Hughes v. State

Briscoe, J., delivered the opinion of the Court. The appellant, Thomas H. Hughes, was tried and convicted in the Circuit Court for Baltimore County, under a criminal information for illegal fishing, contrary to section 101 of Article 3 of the Code of Public Local Laws, title,. “ Baltimore County,” sub-title, “ Fish.” The Act reads as follows: “It shall not be lawful for any person to fish in the waters of Gunpowder River, Middle River or Back River or their tributary streams, except Bird River, situated in Baltimore County, or in the waters of the Chesapeake Bay, within one mile of the entrance of said rivers into the same, with seine or nets, except from the shore in the usual and customary manner.” The information contains three counts. A demurrer to each of these counts was interposed by the traverser, first, because the Act upon which each and every one of said counts is based is unconstitutional; and secondly, for the reason, that the second count charges an offence unknown to the law. The demurrer was sustained as to the first and third counts but overruled as to the second.

The second count charges that the appellant did unlawfully fish in the Saltpetre, a tributary of the Gunpowder River, with seine and nets, not fishing with these seines and nets from ashore in the usual and customary manner. The traverser was tried and sentenced under this count and from the rulings of the Court in overruling the demurrer to this count and ³⁰⁰ to the rejection of certain testimony offered upon his part this appeal has been taken. As there is no appeal on the part of the State, we are confined in our consideration to the question raised by the traverser’s appeal, and that is, whether the Act of 1878, chapter 242, which has been codified as section 101 of Article 3 of the Code of Public Local Laws, is a valid exercise of legislative power, or whether it is open to the objection urged by the appellant, that it is unconstitutional, because it discriminates in favor of the owners and occupiers of the shores of the “ Saltpetre,” a tributary of the Gunpowder River. The sole question, then, is as to the validity of the Act of 1878.

Now, the law has been well-settled that each State owns the beds of all the tidewaters within its jurisdiction, unless they have been granted away, subject to the paramount right of navigation, the regulation of which in respect to foreign and interstate commerce, has been granted to the United States. Mr. Justice Curtis, in delivering the opinion of the Supreme Court in the case of Smith v. State, 18 Howard, 75 , says, that the State holds the property of this soil for the conservation of the