Bruce v. Dir., Chesapeake Bay Aff.

Finan, J., delivered the opinion of the Court. ⁵⁸⁸ On March 9, 1970, this Court issued a per curiam order reversing that portion of the decree of the chancellor in the lower court dated August 26, 1970, wherein he declared §§ 322 and 700 (a), (c) and (i), of Article'66C of the Maryland Code (1970 Repl. Vol.) to be constitutional and dismissed the appellants’ bill of complaint. At that time we stated we would file an opinion setting forth the reasons for this reversal, which we now do. The question before this Court is the constitutionality of the residential requirements and territorial restrictions placed by the State on the licensing of commercial fishermen who engage in crabbing and oystering in the tidal waters of Maryland.

The appellants are residents of Somerset County and are members of the Tangier Sound Watermen’s Association. They are a part of that hardy breed of men who earn their livelihood by seasonally combing the oyster bars of the Chesapeake Bay and its estuaries and following the migration of the elusive crab. They were the complainants below in a bill in equity filed in Somerset County seeking a declaration 1 that Sections 322 and 700 of Article 66C restricting the taking and catching of crabs and oysters in Maryland are illegal, unconstitutional, and void because they violate the Fourteenth Amendment of the Constitution of the United States and of Article 23 of the Declaration of Rights of the Constitution of Maryland. Defendants in the bill, appellees in this Court, are the Director of the Department of Chesapeake Bay Affairs and the Chairman and members of the Commission of Chesapeake Bay Affairs (Commission).

They are charged with the powers and duties of enforcement of the challenged statutes and of licensing persons to take and catch crabs and oysters in Maryland. The bill sought injunc ⁵⁸⁹ tive relief against appellees because of the invalidity of the statutes in question. The only testimony was that introduced by the water-men through the persons of Oscar J. Smith, President of the Tangier Sound Watermen’s Association, a resident of Smith Island and a life-long waterman and licensed commercial crabber and oysterman, and that of Carlton Y. Dize, a member of the Maryland House of Delegates from Somerset County. The appellants in their brief presented the following statement of facts which was accepted by the Commission and which we set forth together with the statutes involved.

Crabbing “§ 322. Crabbers’ Licenses Any resident of Maryland desiring to take or catch crabs from the waters thereof for market, and each person working on any boat used in taking or catching of crabs for market, shall first obtain a numbered license through the clerk of the circuit court for the county in which he resides or from the clerk of the Court of Common Pleas, if he resides in Baltimore City, and shall pay the sum of $2, and in addition thereto twenty-five cents to the clerk of the court for issuing same, which license shall be good for the year of issuance only and shall entitle the person obtaining same to take or catch crabs by any of the methods now or hereafter authorized to be used, including scrape, nets, dip nets or trotline. Provided, that such license shall not authorize the taking or catching of crabs in any creek, cove, river, inlet, bay or sound within the limits of any county other than that wherein the license shall have been granted; provided that nothing in this section shall be so construed as to prevent the citizens of counties divided by a river from using such dividing river in common. All persons taking or catching crabs under ⁵⁹⁰ the provisions of this subheading shall exhibit their license for so doing when required by any officer of the Maryland marine police force, or other officers of the State.” Maryland Code (1970 Repl.

Vol.) Art. 66C. Crabs are found in marketable quantities in only 13 of the State’s 23 counties, namely Worcester, Somerset, Wicomico, Dorchester, Talbot, Queen Anne’s, Kent, Baltimore, Anne Arundel, Calvert, St. Mary’s, Charles and Prince George’s. The migration and movements of crabs and their erratic growth may cause them to be scarce or not to appear at all, or to be too small to harvest until late in the season. Crabs migrate from south to north up the Chesapeake Bay as the weather grows warmer, and this migration takes place annually.

Crabs can move very rapidly when migrating, and be plentiful one day in one place and move from that place overnight. They can be plentiful in the waters of one county and wholly absent from the waters of an adjoining county. This occurred in 1964 when Somerset County had no crabs and Dorchester County had an abundance of them. There can also be, as in 1969, practically no crabs on the eastern side of the Bay and a plentitude of them on the west side and the Potomac River.

There are 530 licensed crabbers in Somerset County and approximately 600 in Dorchester County. These are the professional watermen who work with scrapes, nets and trotlines and do not include pot crabbers who must obtain a license from Annapolis to take crabs and not from the Clerk of the County wherein he resides, as in the case of crabbing other than by pots. A resident of Dorchester can crab by pot anywhere in Somerset but the latter cannot crab by pot in Dorchester. This is because the Department of Chesapeake Bay Affairs has provided by regulation that areas set aside for oyster dredging are the areas where crab pots may be set in Tangier Sound.

