State v. Mister

5 Md. 11 | Md. | 1853

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 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 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 the right of appeal applies to the judgment of condemnation in the present case.

The appeal to the circuit court being authorised in reference to the condemnation of the vessel, the decision of that tribunal to that extent was final, and we cannot revise it. See 8 G. & J., 443, Wilmington and Susquehanna Rail Road Company, vs. Condon, and 9 Gill, 92, Webster, et al., vs. Cockey, et al.

In 7 Gill, 304, Williams vs. Williams, the court say: “Very sound reasons should be required to induce the court to refuse a party the benefit of an appeal, and any interference with the right, wherever it exists, must be upon strong grounds, and a clear manifestation on the part of the legislature that they designed to withdraw it.” We do not perceive any such design dearly manifested by the act of 1837 in reference to that of 1833.

By the act of 1849, ch. 217, (he legislature have again recognised the continued existence of the original act, b}^ subjecting to presentment and indictment a party who may commit an offence against the provisions of the first section of that original act; and by providing that if the person so presented and indicted, shall prove at the trial that he has been punished under the provisions of the act of 1833, he shall be discharged from further prosecution. The second section of the act of 1849 authorises the condemnation of a vessel where the boatmen shall fly from or abandon her, and directs the mode of proceeding. But, nevertheless, it gives the owner the right to appeal from the judgment of condemnation.

When these various acts are. considered in connection, (as we think they should be,) we see no just reason for supposing that the right of appeal provided for by the act of 1833, does not exist in such a case as the present.

But this right of appeal relates only to the magistrate’s judgment condemning the vessel, as will be seen by reference to the third, fourth and fifth sections. The judgment imposing the fine is made final by the second section.

Our construction of the two statutes before us, is consistent with the principle which governed this court in the case of Glenn vs. The Chesapeake Bank, Alexander, et al., 3 Md. Rep., 478. There the question was, whether the transcript of the record had been transmitted to the Court of Appeals within the time prescribed by law. The act of 1842, ch. 288, provides, that no appeal then pending, or thereafter to be pending, shall .be dismissed, because the record shall not have been transmitted within the time required by law, if it appear to the court that the delay was the result of negligence or omission-by the clerk, and without default of the party.

The act of 1849, ch. 88, is the only law which authorises appeals from orders or decrees in cases of insolvency, ft -requires the appeal to be entered within thirty days, and a certified copy of the record to be transmitted to the appellate court within sixty days from the date of the decision.

The record in that case was not sent up until after the sixty days had expired. On a motion to dismiss it was insisted, that inasmuch as no right of appeal existed in such a case until the act of 1849, by which it was given, and as the provisions of that statute, in express terms, required a certified copy of the record to be transmitted within a given number of days, which had not been done, the motion ought to be sustained, and the act of 1842 could have no bearing'or influence on such a case. But the court held, that the two statutes “ought to be viewed in connection.” And they refused to dismiss the appeal upon the order, where the appeal was entered in time, although the record did not go up within the sixty days. The motion was sustained in reference to an order on which the appeal was entered too late.

An objection has been made, in argument, in reference to the appeal to the circuit court, because the judgment of the magistrate was against several parties, whereas the appeal was taken by only one of them. Admitting, (but without deciding,) that the appeal ought to have been taken by all the parties, the failure to do so was an error which should have been taken advantage of in the circuit court. The decision in 9 Gill, 92, was, that where no right of appeal had been conferred on the county court, then “its judgments unwarrantably pronounced on the subject might, by appeal, be reviewed and reversed in this court.” We have said the circuit court has jurisdiction in appeals on judgments condemning the vessels, we therefore cannot revise any erroneous decision made by that court in reference to such cases. For in the case just referred to it is most distinctly announced, that if the right of appeal was given by the legislature to the county court, its judgments thereon could not be reviewed on appeal to this court, unless the latter right of appeal was also given.

The appeal bond and the petition filed in the circuit court show, that the appeal to that tribunal was on the judgment condemning the vessel, and their decision on such an appeal being final and conclusive, the writ of error must be quashed-.

Writ of error quashed.