Rayner v. State

• Decision Date: 15 July 1879
• Parties: SMITH RAYNER v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

52 Md. 368

SMITH RAYNER v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

July 15, 1879

The cause was argued before BARTOL, C.J., BOWIE, ALVEY and IRVING, JJ.

Frank H. Stockett, for the plaintiff in error.

The justice of the peace, and consequently the Circuit Court sitting as an appellate court, had no jurisdiction in the case, because the Acts of 1872, ch. 198, and 1878, ch. 502 under which these proceedings were conducted, are unconstitutional, inoperative and void, for the following reasons:

The first section of the Act of 1872, ch. 198, as amended by 1878, ch. 502, is clearly unconstitutional, because it restricts the right of fishery in a part of the Potomac River to a very small minority of the people of the State, and deprives the very large majority of that right. The right of fishing in the waters of the State belongs to the whole people, and cannot be made the exclusive privilege of a few. 3 Kent, 418; Browne v. Kennedy, 5 H. & J. 195; Phipps v. State, 22 Md. 380; Martin v.

Waddell 16 Pet. 368, 410-12; Arnold v. Mundy, 1 Halsted, 1; Weston v. Sampson, 8 Cush. 347.

The 2nd section of the Act of 1872, as amended by 1878, ch. 502, and also the 2nd section of the Act of 1878, are inoperative because the State of Virginia has never assented to said Acts or passed any similar laws, and the burden of proof is upon the State. State v. Hoofman, 9 Md. 28; Compact of 1785, ch. 1, (2 Kilty's Laws.)

The 4th section of the Act of 1878, is somewhat confused in its phraseology. It is an additional section added to the Act of 1872, and to make it intelligible when taken in connection with the first section of the Act, it must mean that the bona fide citizens of Charles County are prohibited from fishing with a trap or pound net near enough to the mouth of the tributaries to prevent the free passage of the fish.

This section, to make sense, must be read and construed with the first section, and is inseparably connected with it. It prohibits all persons from fishing the trap or pound net near the mouth of the tributaries, and then makes an exception in favor of citizens of Charles County. This section is liable to the same objection to which the first section is liable. If the right of fishing in the public navigable waters of the State resides in the people at large, and no exclusive monopoly of this right can be granted to a few, certainly the mode of exercising this common right of fishery must be equally the common right of the whole people of the State. It would hardly do to say that the citizens of Charles should fish with trap or pound nets, while the rest of the State were restricted to hook and line. This section applies to trap or pound nets, without as well as within the tributaries of the Potomac, and for those without the mouths of the tributaries and on the Potomac, the same objection exists that does to the second section, to wit, the State of Virginia has not assented to the Act or passed any similar law.

By the ninth section of the original Act, the attempt to violate the provisions of that law is made a misdemeanor. By necessary implication the consummated act must necessarily be a misdemeanor also. The attempt must precede the wilful act. The word attempt means to try to undertake. No one ever did or will fish in the Potomac with trap or pound net who did not try to do it. Any one, therefore, who does violate the provisions of this law has attempted it, and is therefore guilty of a misdemeanor.

A misdemeanor is a crime. In fact, they are synonymous terms. 4 Bl. Com. 4, 5.

And the person guilty of a misdemeanor is guilty of a crime. A prosecution under this Act is therefore a criminal prosecution, and the accused is entitled to claim the benefit of the 21st section of the Bill of Rights. Ford v. State, 12 Md. 514, 549; Grove v. Todd, 41 Md. 641.

It is true that by the Act the accused has the right to appeal to the Circuit Court from the judgment of the justice of the peace, and on such appeal he has the right of trial by jury, but he is only given the right of a jury trial on his second trial and not on his first; but the 21st section of the Bill of Rights, secures to the accused a jury on his first trial, and any Act of Assembly that attempts to take away that right is void. The Bill of Rights only contemplates one trial.

In State v. Mister, 5 Md. 11, no question was raised as to the constitutionality of the law, but that case, as well as the case of State v. Mace, 5 Md. 337, recognizes the law to be that if the Circuit Court had no authority by law to revise the decision of the justice, an appeal would lie to this court. See also Cole v. Hynes, 46 Md. 181; Herzberg v. Adams, 39 Md. 309.

Now, an unconstitutional or inoperative Act of Assembly is no law at all. It can give no right of appeal to the Circuit Court, and the Circuit Court cannot rightfully entertain such an appeal, and its judgment on such an appeal being unwarranted by law, is subject to revision in this court.

Charles J. M. Gwinn, Attorney-General, for the defendant in error.

The Acts of 1872, ch. 198, and 1878, ch. 502, are not unconstitutional, inoperative or void. They do not deprive a person, charged with violating any of their provisions, of the right to a jury trial. It is expressly provided by the 6th section of the Act of 1872, ch. 198, that, in all cases arising under the Act, there might be an appeal to the Circuit Court for Charles County, subject to the law governing other cases of appeals from the determinations of justices of the peace; and under the Code of Pub. Gen. Laws, Art. 5, sec. 50, the appellant had a right to appeal to the Circuit Court for Charles County, and in such court might have obtained, if he had seen proper to do so, the benefit of a jury trial.

It was not necessary that the appellant should have been arrested upon a warrant issued by a justice of the peace of Charles County, because the Act of 1872, ch. 198, sec. 5, authorized the arrest of a person offending against the provisions of the Act without a warrant. He could have been arrested without a warrant, when found committing the offense, even if the Act of 1872, ch. 198, had made no such provision. Derecourt v. Corbishley, 5 El. & Bl. 188.

Charles J. M. Gwinn, Attorney-General, for the defendant in error.

Charles J. M. Gwinn, Attorney-General, for the defendant in error.

The appellant could have obtained, if he had so pleased, a copy of the information upon which the proceedings in the case were grounded. The record does not show that he made application for a copy of such paper, and that it was refused to him. The record, therefore, does not show any infringement of the rights secured to the appellee by the Bill of Rights, Art. 21.

The appellant did not demand a trial by jury, but submitted to a trial before the Circuit Court for Charles County, upon his appeal to that court. He therefore waived his right to trial by jury, and submitted his case to the court.

It appears by the judgment of the Circuit Court for Charles County, given in this case, that the particular locality in which the offense charged was committed, was Port Tobacco creek, one of the tributaries of the Potomac river, between the points named in the Act of 1878, ch. 502, sec. 1, and within the limits of Charles County.

As it is alleged in the affidavit, on which the plaintiff in error was held for trial, that he was not a citizen of Charles County, and as it is not shown in the record that he was a citizen of any other county or municipal division of this State, or of Virginia; and as the offense appears to have been committed within the limits of Charles County, neither the jurisdiction of the justice, nor the jurisdiction or judgment of the Circuit Court for Charles County can be impeached. It must be intended, if need be, that the appellee was not a citizen of Virginia or of Maryland, and that the justice and Circuit Court for Charles County had respectively jurisdiction of the offense; for it clearly appears, from the tenth Article of the...