State v. Mister

Eccleston, J., delivered the opinion of this court. The acts of 1833, ch. 254, and 1S37, ch. 310, were passed for the purpose of preventing the destruction of oysters in this State, and impose certain penalties for the violation of their provisions. The case now brought before us by a writ of error, commenced before a justice of the peace in Somerset county, whose judgment imposed a fine of $10 upon the defendant, and forfeited tbe vessel. The amount of the fine shows that it was imposed under the act of 1837, as that act prescribes a fine of not less than $5 nor more than $50, whilst the former law makes $5 the maximum of the fine for each of the beat-men.

From the decision of the justice condemning the boat, an appeal was taken to the circuit court for Somerset county; where, after a jury trial, the court reversed the magistrate’s judgment, and under the present writ of error we are asked to reverse the last decision. But our attention is first called to the consideration of a motion to dismiss or quash the writ of error. Several reasons in support of tins motion have been filed on ¹⁴ the part of the defendant, but our view of the matter renders it unnecessary to notice any other than the fourth, which is: that the statutes upon which the proceedings below weie had provide an appeal, and therefore such appeal is final, and cannot be reviewed in this court upon a writ of error. So far as the appeal to the circuit court was authorised by law, we have no control over their decision.

But the counsel for the State denies the existence of any authority for that appeal. He says although the act of 1833 gives a right of appeal, no such right is given in that of 1837; and the provisions of the latter are so essentially different from those of the former, as to the nature of the offence prohibited and the amount of the fine, that the appeal given in the first statute cannot be applicable to a case arising under the last. In this we do not agreee with him. The two laws are in pari materia, having one common object — preventing the destruction of oysters — and are to be construed as parts of a system.

The first act makes it unlawful to catch oysters in any of the waters of this State with a scoop or drag, or any other instrument, than such tongs or rakes as were then in use and authorised by law. The sheriff is the officer who is to seize the vessel, arrest (he boatmen, and lake them before a justice of the peace. His powers are defined, and the manner of proceeding on his part, as well as the duty of the magistrate, are prescribed. A fine is provided for in regard to each offending boatmen, and the vessel is forfeited.

The first section of the act of 1837 is, “ that from and after the passage of this act, the powers and authority granted in the law to which this is a supplement, to the sheriff of the counties, shall be, and are hereby granted to all constables, and all other officers, civil and military, to carry into effect the provisions of that law, and of the several sections hereinafter contained, and that the mode of proceeding under this law shall be such as is therein prescribed for the action of the sheriff.” The third section authorises a fine of not less than §5 nor more than §50, and also the forfeiture of the vessel, "for every offence committed against the provisions of this law, or ¹⁵ the act to which this isa supplement,” that being the act. of 1833. Thus the last law adopts the provisions of the first as the rules to govern the arresting officer, only giving the authority which the sheriff had, to other officers, but without annulling his. The forfeiture of the vessel is provided for in both; and the third section of the act of 1837 recognises the acts prohibited by the former law, as offences still against the provisions of that law. It cannot therefore be true, as has been contended, that in any of these respects the repealing clause of the last act repeals the former, for it only professes to repeal “ all laws or part of laws inconsistent with the provisions” of the act itself.

In this case the charge against the party before the justice was, for “having violated the laws of this State, by using scoops or drags in taking or catching of oysters in the waters of this State.” And the judgment of the justice was, for “having violated the laws of this State, by taking or catching of oysters in the waters of this State with scoops or drags.” The offence charged by the State in the circuit court is of the same character. It is therefore manifest that the trial was for an offence against the provisions of the act of 1833. And although the fine imposed, from its amount, shows it was imposed under the last law, and notwithstanding the arrest may have been made, not by a sheriff, but by an officer deriving his authority from that law, nevertheless, as these acts are so intimately connected in their provisions, in regard to a case like this, and as the first law gives the right of appeal to either of the boatmen, thinking himself aggrieved by a judgment condemning the vessel for a violation of the provisions of that statute, we think