Willing v. Bozman

• Decision Date: 19 June 1879
• Parties: JAMES R. WILLING and Affra D. Mezick
• Court: Maryland Court of Appeals

52 Md. 44

JAMES R. WILLING and Affra D. Mezick v. THOMAS BOZMAN.

Court of Appeals of Maryland.

June 19, 1879

Appeal from the Circuit Court for Worcester County.

This suit, the nature of which is set forth in the opinion of the court, was brought to the September Term, 1877, of Wicomico County, by the appellee against the appellants. The plaintiff on the 26th of November, 1877, declared with three counts in his narr., and on the 9th of January, 1878, the defendants pleaded the general issue and three special pleas. On the same day, on suggestion of the plaintiff, the court directed the case to be removed to Worcester County. On the 22nd of May, 1878, the plaintiff joined issue on the defendants' first plea and demurred to their second and third pleas. No reply was made to the fourth plea. On the same day, the plaintiff obtained leave to withdraw and amend his narr., as to the first count, and filed his amendednarr. Thereupon the defendants jointly filed amended pleas, one, two, and three. The first plea presented the general issue; the other pleas were special. The plaintiff then withdrew and refiled the afore-mentioned replication and demurrer. On the 23rd of May, 1878, the defendants severally obtained leave to file an additional plea, which was accordingly done. "Thereupon demurrer was entered short upon the docket by consent." Whereupon the court decided, "it appears to the court here that the said pleas of the said defendants, and each of them above pleaded, and the matters therein contained, are not sufficient in law to preclude the said plaintiff," etc. On the same day a jury was sworn and verdict rendered for the plaintiff for $250. The plaintiff offered two prayers, the first of which was conceded, and the other defining the measure of damages was granted. The defendants offered one prayer which was granted. On the 28th of May, a motion for a new trial was made by the defendants, and on the 8th of June following was overruled, and judgment entered on the verdict. The defendants appealed.

The cause was argued before BARTOL, C. J., BOWIE, MILLER and ROBINSON, JJ., for the appellants, and submitted for the appellee.

John H Handy, for the appellants.

Was the appellant, Willing, justified by law in seizing the boat or canoe under the circumstances detailed in the special pleas?

The solution of this question depends upon several propositions. Was the appellee violating the oyster law provided for the waters of Wicomico County? He was. The Act of 1872, ch. 241 sec. 1, provides--"That it shall not be lawful for any person or persons to employ any canoe, boat or vessel in catching or taking oysters with scoop, scrape, drag or dredge, or any similar instrument, within the waters of Wicomico County," etc. The appellee, at the time he was discovered by the appellant, was employing the boat, whose seizure is the gravamen of this suit, in violating this law, in catching oysters in those waters with the forbidden instruments. The boat, its tackle and apparel, and all things on board at the time of the violation, was forfeited by the act of "violating" the above section, and, in addition, he was liable to be fined. Act of 1872, ch. 241, sec. 3.

Now the demurrers admit that Bozman was violating this law, and the third section of the Act proprio vigore, forfeits the boat employed in so breaking the law.

The boat, etc., by the fourth and seventh sections, is required to be seized and delivered over to the authorities of the county.

Had Willing, acting as deputy commander of the police boat "Carrie Franklin," the right to make seizure super visum?

He had no warrant from a justice, and, indeed, the Act of 1872, ch 241, makes no provision for the issuing such a warrant to the commanders of the fishery force. See secs. 4, 7.

No information on oath had been made to the commander of the Oyster Police Force or deputy commander Willing, but the latter acted upon his view of the offense committed. Was he justified in so doing?

When the Act of 1872, ch. 241, was passed, the Act of 1870, ch 364, was the general Oyster Law of the State. By that Act the Oyster Police Force was created.

From the whole scope and tenor of this Act, it is clear that the Oyster Police Force was intended to act independently of the justices in making arrests and seizures; and whilst they are expressly authorized and required to make such arrests and seizures, super visum, they are nowhere required to execute any warrant issued to them, nor is any law found for issuing such warrant.

And because it is their special duty for which they are created and paid to make such arrests and seizures, section 17 provides that they shall receive no part of the proceeds of the forfeited property.

