Ex parte Insley

• Decision Date: 01 January 1887
• Citation: 33 F. 680
• Parties: Ex parte INSLEY.
• Court: U.S. Court of Appeals — Fourth Circuit

33 F. 680

Ex parte INSLEY.

United States Circuit Court, D. Maryland.

January 1, 1887.

Atty Gen. Roberts, in behalf of the state of Maryland, and for the sheriff of Anne Arundel county.

That Insley was a citizen of Maryland, subject to her laws, and was held in custody by her officers for violation of them and that therefore all questions arising under them must be determined by Maryland judges in Maryland courts.

Bradley T. Johnson and Bradley S. Johnson, for the petitioner argued--

That the act of assembly of Maryland was contrary to the constitution of the United States and void, and that the petitioner, being deprived of his liberty contrary to the constitution of the United States, under color of this law was entitled to the protection of the federal courts in his federal rights. Ex parte McCardle, 6 Wall. 326; Ex parte Griffin, Chase, 395; Ex parte Turner, Id. 158; Ex parte McCready, 1 Hughes, (U.S.) 600; Ex parte Thornton, 4 Hughes, (U.S.) 220; In re Watson, 15 F. 511, note and authorities 514; Ex parte Tatem, 1 Hughes, (U.S.) 590; Ex parte Engle, Id. 592; Ex parte McKean, 3 Hughes, (U.S.) 25; Ex parte Rowland, 104 U.S. 604; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152; U.S. v. Spink, 19 F. 631; In re Brosnahan, 18 F. 62; In re Davis, 21 F. 396; License Laundry Cases, 22 F. 701; DEADY, J.; Ex parte Virginia, 100 U.S. 339; Virginia v. Rives, Id. 313; Ex parte Siebold, id. 371; Ex parte Clarke, Id. 399; Ex parte Reed, Id. 13; Ex parte Crouch, 112 U.S. 178, 5 S.Ct. 96; Chew Heong v. U.S., 112 U.S. 536, 5 S.Ct. 255.

The Maryland law is void because it deprives the citizens of other states of equal rights with residents of Maryland in the business of carrying, buying, and selling oysters over and on the navigable waters of the United States, (Ward v. Maryland, 12 Wall. 430; Woodruff v. Parham, 8 Wall. 123; Welton v. Missouri, 91 U.S. 282; Webber v. Virginia, 103 U.S. 344a; In re Watson, 15 F. 511;) because it deprives the petitioner of his federal right to use the navigable waters of the United States, (Slaughter-House Cases, 16 Wall. 79; The Daniel Ball, 10 Wall. 563; Miller v. Mayor of New York, 109 U.S. 385, 3 S.Ct. 228; Corfield v. Coryell, 4 Wash.C.C. 379; Gilman v. Philadelphia, 3 Wall. 713; Pom. Const. Law, 2d. Ed. 1880, 532; Crandall v. Nevada, 6 Wall. 35.) The act is void, for it is a regulation of commerce which, by article 1, Sec. 8, Const. U.S., is committed exclusively to congress. Gibbons v. Ogden, 9 Wheat. 1; Railroad Co. v. Husen, 95 U.S. 465; Telegraph Co. v. Telegraph Co., 96 U.S. 1; Sherlock v. Alling, 93 U.S. 99; Sinnot v. Davenport, 22 How. 241; Tax Cases, 12 Wall. 225; Hall v. De Cuir, 95 U.S. 487. The act is void because it is a tax on tonnage, this vessel having been a licensed and enrolled vessel of the United States. Rev. St. Sec. 4220; Steam-Ship v. Tinker, 94 U.S. 243; Tax Cases, 12 Wall. 213; Cooley, Tax'n, 61, and cases.

BOND J.

It appears to the court that George H. Insley is the master of the Thomas Eilis, a vessel of the United States, enrolled and licensed under the laws of the United States, for the coasting trade, and that he is held in custody by the sheriff of Anne Arundel county by virtue of a commitment by a justice of the peace of Maryland, in and for that county, for carrying oysters in his vessel over the navigable waters of the United States in the Chesapeake bay, within the territorial limits of the state of Maryland, without having first obtained a license from the state to carry oysters, as required by the act of the general assembly of Maryland, passed at its session of January, 1884, c. 518. And it further appears that said act of assembly requires the petitioner, before he can carry oysters in his vessel, enrolled and licensed by the United States as aforesaid, to procure a license from the state of Maryland so to do, and to pay the sum of three dollars per ton on the measurement of his vessel for his license.

It is therefore adjudged, that the act of the general assembly of Maryland is contrary to the constitution of the United States, and is therefore void, in so far as it interferes with the right of the petitioner to carry...