State v. Ruvido

• Decision Date: 20 September 1940
• Citation: 15 A.2d 293
• Court: Maine Supreme Court
• Parties: STATE v. RUVIDO.

15 A.2d 293

STATE

v. RUVIDO.

Supreme Judicial Court of Maine.

Sept. 20, 1940.

On Agreed Statement from Superior Court, Knox County.

Archie Ruvido was convicted in the Municipal Court for a violation of the statute prohibiting the taking of fish for commercial purposes by a nonresident within the territorial waters of the state between the 1st of April and the 1st of November, and he appealed to the Superior Court. On report to the Supreme Judicial Court on an agreed statement of facts.

Judgment for the state.

Argued before BARNES, C. J., and STURGIS, THAXTER, HUDSON, MANSER, and WORSTER, JJ.

Jerome C. Burrows, Co. Atty, of Rockland, for the State.

Philip G. Willard, of Portland, for respondent.

THAXTER, Justice.

The respondent, a resident of Boston, in the Commonwealth of Massachusetts, was the captain of a fishing schooner and was charged in a complaint issued from the Municipal Court of the City of Rockland with a violation of Pub.Laws 1937, Ch. 32, the essential part of which reads as follows: "The taking or fishing for by a non-resident of the state of Maine, for commercial purposes, any kind of ground fish, by hook, line, trawl or in any other manner, within the territorial waters of the state between the 1st day of April and the 1st day of November in each year for a period of 5 years, is hereby prohibited."

The offense is set forth in the complaint as follows: "Charles W. Carver of Rockland complains on August 12th, 1939, that Archie Ruvido of Boston, Massachusetts on a certain day between the First day of April and the First day of November, A. D. 1939, to wit, on the 12th day of August, A. D. 1939, in the waters of Penobscot Bay near Seal Island, in the County of Knox aforesaid, did fish for and take for commercial purposes ground fish by means of beam trawler, said waters of Penobscot Bay near Seal Island being within the territorial waters of the State of Maine against the peace of the State and contrary to the form of Statute in such case made and provided."

The respondent was arraigned in the Municipal Court, pleaded not guilty, after a hearing was found guilty and sentenced, and then filed an appeal which was duly entered in the Superior Court for the County of Knox. The case is reported to this court on an agreed statement of fact.

It is admitted that the respondent, being a non-resident, did on the 12th day of August, 1939, fish for and take for commercial purposes ground fish by means of a beam trawler at a point off the coast of Maine, said point being between one and three miles north northeast of an island known as Seal Island, which point is marked on a chart of "Penobscot Bay and Approaches," which is made a part of the agreed statement.

' The primary question reserved for the consideration of this court is whether the offense was committed within the territorial waters of the State of Maine over which the state has general jurisdiction and sovereignty. Also this court is asked to determine whether the state has under the provisions of the statute here involved assumed jurisdiction and sovereignty over such waters; also whether the statute is not void or inoperative by reason of the uncertainty of its provisions.

If the court shall determine these issues in favor of the state, an entry is to be made "Judgment for the State," otherwise the entry is to be "Complaint Dismissed."

From earliest times it has been conceded that the sovereignty of nations bordering on the sea does not stop at the shore, but that for some distance at least it extends over and under the ocean. Such control has been regarded as necessary for the security of those living on the coast and as proper to assure the full enjoyment by them of the land which they inhabit. On the American Revolution do minion over these waters became vested in the several states, and there it still remains except in so far as they may by the Constitution have surrendered such control to the federal government. 1 Moore, A Digest of International Law, 702, H.R.Doc. No. 551, 56-Cong, 2d Sess. But the jurisdiction of the United States courts over these waters in admiralty and maritime causes, and the powers given to Congress under the commerce clause of the Constitution, still leave the authority of the several states substantially unimpaired. The State of Maine, therefore, still is sovereign over the seas which wash its coast and may if it sees fit deny to non-residents the right to fish in these waters. Gould, Waters (1883) 331; McCready v. Commonwealth of Virginia, 94 U.S. 391, 24 L.Ed. 248; Corfield v. Coryell, Fed.Cas. No. 3230, 4 Wash.C.C. 371; Bennett v. Boggs, Fed.Cas. No. 1319, 1 Baldw.C.C. 60; Haney v. Compton, 36 N.J.L. 507. See Dunham v. Lamphere, 3 Gray, Mass, 268, 275, 276.

The problem, however, which we have to settle is the extent of the waters over which this state may exercise its authority.

Grotius laid down the doctrine that territorial rights extended over as much of the sea as could be defended from the shore. Grotius, The Law of War and Peace, Book II, Chap. 3, Secs. 13-14. Other tests have been suggested but this general principle has remained dominant through the centuries. In 1703 Bynkershoek fixed the limit as a marine league or three miles from the coast, a distance which was then the range of cannon shot. 1 Moore, supra, at 699. In spite of the lengthening range of artillery this has remained the test generally applied to the present day.

Our shore in the State of Maine is fringed with thousands of islands, many of which are large and the homes of varied industries, others so wild and inaccessible that they seldom feel the tread of human feet. All are, however, an integral part of our state and to a greater or less extent, as bulwarks against the sea, form our harbors and the calm reaches through which commerce flows up and down our shore. It is, therefore, important for us to know that in determining the extent of our control over the water, these islands are regarded as natural appendages of the mainland and as a part of our coast as that word is used in the books. Wheaton, Elements of International Law (Edited by George Grafton Wilson 1936, Part II, Sec. 178); The Anna, 5 C.Rob.Adm.Rep. 385. See In re Marincovich, 48 Cal.App. 474, 192 P. 156, which holds that the sovereignty of the State of California extends for a distance of three miles around Catalina Island, which is twenty-one miles from the mainland.

To what extent the jurisdiction of a state extends to bays enclosed by headlands within its borders is still an open question. Wheaton, supra, Sec. 188, expresses the rule as follows: "Thus, in respect to those portions of the sea which form the ports, harbors, bays, and mouths of rivers of any State where the tide ebbs and flows, its exclusive right of property, as well as sovereignty, in these waters, may well be maintained, consistently with both the reasons above mentioned, as applicable to the sea in general. The State possessing the adjacent territory, by which these waters are partially surrounded and inclosed, has that physical power of constantly acting upon them, and, at the same time, of excluding, at its pleasure, the action of any other State or person, which, as we have already seen, constitutes possession. These waters cannot be considered as having been intended by the Creator for the common use of all mankind, any more than the adjacent land, which has already been appropriated by a...