Tyler v. State

Schmucker, J., delivered the opinion of the Court. The appellant was indicted in the Criminal Court of Baltimore City for unlawfully having oysters in his possession which contained more than five per cent of shells, and oysters less than two and one-half inches from hinge to mouth. The indictment was found under section 8 of chapter 380 of the Acts of 1900, which provides that “Any person who shall have oysters in his possession which contain more than five per cent of shells, and oysters less than two and one-half inches from hinge to mouth, which for the purpose of this article are declared to be unmerchantable oysters, shall be guilty of a misdemeanor, and in ascertaining such percentage the officers of the oyster police force, and the measurers and inspectors are hereby authorized and directed to select such amount of oysters from any pile, hold, bin, house or other place as he may think proper, and to require the same to be culled and disposed .of as provided in section 9 of this article, and any person violating the provisions of this section shall be subject to the penalties and fines as provided in section 9 of this Article in precisely the same manner as if he were a captain of a boat.” Section 9 makes it unlawful for any person to receive a cargo or any part of a cargo of oysters unless an inspector or measurer shall be present who shall determine whether the oysters have been properly culled and prescribes penalties to be imposed upon the captain, master or person in charge of the oysters for a violation of its provisions. These penalties consist of the payment of a fine and the return by the captain or person in charge of the cargo of such portion of the oysters as are under the merchantable size to the beds from which they were taken and the scattering of them upon such beds under the direction of a deputy commander of the oyster police.

The appellant demurred to the indictment and the Court ³¹¹ overruled his demurrer. He then filed a special plea asserting as his defense that the oysters, for the possession of which he had been indicted, formed part of the cargo of a schooner of which he was the captain, and that the oysters had been taken from the waters of the State of Virginia by citizens of that State who had complied with its laws as to the taking of oysters in its waters, and had been sold to him by such citizens of Virginia at Manchodoc creek in that State and there put upon his boat and from thence brought by him to Baltimore. To this plea the State filed a demurrer which was sustained pro forma by the Court. The case was then submitted under a plea of non cul to the Court which found the traverser guilty and imposed a fine upon him and he appealed.

The important issue in the case is the one raised by the special plea to the indictment which presents for our consideration the question whether the statute under which this indictment was found makes it unlawful to have in possession unculled oysters which were not taken from the waters of this State but were lawfully taken from the waters of another State by its citizens and afterwards brought into Maryland. We recently held in Stevens v. The State, 89 Md. 669 , that it is entirely within the power of the State to prohibit the having in possession or exposing to sale in this State within the closed season game which has been taken either within the State or elsewhere. The same principle would apply to a prohibition against having in possession oysters of which more than a specified portion were of a size declared by law to be unmerchantable. The real question, therefore, to be determined is whether the law now under consideration was intended to apply to oysters lawfully taken from waters outside the limit of this State.

A careful examination of the law satisfies us that it was intended to apply only to oysters taken from Maryland waters. The law does not in express terms apply to oysters taken from waters outside of the State. In that respect it differs from the Act of 1898, ch. 206, passed for the better protection of birds and game animals which was upheld by us in Stevens' case, ³¹² and which by its terms makes it unlawful to have in possession or expose for sale during the closed season birds or game animals shot or killed in this State “or in any other State, territory or country Before the passage of the Act of 1898, the game laws of the State prohibited in broad terms the catching, killing or having in possession “any rabbit” during the closed season. Under the law as it then stood, a dealer in game in Baltimore City was indicted for having rabbits in his possession during the closed season and it appearing that the rabbits had been lawfully killed in West Virginia, we held that the traverser was not-liable.

Dickhaut v. State, 85 Md.