These are areas that are thus set aside ⁵⁹¹ for dredging, and crabs may be caught by pot in those areas by anyone, not only residents of Somerset. Dorchester has no area set aside for dredging, except for one area in the Choptank River, but nobody is allowed to crab by pot in that area. Dorchester pot crabbers may, however, come into Somerset. Anywhere from one-half to two-thirds of the entire crab catch in Somerset waters is taken by crab pots by crabbers from other counties.

There are more pot crabbers in Somerset than there are netters and scrapers. Very little crabbing is done in the Chesapeake Bay waters, which are not waters of any county, except by crab pots. This is because of the depth of the water. Crabbers using pots start earlier in the season and go down to the Virginia line to catch the crabs that first come along.

There is not any place that a resident of another county cannot crab with pots. There is no discrimination as to crab pots. The law prohibits residents of other counties from taking crabs and oysters in Somerset and the Department has been requested by the appellants to enforce these laws. The effect of § 322 on a crabber’s living, other than the crab potter, of prohibiting him from crabbing in another county is to reduce his income to the point where his family has a bare subsistence.

A Somerset County waterman could hire a man who resides in any other county in the State to assist him in crabbing or oystering commercially but under § 322 and § 700, such a helper could not obtain a license and therefore would not legally be eligible to work. On the other hand the same waterman could hire a Minister of the Gospel from any county and, as he is expressly exempted from the operation of § 700, he could tong oysters. The chancellor refused to allow testimony as to the lack of any relationship between the subject of the conservation of crab resources and the restrictions in § 322, and -appellants proffered through Oscar J. Smith, that there is absolutely no relationship between the subject of crab conservation and the restrictions of § 322 that ⁵⁹² prohibit a crabber from crabbing in the waters of a county other than his county of residence. Oystering “§ 700 Tonging.

(a) Tonging license required. Any person over the age of fourteen who shall engage in the taking or catching of oysters by tongs or patent tongs from any natural oyster bar of this State, or who shall be employed on any tong boat shall first obtain a license as prescribed herein. * * * (c) How to apply for license. Every applicant for a tonging license shall be required to appear before the clerk of the circuit court of the county or a notary public in and for said county wherein he is applying, and make oath or affirmation that the facts which he shall set forth are strictly true; that he has been a bona fide resident of the county for twelve months next preceding his application for said license; that he desires and intends to use said license in the county in which he resides or in the waters used in common by his own and other counties; and that he will comply with and obey all laws of this State regulating the taking or catching of oysters with tongs or patent tongs; provided, however, that any duly ordained minister of the gospel shall not be subject to the residence requirements of this section. * * * (i) Privileges of tonging license; locations, [This section restricts the licensee to the waters of the county in which the license was issued, except where certain rivers are common to more than one county.]” Maryland Code (1970 Repl. Vol.) Art. 66C. ⁵⁹³ Oysters are found in the same 13 tidewater counties as are crabs.

Oyster bars are specifically marked on a map and they are not migratory and do not move. Once formed, they remain permanently in one area. However, oyster bars have in the past gone out of existence and new ones have developed, and with storms things change considerably. The oysters themselves are not migratory. 2 The current, temperature and salinity of the water are factors which have a dramatic effect on their growth. 3 The State of Maryland has a propagation program and spends between a million and a million and a half dollars a year for planting oysters, both seed and shells, all over the State including the Bay and the county waters.

The chancellor refused to allow testimony as to the action the State is taking in this respect, and appellants proffered through Carlton Y. Dize, that large sums of money are being spent on other counties to the benefit of persons in other counties and that watermen in Somerset are being deprived of benefits bestowed by the State on other counties. The chancellor refused to allow testimony as to the kind of oyster beds that lie in the waters of Anne Arundel County, and the watermen proffered through Oscar J. Smith, that oysters in the waters of Anne Arundel County are so plentiful that there are more than the watermen ⁵⁹⁴ of Anne Arundel County can use, but oystermen from other counties cannot enter that area. For the past 10 or 12 years Somerset has had poor oyster seasons for tonging and patent tonging, because of MSX or some other disease, and the oyster yield has been poor. Oysters will not live in Somerset although 'they keep planting them.

Somerset countians have had to leave the county to make a living in winter. They just do not have oysters in Somerset and have to obtain most of their catch in the waters of the Bay. As to the effect on the ability of the oystermen to make a living, the prohibition of § 700 that prevents oystermen from going to the waters of another county is the same as that on the crabber under § 322. He needs to go across county lines to make a living on occasions such as are currently present in Somerset.

