Windsor v. State

• Citation: 64 A. 288,103 Md. 611
• Parties: WINDSOR v. STATE.
• Decision Date: 15 June 1906
• Court: Court of Appeals of Maryland

64 A. 288

103 Md. 611

WINDSOR v. STATE.

Court of Appeals of Maryland

June 15, 1906

Appeal from Criminal Court of Baltimore.

Thomas A. Windsor was convicted of unlawfully having in his possession oysters containing more than 5 per cent. of shells and oysters less than 2 1/2 inches from hinge to mouth, and he appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, SCHMUCKER PEARCE, JONES, and BURKE, JJ.

George T. Mister, for appellant.

Eugene O'Dunne, for the State.

PEARCE J.

The appellant was indicted in the criminal court of Baltimore City under section 8 of article 72 of the Code of Public General Laws, for unlawfully having in his possession oysters which contained more than 5 per cent. of shells, and oysters less than 2 1/2 inches from hinge to mouth. This section provides that "any person who shall have oysters in his possession which contain more than 5 per cent. of shells, and oysters less than 2 1/2 inches from hinge to mouth, which for the purpose of this article are declared to be unmerchantable oysters, shall be guilty of a misdemeanor; *** and any person violating the provisions of this section shall be subject to the penalties and tines as provided in section 10 of this article in precisely the same manner as if he were a captain of a boat." The appellant filed a special plea, alleging "that the oysters for the possession of which he has been indicted in these proceedings formed part of a cargo of oysters on board of a schooner of which he was master, and the oysters so constituting the said cargo were not taken from their natural oyster bed or bar, but were plants taken from planted oyster beds belonging to private owner or owners for whom the same were received on board and conveyed to the port of Baltimore." The state demurred to this plea and, the demurrer being sustained by the court, a plea of non cul. was filed, and the case was submitted to the court without a jury, upon an agreed statement of facts, as follows: "It is admitted by the attorneys for the state and traverser, respectively, that the oysters the traverser is charged with having in his possession in the indictment in this case were inspected by a state inspector by culling two tubs therefrom, containing about three bushels of oysters and that the said oysters so culled contained more than 5 per cent. of shells, and oysters less than 2 1/2 inches, measuring from hinge to mouth of said oysters, and that said oysters as aforesaid were so in the possession of Thomas A. Windsor in said Baltimore City. It is also admitted that the traverser would have testified that he is 33 years of age, and resides at Mt. Vernon, in the state of Maryland; that the oysters which he is charged with having in his possession in the indictment in this case were planted oysters taken from private beds in the Wicomico River in said state of Maryland, and were not taken from any natural bed or bar; that at the time said oysters were in his possession they were aboard the schooner Charles Butler, of which vessel he was master, and that he saw the oysters as they were brought aboard his said vessel. Which the attorney for the state hereby admits would be the testimony of the traverser as fully as if given in open court, and waives his right of cross-examination, reserving only the right to object thereto on the ground of irrelevancy. But the state did not interpose said objection under the right so reserved." The court found the traverser guilty and imposed the fine provided by law, and he has appealed from that judgment.

The only question presented under the demurrer or on the agreed statement of facts is whether the facts alleged in the special plea constitute a defense to the indictment. Section 46 of article 72 of the Code of Public General Laws, tit. "Oysters," gives to the owner of any land bordering upon any of the waters of this state the power to locate and appropriate in any of said waters adjoining his lands, one lot of five acres, not being a natural bed or bar of oysters, "for the purpose of protecting, preserving, depositing, edding, or sowing oysters or other shell fish thereon"; and if such landowner fails to make such location or appropriation, within 30 days after notice by any male citizen of this state, of full age, of his intention to make such location, then such male citizen make make such location or appropriation for himself. Sections 46 and 48 of the same article provide penalties for taking such planted oysters without authority from the owner, when said lots are marked or designated and the description thereof is recorded, as required by law, and for removing or injuring said marks or designations. While the privilege thus granted to the individual confers no title to the land so located under the water, oysters so bedded or deposited thereon become the private property of the individual, subject only to divestiture of title after his death, if not removed from said location by his executor or administrator within three years from such death, and the special plea in this case is based upon two contentions: First, that the prohibition against having in possession oysters containing more than 5 per cent. of shells and oysters less than 2 1/2 inches from hinge to mouth is contained in, and is the essentinal provision of, the culling feature of the statute, and that none of the sections 7 to 14 relating to culling, have any application to oysters planted on private beds, and are applicable only to natural beds or bars reserved by the state for the common right of fishery; and, second, that even if held that the Legislature designed this provision to apply to planted oysters, such restriction of the right to deal with private property would be in conflict with the fourteenth amendment to the Constitution of the United States, which declares that no state shall deprive any person of life, liberty, or property without due process of law, unless it clearly appears that the public safety, health, or morals would be affected by the prohibited act. Section 8 of article 72, under which this indictment was found, was under consideration in this court in Tyler v. State, 93 Md. 309, 48 A. 840, 52 L. R. A. 100, where to an indictment like the present one a special plea was filed asserting as a defense that the oysters in question had been taken from the waters of the state of Virginia by citizens of that state who had complied with its laws as to the taking of oysters in its waters, and had there been sold to the traverser. In that case the court, following the reasoning in Dickhaut v. State, 85 Md. 451, 37 A. 21, 36 L. R. A. 765, 60 Am. St. Rep. 332, came to the conclusion that that section was intended to apply only to oysters taken in Maryland waters, saying: "The law does not in express terms apply to oysters taken from waters outside the state. In that respect it differs from Acts 1898, p. 708, c. 206, passed for the better protection of birds and game animals, which was upheld by us in Stevens v. State, 89 Md. 669, 43 A. 929, and which by its terms makes it unlawful to have in possession, or expose for sale, during the closed season, birds or game animals shot or killed in this state, or in any other state, territory, or country."

The special plea in this case, however, does not deny that the oysters in question were taken from the waters of this state and they must therefore be presumed to have been so taken. The agreed statement of facts,...