Wharton v. Wise

• Decision Date: 23 April 1894
• Docket Number: No. 1,054,1,054
• Citation: 14 S.Ct. 783,38 L.Ed. 669,153 U.S. 155
• Parties: WHARTON v. WISE, Sheriff
• Court: U.S. Supreme Court

153 U.S. 155

14 S.Ct. 783

38 L.Ed. 669

WHARTON

v WISE, Sheriff.

No. 1,054.

April 23, 1894.

This case comes before us on appeal from an order of the circuit court of the United States for the eastern district of Virginia, dismissing a writ of habeas corpus, sued out for the discharge of the appellant, a citizen of Maryland, from a judgment of imprisonment until a fine should be paid, imposed upon him by the county court of Accomack county, in that state, upon a conviction of violating a law of Virginia in taking oysters, contrary to its prohibitions, from Pocomoke sound, within her limits. An act of that commonwealth, approved in February, 1892, provides that if any person, other than a resident of the state, 'take or catch oysters or other shellfish in any of the waters of the state, he shall, upon conviction thereof, be fined five hundred dollars.' Acts of the Assembly of Virginia, 1891-92, c. 363, § 10, p. 603.

At March term, 1893, of the county court of Accomack county, the appellant was indicted by the grand jury of the county for that, being a nonresident of Virginia, he did unlawfully take and catch oysters in the waters of the state, and within the jurisdiction of the county, to wit, on Ledge Rock in Pocomoke sound, against the peace and dignity of the commonwealth. At the following April term he appeared in court, and filed a special plea to its jurisdiction, alleging that at the time the offense charged was committed he was a citizen of Maryland, residing in Somerset county, of that state, and that the act of the assembly of Virginia under which the indictment was found had not been adopted or ratified by the general assembly of Maryland; that by the compact of 1785 between those states, which had never been repealed or annulled, but was still in effect, and operative, the court had no jurisdiction to try the defendant for the alleged offense, Pocomoke sound, mentioned in the indictment, being a part of Pocomoke river mentioned in the compact. The commonwealth demurred to the plea, and the court sustained the demurrer, adjudging the plea to be insufficient. Thereupon the defendant, under the plea of not guilty, was tried and convicted, and was sentenced to pay a fine of $500, the sum prescribed by the statute for the offense, and the costs of the prosecution, and ordered to be committed to the jail of the county until the fine and costs were paid. Averring that he intended to apply to the circuit court for a writ of error, he moved the county court to be admitted to bail pending his appeal, but the motion was denied, on the grond that the law of the state did not provide for admitting a person to bail after conviction. He was thereupon taken to the jail by the sheriff of the county, and detained by him in default of payment of the fine and costs. He then applied to the circuit court of the United States for the eastern district of Virginia for a writ of habeas corpus to be directed to John H. Wise, the sheriff of the county of Accomack, by whom, under the judgment, he was imprisoned, requiring the officer to produce the petitioner before that court, with the authority for his detention, alleging that his imprisonment was unlawful on grounds which, as stated by counsel, were similar to those now urged for a reversal of the judgment before us, namely: That the compact of 1785 between the states of Virginia and Maryland was still a subsisting agreement, binding upon and enforceable by each of those states and the citizens thereof; that by its provisions the citizens of Maryland possess and are entitled to enjoy freely a right of fishery, including the right to take oysters, in common with the citizens of Virginia, in the Pocomoke river; that that river, as mentioned in the compact of 1785, embraces what is now commonly called Pocomoke sound, which is nothing but the mouth of Pocomoke river; that the law of Virginia, under which the petitioner was arrested, indicted, and convicted, was never adopted by the concurrent legislation of Maryland, and was therefore inoperative as against the citizens of that state, and that the conviction thereunder of the petitioner, who was a citizen of Maryland, was void. And on the further ground that, assuming the law of Virginia was not inoperative against citizens of Maryland, still, under the tenth section of the compact of 1785, the petitioner, as a citizen of that state, could not be lawfully tried in the courts of Virginia for the offense charged, but was to be tried in the courts of Maryland.