The trial judge likewise refused to allow Mr. Smith to testify as to the lack of any relationship between the conservation of oyster resources and the restrictions in § 700 that prevent oystermen from oystering in the waters of another county, and appellants likewise proffered through Mr. Smith that there is no reasonable relationship between the prohibition from going across the county line and the general subject of natural resources," including the oyster. Upon the conclusion of the taking of testimony (the Commission offering none in rebuttal) Chief Judge E. McMaster Duer filed a memorandum opinion holding the statutes constitutional and dismissed the bill. This appeal is from that decree. Standing of Appellants In limine there is the question of the standing of the appellants to maintain this action which must be disposed of before we consider the merits of the case.

We think the challenge to their standing is without merit and that this issue is controlled by Davis v. State, 183 Md. 385 , 37 A. 2d 880 (1944). In Davis , the Court was presented ⁵⁹⁵ with a proceeding brought by a medical doctor under the Declaratory Judgment Act, requesting a declaration as to the validity of Ch. 600 of the Acts of 1943, which regulated advertising by physicians and surgeons. The doctor claimed that the restrictions on advertising imposed by the Act adversely affected his practice and had materially reduced his income. Although he was unsuccessful in his attack on the constitutionality of the Act, nonetheless, the Court recognized his standing as a complainant, stating: “* * * if a person is directly affected by a statute, there is no reason why he should not be permitted to obtain a judicial declaration that the statute is unconstitutional.

It is true that a court of equity has power to restrain the enforcement of a void statute or ordinance at the suit of a person injuriously affected, [citing cases.] But in this case complainant is affected by the Act of 1943 and he is entitled to apply for a declaratory judgment under the Uniform Act, rather than run the risk of being subjected to criminal prosecution. * * *.” 183 Md. 389 . In the case at bar the uncontradicted evidence shows that the establishment of the territorial restrictions by the statutes have had a severe adverse economic effect on the appellants, as well as on all commercial crabbers and oystermen of Somerset County. We have no difficulty in concluding that their interests are peculiarly affected in that they have sustained a special damage, and consequently have the requisite standing to sue. Richmark Realty v. Whittlif, 226 Md. 273, 282 , 173 A. 2d 196 (1961).

Cf. Pitts v. State Board of Examiners, 222 Md. 224, 226 , 160 A. 2d 200 (1960) ; Dvorine v. Castelberg Corp., 170 Md. 661, 668 , 185 A. 562 (1936). Question of Constitutionality of the Statutes The learned chancellor below, in upholding the constitutionality of the statutes, stated: ⁵⁹⁶ “It is my belief that the Legislature in order to preserve the public rights for crabbers and o-ystermen in the State of Maryland may place certain restrictions on the right of the public to use its waters and this Court cannot question the basis and reasonableness of the restrictions imposed by the Legislature but can only pass on the constitutionality.” In answer to this, we would observe that this Court has repeatedly held, with regard to any legislation which imposes regulation upon the exercise of a constitutional right, that the question of whether the legislation enacted is a reasonable exercise of the police power and in the interest of the safety, health, moral, social or economic welfare of the body politic, or conversely whether it is unwarranted, unfair, burdensome, discriminatory and arbitrary, has always been very much the business of the courts. This is never to be confused with the proposition that if the legislation is constitutional, the wisdom of it is beyond the purview of the courts.

A proper perspective of the interplay existing between the Legislature and the Courts in this sensitive area where the exercise of the police power by the Legislature is being orchestrated is found in Judge Hammond’s (now Chief Judge) opinion in Allied American Mutual Fire Insurance Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 623, 624 , 150 A. 2d 421 (1959) ; see also Daniel Loughran Co. v. Lord Baltimore Candy and Tobacco Co., 178 Md. 38, 48 , 12 A. 2d 201 (1940). The chancellor in sustaining the constitutionality of the statutes relied entirely on Cox v. Revelle, 125 Md. 579 , 94 A. 203 (1915) and Judge Urner’s dictum on pages 586-587, wherein writing for the Court he said: “It was urged that the Act does not state for what public use the natural bars under lease are to be condemned, and that the Court is consequently not in a position to decide whether the intended use is in fact of a public nature. The ⁵⁹⁷ further point is made that if the lots so acquired by the State are designed to be used for the purposes of a public oyster fishery under existing law, regard must then be had to the statutory provision that the right to take oysters for sale from grounds within the limits of any county shall be confined to its own residents, and it is said that this is not to be considered a public use within the intent of the Constitution. As to the question thus proposed we can have no doubt or difficulty.

The plain purpose of the Act is to secure all natural beds or bars for the public use, to which oyster areas owned by the State may be subjected, under laws now in force or hereafter enacted. There can be no doubt as to the public nature of the use to which such grounds are susceptible. The taking of oysters by the public, under license of the State, from lands and waters subject to its ownership and control, is undeniably a public use. * * * In order to answer that description it is not necessary that the use, as to every natural oyster bar, shall be open to the public generally, but the right may be validly restricted to the citizens of the county within whose territory the fishery is located. The principle was stated and applied in Webster v. Pole Line Co., 112 Md. 429 , that a public use need not be available to the whole public, and that it may be confined to the inhabitants of a designated locality, provided it is exercisable in common and is not limited to particular individuals.” (Emphasis supplied.) The chancellor was not correct in relying on Cox as being dispositive of the case at bar.

