State v. Applegarth

• Decision Date: 16 May 1895
• Citation: 31 A. 961,81 Md. 293
• Parties: STATE v. APPLEGARTH ET AL.
• Court: Maryland Court of Appeals

31 A. 961

81 Md. 293

STATE v. APPLEGARTH ET AL.

Court of Appeals of Maryland

May 16, 1895

Appeal from criminal court of Baltimore city.

Charles G. Applegarth and Henry B. Pearson were indicted for engaging in the business of packing and canning oysters without a license, and from an order sustaining a demurrer to the indictment the state appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, McSHERRY, BRISCOE, PAGE and BOYD, JJ.

Atty Gen. Poe and Charles G. Kerr, for the State.

E. H Gans and B. H. Haman, for appellees.

BOYD J.

The appellees were indicted for engaging in the business of packing and canning, for sale and transportation, oysters taken in the waters of this state without obtaining from the state a license therefor. A demurrer to the indictment was interposed, which was sustained, pro forma, by the court below. The prosecution is based on sections 66, 67, art. 72 Code Pub. Gen. Laws, as amended by chapter 380 of the Laws of 1894. It is contended on behalf of the appellees that these sections are (1) in conflict with the constitution of this state, because the license provided for is an arbitrary and unequal tax, contrary to the fifteenth article of the bill of rights, and not a lawful exercise of the police power of the state; and (2) that they are a regulation of interstate commerce, in violation of the constitution of the United States. We will consider the case in that order.

There has been on our statute books for many years legislation having in view the protection and preservation of the oysters of this state. Since 1860 a separate article has been devoted to this subject in the several Codes of Public General Laws of Maryland. For some years past the legislatures have generally been called upon to devote more or less time to this important subject, and, at the session of 1894, article 72, tit. "Oysters," of the Code, was repealed, and re-enacted with amendments. Section 66 of that article, as thus amended, requires every person, firm, or corporation engaged in the business of packing and canning oysters for sale or transportation to take out, on or before the 1st day of September in each year, a license to engage in such business by application to the clerk of the circuit court of the county in which the place of business of such applicant is situated, or to the clerk of the court of common pleas, if in Baltimore city. The applicant is required to state the number of bushels of oysters which he proposes to pack during the succeeding eight months, and to pay at the time of issuing the license the sum of $25 for such license, and in addition thereto the sum of $1 per 1,000 for every 1,000 bushels over 10,000 so estimated in his application as the total number to be packed during the season. He is also required to make a return, under oath, within 30 days after the 25th day of April in each year (that being the end of the season in which oysters can be caught), to the clerk from whom he obtained the license, of the number of bushels packed or canned by him during the season, and to pay the clerk the further license money of $1 per 1,000 for each 1,000 bushels packed or canned by him over and above the estimate in his application. This report must be forwarded to the comptroller of the state, who is authorized to return any overpayment, in case he is satisfied that the total number of bushels packed by said person was less than the number stated in his application. This section further provides that all moneys thus received from said licenses shall be paid over and accounted for by the clerks to the comptroller to be placed by him to the credit of the oyster fund, as provided by section 29 of said article. The latter section provides for the payment of moneys received from dredging licenses and other sources therein named into the treasury, to be "placed to the credit of a fund which shall be called 'The Oyster Fund,' and the same shall be kept separate and distinct from other funds in the treasury, and shall only be drawn upon for the purpose of maintaining sufficient and proper police regulations for the protection of fish and oysters in Maryland waters, and in the payment of the officers and men and keeping in repair and supplying the necessary means of sailing the boats and vessels of the state fishery force." Section 67 fixes penalties for the violation of section 66, and authorizes any person to pay the sum of $300 per annum for a license, without being required to report the number of bushels handled by him, or otherwise disclose the operation of his business.

The above are the material parts of the sections of this law directly involved in this case. An examination of the other provisions of this article will show that the legislature has required those engaged in catching and taking oysters, for sale, out of the waters of Maryland, with rakes, tongs, scoops, dredges, and other instruments, to take out licenses, and also those engaged in selling oysters on commission. It will also be seen that great care has been taken to require persons connected with the oyster business to deal fairly with the state, and large outlays of money are provided for, to be paid out of the oyster fund, for the purpose of regulating, preserving, and protecting this important and valuable industry of our state. In considering this question, it is well to bear in mind that the oyster beds are the property of the state (McCready v. Virginia, 94 U.S. 391; Bradshaw v. Lankford, 73 Md. 431, 21 A. 66), and that the legislature, representing the sovereign power of the state, can pass laws determining how oysters can be taken, can prohibit them from being taken at all, or make such other reasonable regulations concerning them as it may deem best and proper for the interests of the state at large. If the restrictions imposed upon those engaged in the business of taking oysters be withdrawn, the oyster beds might be destroyed, or at least seriously injured. It has therefore been deemed proper by the legislature to provide a "state fishery force," at large expense, to enforce the laws passed for their preservation and protection. If the income from licenses granted under laws existing prior to 1894 proved insufficient to meet the demands on the state, the legislature had the undoubted right to provide for the deficiency, provided, of course, it kept within constitutional bounds. If there be a class of persons engaged in business in this state who are largely dependent upon the oysters in the waters of this state for the conduct of their business, but who had heretofore not been required to have and pay for licenses for the privilege of engaging in such occupation, we can see no just or equitable ground to restrain the legislature from requiring them to do so, unless prohibited by the organic law of this state or of the United States. Such legislation on this particular subject might well be justified on the ground that the state, as owner of the oysters, is entitled to a reasonable and fair compensation for them; and it may not be deemed just or wise to impose all the burden on those who oftentimes undergo great hardship and suffering in catching them, and therefore those engaged in packing and canning them are called upon to contribute their share of the compensation. If the state is not to profit by sales of its property, it should at least be protected from any loss in caring for it, and all those engaged in the oyster business might justly be required to contribute their portion of the cost and expense of preserving them. When we remember that oysters in the waters of the state belong to it, and see, from an examination of the article of the Code in which the sections now before us are embraced, the great expense incurred by the state in fostering and encouraging this industry, and preserving the oysters, and that all the revenue derived from the licenses objected to in this case are required to be placed in the separate fund applicable to those purposes, we might perhaps content ourselves by declaring this law to be valid, on the ground that these license fees are imposed for the regulation of the oyster...