The commanding officer acts under the sanction of his official oath, and his subordinates, under rules and regulations made by him, with the concurrence of the Board of Commissioners of the State Oyster Force. Secs. 40, 43.

No information on oath was necessary or provided for in any case to authorize the commander and his sub-commanders to act.

If there was evidence to satisfy them that the person had violated the law, they were empowered to arrest, and seize the boat, just the same as if they saw the act itself.

If however some persons not belonging to the Oyster Police Force reported to the commander that a violation had taken place some time before, the commander would have sent him to a justice to get out a warrant, on oath, under sec. 13, directed to the sheriff, constable, owner or master of a vessel, etc. Such was certainly the original conception of the duties, powers and functions of the Oyster Police Force.

This being the state of the law, the Act of 1872, ch. 241, was passed. Justices were not authorized to issue warrants to them; but sec. 7 provides that information on oath may be lodged with the commander, and he being an executive officer, (unlike the justice who must issue his warrant to his executive officers,) is required to proceed, on such sworn information, to arrest and seize.

Prior to that Act and section, he was only bound to act super visum, either of the act itself or of such evidence as authorized him to infer it.

Did this Act abrogate any of the powers he already had as a policeman, specially created to enforce the Oyster law of the State? Was he not still bound to arrest and seize on the view?

The Act of 1872, ch. 241, clearly indicates that he was to guard the waters of Wicomico, and enforce the law; and that in addition to his duties under the Act of 1870, ch. 364, he could be compelled to listen to informations on oath and hunt up the offender and pursue him and his boat beyond the waters of the county, which the constable, sheriff and military officer, under the justice's warrant, could not do.

The Act of 1872, does not repeal the Act of 1870, except so far as repugnant; they are in pari materia, and are to be read and construed as parts of the same article. It is a provision within the scope, powers, purposes and intention of the law creating the Oyster Police Force. It was passed with a full knowledge of the existing law, and from sec. 7 manifestly with reference to its provisions.

It was then the intention of that Act that in addition to the powers given to the Police Force by the Act of 1870, it should be compelled to act on sworn information, in so far as Wicomico County was concerned.

Unless, then, some other and subsequent legislation has affected the question, it would seem the appellant Willing, had not only the right, but it was his duty to arrest the offender and seize the boat employed, super visum.

Now what change does the Act of 1874, ch. 181, make? Though it changes much of the law with regard to oysters, and the punishment for violating the Oyster Law, it does not seem materially to change the general powers of the Oyster Police Force. It takes away none of its duties or powers, but adds to the force itself, and to its powers and duties.

The Act of 1874, ch. 181, does not, in terms, repeal the Act of 1872, ch. 241. On the other hand, it expressly states in the title and repealing clause what it does repeal, viz. the Acts of 1870, ch. 364, and 1872, ch. 167. The Act of 1872 was not overlooked. One of them was repealed.

If, then, the Act of 1872, ch. 241, is repealed by the Act of 1874, it is by implication. To work such a repeal the repugnancy must be so great that the two Acts cannot stand together. Cumberland v. Magruder, 34 Md. 381; State v. R. R. Co. 44 Md. 131.

It will not be held that a prior law is repealed by a subsequent one, containing no express words to that effect, unless the implication should leave no reasonable doubt that such was the intention of the Legislature. The necessary implication to repeal an Act must be as certain as an express repeal. 13 U.S. Dig. 595, Plac. 34, cites United States v. Twenty-five Cases of Cloths, Crabbe, 356.

On the other hand, all Acts in pari materia are to be taken together as if one law. McCartee v. Orphans Asylum Society, 9 Cow. 506-507.

There is no such repugnancy or inconsistency between the two Acts, as the appellee supposes. It is not impossible for them both to stand. It is purely a territorial question. The inconsistency between the Acts of 1870 and 1872 was as great as that between the Acts of 1872 and 1874.

The Act of 1874 must be read as subject to any local law on the subject, found on the statute books; and so read, the two form parts of one system, and may easily stand together, and be enforced by the same police.

It is true that the Act of 1874 was intended as a revision and substitute for the Act of 1870, and would probably have repealed it by implication had the repeal not been express but it was not a revision of the Act...