The above quoted dictum from Judge Urner’s decision was written within the frame of reference of the power of the State to condemn leasehold interests of State owned beds for public use, where the leases had previously been made by the State to private individuals. It is important to note that ⁵⁹⁸ the case which is cited in Cox as precedent, namely, Webster v. Pole Line Co., 112 Md. 416, 429 , 76 A. 254 (1910), was cited out of context and cannot validly be said to support the principle of law which Cox attributes to it. Webster was a public utility case and simply held that a public utility whose stock is privately owned may, through the exercise of eminent domain, acquire private property for a public use in a given or restricted area, the Court stating: “ ‘* * * In determining whether the use is public or not, it is an immaterial consideration that the control of the property is vested in private persons who are actuated solely by motives of private gain. * * * The inquiry must necessarily be, what are the objects to be accomplished, not, who are the instruments for attaining them.’ Nor need the use be for the whole public. ‘It may be for the inhabitants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or estates.’ ” 112 Md. 429 . We think the Court in Cox made a poor choice of analogy in comparing the right of a privately owned public utility to exercise a public franchise in a given community with that of the right of the State to restrict a certain public use (such as the taking of oysters) to the residents of a specific county.

There are a number of areas in which the analogy fails, but the most telling one is the consideration that a public utility must serve without discrimination all those within the area covered by its franchise which may be and usually is a limited area, whereas the State holds the title to fish in public waters in trust for the public, and all members of the public, regardless of where they may live in the state, have the right to take the fish subject to reasonable and nondiscriminatory regulations. In Bradshaw v. Lankford, 73 Md. 428, 431-432 , 21 A. 66 (1891), our predecessors stated: ⁵⁹⁹ “* * * Now the oyster-beds within the waters of Somerset County do not belong to the people of that county. * * * They belong to the State, and * * * the Legislature, representing the sovereign power of the State, may pass laws regulating the taking of oysters within the waters of the State * * See also Browne v. Kennedy, 5 H. & J. 195, 202, 203 (1821). The anterior rationale upon which the “state ownership” theory rests was discussed at some length by the Supreme Court of the United States in Toomer v. Witsell, 334 U. S. 385 , 92 L. Ed. 1460 (1948), wherein the Court stated: “Appellees strenuously urge there is such an exception. Their argument runs as follows: Ever since Roman times, animals ferae naturae, not having been reduced to individual possession and ownership, have been considered as res nullius or part of the ‘negative community of interests’ and hence subject to control by the sovereign or other governmental authority.

More recently this thought has been expressed by saying that fish and game are the common property of all citizens of the governmental unit and that the government, as a sort of trustee, exercises this ‘ownership’ for the benefit of its citizens. In the case of fish, it has also been considered that each government ‘owned’ both the beds of its lakes, streams, and tidewaters and the waters themselves; hence it must also ‘own’ the fish within those waters. Each government may, the argument continues, regulate the corpus of the trust in the way best suited to the interests of the beneficial owners, its citizens, and may discriminate as it sees fit against persons lacking any beneficial interest. Finally, it is said that this special property interest, which na ⁶⁰⁰ tions and similar governmental bodies have traditionally had, in this country vested in the colonial governments and passed to the individual'States.” “Language frequently repeated by this Court, appears to lend some support to this analysis.” [Citing Geer v. Connecticut, 161 U. S. 519 , 40 L. Ed. 793 (1896), wherein Mr. Justice White reviewed the historical development of the “common ownership” theory from ancient Greece to modern times.] 334 U. S. 399 -400 In our opinion the dictum of Cox is inapposite to the case at bar and, as the lower court attempted to apply it, is repugnant to the doctrine of “state ownership.” This leaves as the only remaining pillar upon which the opinion of the lower court leans for support, the traditional presumption of constitutionality attached to any act of the Legislature.

Cromwell v. Jackson, 188 Md. 8, 28 , 52 A. 2d 79 (1947). Turning to the constitutionality of §§ 322 and 700 of Article 66C, we are mindful that “if a law is applied and administered by public authority ‘with an evil eye and an unequal hand’ so as to make unjust discriminations between persons in similar circumstances, material to their rights, such denial of equal justice is within the prohibition of the constitution.” Howard Sports Daily v. Public Service Commission, 179 Md. 355, 358 , 18 A. 2d 210 (1941). By the constitutional yardsticks given us in