State v. Insley

• Decision Date: 23 June 1885
• Citation: 20 A. 1031,64 Md. 28
• Parties: STATE v. INSLEY. [1]
• Court: Maryland Court of Appeals

20 A. 1031

64 Md. 28

STATE v. INSLEY. ^[1]

Court of Appeals of Maryland

June 23, 1885

Appeal as upon writ of error, from circuit court, Anne Arundel county.

Argued before ALVEY, C.J., and YELLOTT, STONE, MILLER, IRVING RITCHIE, and BRYAN, JJ.

Charles B. Roberts, Atty. Gen., for the State.

Bradley S. Johnson and Bradley T. Johnson, for appellee.

STONE J.

The traverser, Insley, was indicted in the circuit court for Anne Arundel county, for carrying oysters in a vessel over the waters of the state of Maryland, and within the jurisdiction of the circuit court for Anne Arundel county, without having first obtained a license so to do from the state of Maryland. He was indicted under the act of the general assembly of 1884, c. 518. To this indictment the traverser entered a general demurrer, and, the court below having given judgment on the demurrer in favor of the traverser, the state has appealed to this court. The act of 1884, c. 518, under which the traverser was indicted, applies exclusively to oysters caught in the waters of this state. It has no application whatever to oysters caught without the waters of the state. Oysters caught in other waters may be transported over the waters of this state, without any infraction of the act of 1884, c. 518. The offense which that act designed and intended to create was the carrying without license "of oysters taken in the waters of this state." But the indictment in this case no where charges that the oysters carried over the waters of this state, by the traverser, were "taken in the waters of this state." This latter averment is absolutely necessary, in order to constitute any offense whatever against our act of assembly, and, being omitted in the indictment, it follows that it is fatally defective, and the judgment must be affirmed. Several constitutional questions arising under the act of 1884, c 518, have been argued before us with great zeal and ability. It has been insisted that the tax imposed by section 6 of the act of 1884 is a "tonnage tax" imposed by this state without the consent of congress, and therefore contrary to article 1,§ 10, subsec. 2, of the constitution of the United States, which provides that "no state shall, without the consent of congress, lay any duty of tonnage." It is also insisted further, that, in making it a misdemeanor to carry oysters without license from the state, the state law in fact imposes a regulation on commerce in addition to that imposed by congress, and is therefore void. These and other important and...