Hendricks v. Commonwealth

75 Va. 934 | Va. | 1882

Anderson, J.,

delivered the opinion of the court.

The indictment contains two counts. The first charges, that between the 1st day of March and the 1st day of June, 1880—viz: on the 17th day of May, 1880—within the waters, bounds and berth of a regularly hauled fishing landing upon the Potomac river, in the county of Fairfax, without permission either of the owner or occupier of the said fishing landing, he, the said George Hendricks—the plaintiff in error—a certain seine and gill-net, which he then and there had, did unlawfully haul, drift and fish, contrary to the act of the general assembly in such case made and provided by the mutual consent of the States of Maryland •and Virginia—the said act of the general assembly of Virginia being then and there in full force and effect, by the enactment of a similar law by the state of Maryland'— against the peace and dignity of the Commonwealth of Virginia.

The second count charges that the said George Hendricks, on the 17th day of May, 1880, upon and in the Potomac river, and opposite the shore of the river in the said county of Fairfax, with a certain gill-net and seine, other than such as may be laid out and hauled to, and landed upon the shores of said river, did unlawfully fish contrary to the act of the general assembly of Virginia in such made and provided, by the mutual consent of the States of Maryland and Virginia, &c., as in the first count. The first count is founded on § 18, ch. 100 of the Virginia Code of 1873, and the second count upon the 20th section of said chapter. Both of these sections were enacted with the consent and approval of the State of Maryland, and, in fact, were not to go into effect, by express terms, until a similar act was passed by the legislature of Maryland, which is admitted has been done.

But it is alleged that George Hendricks was a citizen of Maryland when he committed the offences charged in the indictment (and it is admitted that it is proved that he committed them); but being a citizen of Maryland, it is insisted that, by solemn compact between the States of Virginia and Maryland, made in 1785, and which is still in force, he could not be tried by a court of the Commonwealth of Virginia, but could only be tried by a court of Maryland which had cognizance of such offences.

By article eight of that compact, which may be found in the Virginia Code of 1873, p. 110, “all laws and regulations, which may be necessary for the preservation of fish” in the river Potomac or the river Pocomoke, within the limits of Virginia, “shall be made with the mutual consent and approbation of both States.” The effect of this article is to give the State of Virginia concurrent jurisdiction with the State of Maryland, over the Potomac river from shore to shore, and over that part of the Pocomoke river which is within the limits of Virginia, to enact such laws, with the consent and approval of Maryland, as may be deemed necessary and proper for the preservation of fish in said waters. The power of a State to enact laws, carries with it the judicial power to enforce them. A law without a sanction is no law; and an act of legislation without power to enforce it, is not a law. The judicial, unless otherwise stipulated in the compact, is co-extensive with the legislative jurisdiction. On this subject reference is made to Lawrence’s Wheaton’s Intern’l Law, 224 to 229; United States v. Cornell, 2 Mason C. C. 64-4.

It is contended that this concurrent jurisdiction is qualified and restricted by article ten of the compact. That article relates to piracies, crimes and offences. First, to those committed on that part of the Chesapeake bay which is within the limits of Virginia or where it is doubtful, the line of division being doubtful; or on that part of Pocomoke river which is in the limits of Virginia, or where the line is doubtful. It is stipulated that if they are committed by any persons not citizens of Virginia, against citizens of Maryland, they shall be tried in the court of the State of Maryland, which has cognizance of such offences. If committed by persons not citizens of Maryland against citizens of Virginia, they shall be tried in the Virginia court which has cognizance of such offences. If committed by persons not citizens of either State against persons not citizens of either State, they shall be tried in a Virginia court which has cognizance of such offences. If they are committed by a citizen of Virginia, or of the State of Maryland, either against the other, the offender shall be tried in that State of which the offender is a citizen.

