State v. Insley

Stone, J., delivered the opinion of the Court. The traverser, Insley, was indicted in the Circuit Court for Anne Arundel County, for carrying oysters in a vessel over the waters of the State of Maryland, and within the jurisdiction of the Circuit Court for Anno Arundel County, without having first obtained a license so to do from the State of Maryland. He was indicted under the Act of the General Assembly of 1884, chap. 518. To this indictment the traverser entered a general demurrer, and the Court below having given judgment on the demurrer in favor of the traverser, the State has appealed to this Court.

The Act of 1884, chap. 518, under which the traverser was indicted, applies exclusively to oysters caught in the waters of this State. It has no application whatever to oysters caught without the waters of the State. Oysters caught in other waters may be transported over the waters of this State, without any infraction of the Act of 1884, ch. ³⁰ 518. The offence which that Act designed and intended to create was the carrying without license, of oysters taken in- the loaters of this State.

But the indictment in this case no where charges that the oysters carried over the waters of this State, by the traverser, were taken in the waters of this State. This latter averment is absolutely necessary, in order to constitute any offence whatever against our Act of Assembly, and being omitted in the indictment it follows, that it is fatally defective, and the judgment must be affirmed. Several constitutional questions arising under the Act of 1884, chap. 518, have been argued before us with great Zealand ability. It has been insisted that the tax imposed by sec. 6 of the Act of 1884, is a “ tonnage tax ” imposed by this State without the consent of Congress, and therefore contrary to Art. 1, sec. 10, sub-sec. 2 of the Constitution of the United States, which