McGlaughlin v. Warfield

• Decision Date: 03 December 1941
• Docket Number: 44.
• Citation: 23 A.2d 12,180 Md. 75
• Parties: McGLAUGHLIN v. WARFIELD et al.
• Court: Maryland Court of Appeals

23 A.2d 12

180 Md. 75

McGLAUGHLIN v. WARFIELD et al.

No. 44.

Court of Appeals of Maryland

December 3, 1941

Appeal from Circuit Court, Anne Arundel County; Ridgely P. Melvin Judge.

Suit to enjoin enforcement of a statute by Robert Y. McGlaughlin against Edwin Warfield, Jr., and others, constituting the Commission of Tidewater Fisheries.From an order sustaining a demurrer and dismissing the bill of complaint, plaintiff appeals.

Affirmed.

V. Calvin Trice, of Cambridge (Harrington & Harrington, of Cambridge, on the brief), for appellant.

William C. Walsh, Atty. Gen., and Hall Hammond, Deputy Atty Gen., for appellees.

Argued before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINSFORSYTHE, and MARBURY, JJ.

FORSYTHE Judge.

The appeal in this case involves the question of the constitutionality of Chapter 408, of the Act of 1941 of the General Assembly of Maryland, codified as sec. 99A, Art. 39, Flacks' Code, 1939.

The appellant, Robert Y. McGlaughlin, filed a bill of complaint in the Circuit Court for Anne Arundel County, in which it was alleged that he is a resident of Dorchester County, State of Maryland, and was the holder of a license, duly issued by the Clerk of the Court of Dorchester County, entitling him to take or catch crabs by any of the methods at that time in use, including scrape nets, dip nets or trot line; that during the year of 1941he had 'continued to take or catch crabs by means of what is called a 'crab pot', being one of the methods of taking crabs recently used as mentioned in section 105 of Article 39 of the Code.'

The bill then alleges that the appellant has been prevented from using the crab pot, by threats of the officers of the appellee, the Commission of Tidewater Fisheries, who have given notice to all crabbers that a crab pot cannot be used, and if one is found in use, it will be seized, and the user prosecuted.

The bill then charges that the appellee, in thus attempting to prevent the use of crab pots, is acting under the authority of the said Act of 1941, Chapter 408.A demurrer to the bill was sustained, and the bill was dismissed.

The appellant contends that the Act of 1941, ch. 408, is unconstitutional in that it violates the mandate of the Constitution of Maryland, Article III, section 29, that 'every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.'

The Title of the Act is, 'An Act to add a new section to Article 39 of the Annotated Code of Maryland(1939 Edition), title 'Fish and Fisheries', sub-title 'Crabs', said new section to be known as Section 99A and to follow immediately after Section 99 of said Article, to permit the taking of crabs by certain devices.'

The exact text of the Act is that: 'It shall be lawful for any person or persons to take or catch crabs by scrape, dip net and trot line in any of the waters of the State and in no other manner or by any other means, except that in Kent and Queen Anne's Counties soft crabs may be taken by means of a hand-drawn net scrape.'The Act provides a penalty for its violation, and exempts four bodies of water, none of which are involved in this case.

Ever since the adoption of our present constitution, many cases have been before this Court in which the requirement of Article III, sec. 29, of the Constitution has been invoked, under varying circumstances, in efforts to have Acts of the General Assembly declared unconstitutional.

In accordance with the great weight of authority in this country, this Court has consistently held that the purpose of the constitutional provision here invoked is sufficiently complied with if the title of the proposed legislation fairly advises the General Assembly, and the public, of the real nature, and subject matter, of the legislation sought to be accomplished, and in testing conformity of a title of a statute to constitutional requirements that the subject should be described in the title, the Courts are disposed to uphold rather than to defeat the statute, and since every presumption favors the validity of a statute, it cannot be stricken down as void, unless it plainly contravenes a provision of the Constitution; a reasonable doubt in its favor is enough to sustain it.State v. Norris,70 Md. 91, 16 A. 445;Levin v. Hewes,118 Md. 640, 86 A. 233;McCurdy v. Jessop, Warden,126 Md. 318, 95 A. 37;Painter v. Mattfeldt,119 Md. 466, 472, 87 A. 413;Hiller v. State,124 Md. 385, 389, 92 A. 842;Thrift v. Laird,125 Md. 55, 93 A. 449;Leser et al. v. Lowenstein,129 Md. 244, 98 A. 712;Ruehl v. State,130 Md. 188, 194, 100 A. 75;Keiningham v. Blake,135 Md. 320, 322. 109 A. 65, 8 A.L.R. 1066;Weber, Mayor, v. Probey,125 Md. 544, 551, 94 A. 162;Grossfeld v. Baughman,148 Md. 330, 129 A. 370;Parlett Co-Operative v. Tidewater Lines,164 Md. 405, 165 A. 313;Norris v. Mayor and City Council of Baltimore,172 Md. 667, 192 A. 531;Board of Education v. Wheat,174 Md. 314, 199 A. 628;11 American Jurisprudencep. 776, Sec. 128, and note 20.

The Act here in question is a separate law, designed to cover all waters of the State, except the four bodies of water exempted.It is expressly provided that it was to become a part of Article 39, which is set apart in the Code of Public Laws entitled 'Fish and Fisheries', sub-title 'Crabs'.It is not stated in the title, or in the enacting clause, that the Act is to be an amendment of any existing provision of Article 39.But it is expressly stated in both the title, and in the enacting clause, that it was to be a newsection to be added to the Article.It does not state that it repeals, and re-enacts any other section of the Article dealing with that subject.

The appellant contends that the Act is invalid because it was provided that it be designated as Section 99A, to follow Section 99 in Article 39.

Section 99 of Article 39, as codified in the Code of 1939, appears under the subtitle 'Deep Creek Lake'.That section authorized the establishment of fish hatcheries on the waters of that area, and has nothing to do with crabs.Three more Sections follow Section 99, and then follows the Sub-Title 'Crabs'.

Section 99A, dealing with the method of taking crabs, is entirely out of place following Section 99, dealing with fish hatcheries.A mistake was made by the draftsman of the statute in designating Section 99A to follow Section 99, instead of to follow a Section under the Sub-title 'Crabs', with an appropriate number.It is obvious how the mistake happened and possibly how it was unavoidable.From an examination of the 1935 Supplement to the Code, it will be found that in Article 39, the sub-title of 'Deep Creek Lake' contained Sections 81 to 92, inclusive, and the Sub-title 'Crabs' begins with Section 93, and ends with Section 101.Section 99 of the latter sub-title deals with the same matter as section 111 of the new 1939 Code.Therefore, prior to the appearance of the new 1939 Code, Section 99A would have been in its proper place.But by reason of new sections added, it now should appear as Section 111A.The new 1939 Code was not available until late in 1940, and the first copies went to the Courts.It was not available to the profession until the Spring of 1941.The Act here involved was the enactment of House Bill 397, which was introduced in the House of Delegates on February 20, 1941, and was passed on March 28, 1941.House Journal, pp. 532, 2111.Without the new Code, the draftsman...