Said article relates, secondly, to piracies, crimes and of-fences committed on the Potomac river, and provides that jurisdiction shall be exercised in the same manner in every respect, except in cases of piracies, crimes and offences committed by persons not citizens of either State upon persons not citizens of either State, the offenders shall be tried in the court of the State to which they shall first be brought.

This article has reference only to offences against the citizen or individual. When the offence is against the State, and not against an individual or citizen, there is no declaration as to the court of which State shall take cognizance of it. The jurisdiction in such case is left to be regulated by the public law, except so far as it is determined hy article 8, that it shall be regulated by the concurrent legislation of both States, which has been done. And this prosecution is for the violation of the 18 th and 20th sections of a statute which was enacted by the State of Virginia, with the consent and approval of the State of Maryland, which has a similar statute. Va. Code of 1873, ch. 100, §§ 18 and 20.

We are of opinion that article 10, under the denomination of “piracies, crimes and offences,” was not intended to embrace offences against the laws and regulations with regard to fish, which had been disposed of by article 8, and over which full and complete concurrent jurisdiction had been given to both States, to make such laws and regulations, with mutual consent and approval, as they might deem necessary and proper. After having determined that the legislatures of the two States should regulate and dispose of that subject by concurrent legislation, they would hardly have divested the legislatures of the authority and jurisdiction of that subject, and to regulate and dispose of it as they might deem necessary and proper, by laws passed with mutual consent and approbation, and undertaken to determine and dispose of it by the compact itself in a subsequent article—to regulate by the compact itself what had just before been determined should be regulated and disposed of by the legislatures.

But if the 10th articlele can be regarded as a restriction upon the concurrent jurisdiction given to the two States, by mutual and concurrent legislation and regulations with regard to fish in said waters, it is, as we have seen, only applicable to offences against the citizen. Whether the prosecution under the first count in the indictment is for an offence against a citizen, may be questionable. The compact in 10th article seems to have been carefully limited to offences against the citizen, as distinguishable from offences against the State. It is true that offences may be committed against the State in injuries and trespasses against the person; but they are separable, and for the injury to the citizen he has the right of action against the offender, who may also be liable to a prosecution for hisoffence against the State. But in this case the offence charged against the State, committed within the bounds of a fishing landing, would have been all the same an offence against the State if there had been no owner or occupier of the landing to give or withhold the permission.

In this case, there was an owner and occupier of the-fishing landing within the bounds of which the offencesare charged in the first count to have been committed without the permission of the owner or occupier—an averment Avhich it was necessary and proper to be made in that-count, yet in the second count, under the 20th section of the statute, no such averment was made, or could have been, made. For offences under that section, and as laid in said count, involve no violation of private right, but were purely offences against the State, and consequently do not fall within the restrictions as to jurisdiction, contained in article 10 of the compact, and are clearly within the purview of section 20 of the statute, which is unquestionably consistent with article 8 of the compact.

But if the defendant, if a citizen of Maryland, could not be convicted under the first count of the indictment, because it involved an offence against a citizen of Virginia, a position which we think is not tenable, yet he was liable to be coDvicted under the second count. The demurrer being to the indictment, and not to the count thereof, if either of them was good, it was properly overruled. And the verdict being general, if supported by either count, must stand. But it is contended that the second count is faulty, because it does not negative the proviso in the 20th section, which is as follows: “ Provided that nothing in this section shall be construed to prevent bona fide citizens of the counties bordering on the aforesaid waters from fishing the shores they own or occupy, as they have hitherto been in the habit of doing.” It is contended that it should have been shown by averment in the indictment that the accused was not within that proviso. But this is expressly overruled in Bill’s case, 5 Gfratt. 682.

The court is of opinion, therefore, that both instructions to the jury prayed by the defendant were properly overruled, and they deem it unnecessary to consider the question whether the defendant could avail himself of an objection to the jurisdiction of the court, under the plea of not guilty, or could only have availed himself of it by a plea in abatement. The court perceives no error in the judgment of the court for which" it should be reversed, and is of opinion to affirm the same.

Judgment appirmed.