Kane v. State

• Citation: 17 A. 557,70 Md. 546
• Parties: KANE v. STATE.
• Decision Date: 08 May 1889
• Court: Court of Appeals of Maryland

17 A. 557

70 Md. 546

KANE

v. STATE.

Court of Appeals of Maryland.

May 8, 1889.

Error to circuit court, Talbot County.

Argued before ALVEY, C. J., and MILLER. ROBINSON, BRYAN, and MCSHERRY, JJ.

S. T. Milbourne, for appellant. Atty. Gen. Whyte, for appellate.

ALLEY, C. J. This case is here upon error assigned in the judgment of the court below in quashing the writ of certiorari issued to a justice of the peace of Talbot county, requiring him to produce the record of conviction of the plaintiff in error for the alleged violation of the act of 1878, c. 359,—one of the local oyster laws of the state. It appears from the petition of the plaintiff in error filed for the writ of certiorari, under oath, that the owner of a certain sloop, called the "George Washington Faunce," was licensed to take oysters with dredge, scoop, or scrape, in certain waters within Dorchester county, and in the waters of the Chop tank river, between and within Dorchester and Talbot counties, for the season of 1888-89; that the plaintiff in error, being in charge of said boat, was, on the 15th of January, 1889, arrested, and the boat was seized by officers of the state fishery force, upon the charge that the plaintiff in error did not have the number of the license displayed on the boat, as required by section 7 of the act of 1878, c. 859; that on the 16th of January, 1889, the plaintiff in error was carried before ED. J. STEVENS, a justice of the peace of Talbot county, to be dealt with according to law,— it is conceded that the arrest was made without the legal process of warrant for that purpose. It is further alleged in the petition that on the 21st of January, 1889, the case was tried by the justice upon the charge aforesaid, and that judgment was rendered, finding the plaintiff in error guilty, and thereupon a fine of $25 was imposed, with costs, and that the plaintiff in error was committed to jail until the fine and costs were paid. The petition alleges that many errors and irregularities were committed by the justice in his proceeding, and principally that the justice failed to acquire jurisdiction in the matter, by reason of the fact that the arrest had been made without warrant, and that no charge in writing was presented to the justice, setting forth and describing the offense whereon to found his proceeding. The justice, in his return to the writ, sent up to the circuit court the following copy from his docket, as containing the entire record of the proceedings that took place before him, to-wit: "State of Maryland vs. Murray Kane, SCPG. W. Faunae. January 16th, 1889. Charge of having no numbers displayed. Waives a jury trial. Guilty. Fine, $25, and costs; and stands committed until fine and costs are paid. Parties committed to jail. No other papers in the case. Witness my hand and E. J. STEVENS, J. P. [Seal.] True copy. Teste: E. J. STEVENS, J. P." Upon this return the circuit court quashed the writ of certiorari, holding that the justice had jurisdiction of both the person of the plaintiff in error, and of the subject-matter of the accusation, and that ruling is assigned as error in the court below.

The record of the proceeding before the justice is certainly of a very meager and inexplicit character. It neither shows by whom, nor under what authority, the plaintiff in error was arrested, and brought before the justice for trial; nor does it show under what statute the justice proceeded. But the defective record made by the justice in these particulars is aided and made certain by the statements and admissions of record contained in the petition of the plaintiff in error for the writ of certiorari. In that petition it is stated that the arrest of the plaintiff in error was made by the officers of the state fishery force, and that such arrest was made for the alleged violation of the provisions of the seventh section of the act of 1878, c. 359, requiring the number of the license to be painted on the boat, etc.; and that it was upon that charge that the plaintiff in error was tried and convicted by the justice. The question here is not whether the proceeding before the justice was in all respects regular and free from error, but whether he acquired jurisdiction of the person of the plaintiff in error, and of the subject-matter of the accusation, and acted within the limits of such jurisdiction; for if he rightfully acquired such jurisdiction, and acted within the limits thereof, the court below was clearly right in quashing the writ of certiorari.

The state fishery force is a marine police, constituted by statute, for the purpose of enforcing the legal regulations prescribed for and required to be observed in the taking of both shell and floating fish, within the tidal waters of this state, and particularly the oysters of those waters. The present fishery force was organized under the provisions of the act of 1886, c. 296, repealing and re-enacting former statutes upon the subject, with amendments, to "provide further police regulations for the protection of the oysters in the waters of this state;" and which latter statute is incorporated in the Code of 1888, as article 72, tit. "Oysters" It is made the duty of this police force to execute all warrants directed to it, founded upon information, for the apprehension of parties offending against the regulations prescribed by the statutes upon the subject, and it is required to patrol the tidal waters of the state for the purpose of detecting and arresting all violators of the law; and,...