The writ was issued, directed to the sheriff of Accomack county, and made returnable before the circuit court of the United States for the eastern district of Virginia, at Norfolk, on the 11th of May, 1893, and was then adjourned for hearing in Richmond on the 1st of June following, at which time and place the case was fully heard. At the succeeding term the court rendered its decision, to the effect that the writ of habeas corpus be dismissed, and that the petitioner be remanded to the custody of the sheriff of Accomack county. From this judgment the petitioner appealed to this court.

John Prentiss Poe, Atty. Gen., Bradley T. Johnson, and Thos. S. Hodson, for appellant.

[Argument of Counsel from pages 158-162 intentionally omitted] R. Taylor Scott, Atty. Gen., James H. Fletcher, Jr., William A. Jones, and Waller R. Staples, for appellee.

Mr. Justice FIELD stated the case and delivered the opinion of the court.

The disposition of the appeal will require an examination of certain provisions of the compact between the states of Maryland and Virginia of 1785, as upon their interpretation and effect the controversy which has given rise to the present proceeding, and similar controversies between citizens of those states, and their respective rights to fish in the waters of Virginia for oysters, will be determined. The questions involved are of deep interest to both states, and they have been presented by distinguished counsel on their behalf with great ability.

Previous to June, 1784, great inconveniences were experienced by citizens of both Maryland and Virginia from the want of established and recognized regulations between those states respecting the jurisdiction and navigation of the river Potomac, which constituted a boundary between the two states for over 100 miles. In that month and year the general assembly of Virginia, reciting that such inconveniences resulted from want of some concerted regulations between the states, 'touching the jurisdiction and navigation of the river Potomac,' passed the following resolutions:

'Resolved, that George Mason, Edmund Randolph, James Madison, Jr., and Alexander Henderson, Esquires, be appointed commissioners, and that they, or any three of them, do meet such commissioners as may be appointed on the part of Maryland, and in concert with them frame such liberal and equitable regulations concerning the said river as may be mutually advantageous to the two states, and that they make report thereof to the general assembly.

'Resolved, that the executive be requested to notify the above appointment, with the object of it, to the state of Maryland, and desire its concurrence in the proposition.'

The resolutions were communicated to the executive of Maryland, and by him laid before the legislature of that state, which responded to the invitation by a resolution, passed on the 18th of January, 1785, appointing commissioners on her part to meet those of Virginia, but with powers somewhat enlarged. The resolution, as adopted by the senate of Maryland, declared that Thomas Johnson, Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer (selected by the house of representatives two days before) should be commissioners for the state of Maryland to meet the commissioners appointed by the commonwealth of Virginia, 'for the purpose of settling the navigation and jurisdiction over that part of the bay of Chesapeake which lies within the limits of Virginia, and over the rivers Potomac and Pocomoke;' and that the commissioners, or any two of them, should have full power, on behalf of Maryland, 'to adjudge and settle the jurisdiction to be exercised by the said states, respectively, over the waters and navigation of the same, the proceedings to be laid before the general assembly of the state to be ratified,' etc.

The commissioners met at Mt. Vernon in the following year, and on the 28th of March a compact between the two states was mutually agreed upon by them.

In its first clause Virginia disclaimed all right to impose any toll, duty, or charge, prohibition or restraint on any vessel sailing through the capes of Chesapeake bay to the state of Maryland, or from that state through the capes outward bound, and agreed that the waters of Chesapeake bay and Pocomoke river within the limits of Virginia should be forever considered as a common highway for the use and navigation of any vessels belonging to the state of Maryland or any of its citizens, or for carrying on any commerce to or from that state or with any of its citizens, and that any such vessel inward or outward bound might enter any of the rivers within the commonwealth of Virginia as a harbor, or for safety against an enemy, without the payment of port duties or any other charge; and that the waters of Chesapeake bay and Pocomoke river should be free for the navigation of vessels from one part of the state of Maryland to another.

In the second clause the state of Maryland agreed that any vessel belonging to Virginia or any of its citizens, or carrying on commerce to or from that state, or with any of its citizens, might freely enter its rivers as a harbor, or for safety against an enemy, without the payment of any port duty or other charge.

In the third clause it was provided that war vessels, the property of either state, should not be subject to the payment of any port duty or other charge.

The fourth and fifth clauses related to commerce between citizens of the two...