § 4-808. ⁶ It further restricted the catching and possessing of hard crabs, soft crabs, fat crabs, green crabs, and buckram crabs. Section 4-809 (a) provides:

"A person may not catch or possess more than four hard crabs per bushel or ten hard crabs per barrel which measure less than 5 inches across the shell from tip to tip of spike, any peelers measuring less than 3 inches across the shell from tip to tip of spike, or any soft crabs measuring less than three and one-half inches across the shell from tip to tip of spike."

Section 4-809(d) prohibits a person from catching, possessing, or keeping in floats any green crab which is less than five inches from tip to tip of the spikes, or any buckram crab of any size. Section 4-809 (b), applicable only to the waters of Worcester County, declares that "a person may not catch, possess, or keep in floats any fat crabs, or any crab known as snot crab, green crab, or buckram crab." But "the minimum size of crabs does not apply to mature female crabs, identified by the rounded apron," in the waters of that county. § 4-809(c). By Acts 1975, ch. 174, however, "crabs imported into Maryland during the closed season for catching crabs" were exempted from the provisions of § 4-809 (a) "if the person possessing the imported crabs has a certificate of origin." § 4-809 (e). The restriction on the possession of undersized crabs is applicable to crabs caught in waters outside Maryland:

"Any local or general law of the State which sets or regulates minimum and maximum size of fish, or regulates or prohibits the sale of fish, applies whether the fish are caught in the waters of the State or in the waters of any other state, county, or territory and brought into the State. Any fine or penalty prescribed for violation of these laws applies to the same extent." § 4-102 (a). ⁷

It is a misdemeanor to violate a provision of title 4, punishable by fine or imprisonment or both, with a harsher penalty authorized for a second or subsequent offense occurring within two years of any prior violation. Section 4-1201. ⁸

III

Macio Davis was charged under a citation issued by a natural resources police officer for violating the provisions of § 4-809(a). See §§ 1-201 through 1-205. He was tried in the District Court of Maryland, convicted and fined $20 and costs. On appeal to the Circuit Court for Dorchester County he was again convicted on a trial De novo, and the same punishment was imposed. We granted his petition for a writ of certiorari to review the judgment of that court. Maryland Code (1974, 1977 Cum.Supp.) §§ 12-305, § 12-307, and § 12-401 of the Courts and Judicial Proceedings Article.

The facts surrounding Davis's conviction are not disputed. J. M. Clayton Co., located in Cambridge, Maryland, had been in the crab processing business for over 45 years. ⁹ It is necessary that it import crabs from other states to keep the 96 persons it employs working year-round. There are only two brief periods, in July and October, when local crabs are sufficient to provide even 50% Of its needs. The size laws in the states from which the crabs were imported were similar to those of Maryland, but the percentage of undersized crabs permitted varied. Clayton ordered crabs from Courtney Seafood, a broker in Virginia. Davis was employed as a truck driver for Courtney, and on 13 July 1977 he delivered 230 bushels of crabs, packed in bushel baskets, to the Clayton processing plant in Cambridge. An inspection of about a dozen of the baskets by a natural resources marine police sergeant showed that there were 42 undersized crabs per bushel. The crabs were ordered in Maryland, caught in Virginia, and hauled to Maryland to be processed. The meat of the Virginia crabs would be mingled with the meat of the local crabs and shipped to out of state buyers. The crabs imported were not unlawful in Virginia. They had passed inspection there, and Davis had a delivery slip showing the origin, destination, price and number of bushels he was to deliver to Clayton. If they had been transported into Maryland during the closed season, there would have been no violation of the law. § 4-809(e).

Clayton's president testified that the crabs were Virginia seaside crabs and that generally they could be distinguished from local crabs "by the color and so forth." The marine police officer said that after 20 years of service, he could distinguish a seaside crab from an ordinary Chesapeake Bay Crab "sometimes. Not all the time, but in general." ¹⁰ In any event, it was not suggested that the crabs in the possession of Davis had been caught in Maryland waters or that there had been any tampering with the containers in which they were packed. The State conceded in oral argument before us that the crabs had been transported in interstate commerce.

Davis does not deny that the hard crabs found in his possession contained more than four undersized crabs per bushel, and that, therefore, he was in violation of § 4-809 (a) as charged. He seeks reversal, however, on the ground that §§ 4-809 (a) and 4-102 (a) "are unconstitutional, being in violation of the Commerce Clause of the Federal Constitution . . ." which, by its terms, grants Congress the power "to regulate Commerce . . . among the Several States . . . ." U.S.Const. art. I, § 8, cl. 3.

IV

In areas where activities of legitimate local public interest overlap with the national interests expressed by the Commerce Clause, the courts are called upon to make a delicate adjustment of the conflicting state and federal claims, a task which "necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce." Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 441, 98 S.Ct. 787, 793-794, 54 L.Ed.2d 664 (1978). From time to time the Supreme Court employed various tests in this process of delicate adjustment, ¹¹ but by the time Raymond Was decided, experience had taught it that no single conceptual approach identifies all of the...