Board of Shellfish Commissioners v. Mansfield

Urner, J., delivered the opinion of the Court. The principal questions involved in this appeal have been decided in the case of Cox v. Revelle, ante p. 579. This proceeding originated in a petition filed under the Act of 1914, Chapter 265, in the Circuit Court for Talbot County, praying that certain oyster ground in Miles River, which had been previously leased to a private individual upon the theory that it was barren bottom, might be judicially determined to be a natural bed or bar, as the result of which find ⁶³² ing it would be subject to acquisition for public use by condemnation as provided in the statute. The lessee, though summoned, did not appear and make' defense, but the Board of Shellfish Commissioners filed an answer to the petition, disputing the allegations of fact and denying the constitutionality of the act upon which the proceeding was based.

A demurrer to the averments of the answer which questioned the validity of the statute was sustained, and upon the issue of fact a judgment on verdict was rendered declaring the leased ground to be a natural oyster bed. The Shellfish Commissioners have appealed. In addition to the questions raised on demurrer there are several exceptions to the exclusion of evidence to be reviewed. The first objection to the Act, as stated in the answer, is that its provisions are so defective and contradictory as to make it incapable of enforcement.

In support of this position the appellants refer to the provision for the ascertainment of-the outlines of natural oyster bars by testimony taken in Court. It is said that while such evidence may prove whether a certain location represented on a chart is included within a natural oyster area, it is impracticable by this means to determine the exact limits of the bar. The Act, however, does not depend upon the theory that the outlines of the submerged oyster beds are capable of being ascertained with precision. By section 90 it was provided that in the original survey to be made by the Shellfish Commissioners they should use their judgment “liberally in favor of the natural beds and bars, and allow a reasonable margin of the barren bottoms rather than encroach on a natural bed or bar,” and in the same section there is a further provision that “all natural beds or bars shall be surrounded by neutral zones 200 yards wide in the Chesapeake Bay and Tangier Sound, and 50 yards wide elsewhere,” and that these zones shall be leased under the Act or appropriated to private use.

The Legislature evidently recognized the difficulty of defining with exactness the boundaries of the bars or beds which were intended to be excluded from the leasing system established ⁶³³ "by the State. We see no reason to hold that a substantially .accurate location of oyster fisheries in the manner authorized by the Act is not feasible, and we are certainly unwilling to declare the statute invalid on that ground. There are other provisions which are said to be open to the objection we have just noticed, but they have no relation to the case before us, and even if we discovered any force in the contention, it could not now be appropriately made the subject of decision. It is next asserted that the Act contravenes Article 3, section 40 of the State Constitution in that it contemplates the talcing of private property for a use "not public, and without just compensation being first paid or tendered.

This question has been considered, and determined adversely to the view here urged, in the case of Cox v. Revelle, supra. Another contention is that the statute authorizes the talcing •of property without due process of law, and is therefore in conflict with the 14th Amendment of the Constitution of the United States and Article 23 of the Maryland Declaration of Rights. This objection is not sought to be applied to the section upon which this proceeding is founded, but to separate and distinct provisions of the law, which are not involved in the present case, and hence need not be discussed. The further point is made that the right of trial by jury as to the issue of fact in cases of this nature is not protected by the Act, although the Constitution of the State, Article 15, section 6, declares that the right to such a trial in civil proceédings in the several Courts of law, where the amount "in controversy exceeds the sum of five dollars, shall be inviolably preserved.

The statute provides that upon