Middlekauff v. Le Compte , 149 Md. 621 ( 1926 )

The appellants, some of whom are residents of Washington County, Maryland, and the remainder of whom are residents of West Virginia, have been maintaining fish-pots in the upper, unnavigable portion of the Potomac River, and upon a threat of destruction or opening of the pots by the Maryland Game Warden and the Deputy Game Warden, under the assumed authority and direction of Maryland statutes on the subject, they applied to the Circuit Court of Washington County for an injunction to restrain such action; and from a decree refusing it, and dismissing their bill of complaint, they have prosecuted this appeal.

An act of the General Assembly of Maryland in 1924, chapter 340, amending sections 73 and 80 of article 39 of the Code on the subject of "Fish and Fisheries," prohibits the taking of any of the species of fish named in the act, "in any of the waters of this State above a point where the tide ebbs and flows with * * * fish pots * * * or by any means or contrivance in the nature of a seine or net or trap," and the obstructing of "any stream above where the tide ebbs and flows, so that fish shall not have free access up and down said stream." Fish pots are contrivances in the nature of screens and traps placed at the junction of low dams or walls extending out from each shore and somewhat down stream in such a way as to collect the water and send it through the pot, so that the fish may be screened out there. It is an old Indian method of fishing in shallow streams, used by white men since the early history of the colony. Such contrivances would seem to leave little or no chance for escape of any fish going down stream, and the evidence shows that they do screen off all kinds of fish, including bass and others specifically mentioned in the statute. We find the contention that the pots violate the statute amply sustained.

The appellants contend, however, that this statute is not effective because the Compact of 1785 between the State of Virginia and Maryland, in the eighth section, provided that, "All laws and regulations which may be necessary for the preservation of fish * * * in the river Potomac, * * * shall be made with the consent and approbation of both States." Both this Court and the Supreme Court of the United States have held the Compact to be still binding, except in so far as provisions of the United States Constitution have superseded it. State v. Hoofman,9 Md. 28; Wharton v. Wise, 153 U.S. 155, 172. And it is conceded that the Maryland Act of 1924 has not been concurred in by the State of Virginia. The appellees contend, however, and the trial judge has agreed, that the Compact of 1785 had no reference to fishing in the upper, unnavigable portion of the Potomac. We have come to the same conclusion.

The Compact of 1785 appears to have been the last of three efforts to settle some definite controversies which arose between the two states during the American Revolution, and which continued until the Compact was effected. The chief grounds of controversy were differences in tolls on shipping and duties, and conflicting views on the jurisdiction of the courts of one state and the other. The Continental Congress, on November 22d 1777, recommended a conference of Maryland, Virginia and North Carolina, to meet in the following January to consider a wide range of subjects; the price of labor, manufactures, internal produce and commodities imported from foreign countries. That specific recommendation came to nothing; but Virginia, by an act of December 9th, 1777, appointed commissioners to meet like commissioners from Maryland "to consider the most proper means to adjust and confirm the rights of each to the use and navigation, and jurisdiction over the Bay of the Chesapeake, and the rivers Potomac and Pocomoke, in order to prevent any difference on these subjects which may interrupt that desirable harmony between the two countries, which is equally the interest of both to cultivate." On December 22d 1777, the General Assembly of Maryland appointed commissioners in turn; and gave them instructions on the grounds of controversy. The general question of jurisdiction to be settled was described in the instructions as "the point of jurisdiction over that part of the Bay lying within the limits of Virginia." And the commissioners were to endeavor to settle the point by an agreement that piracies, crimes or offences committed on that part of the bay by Maryland subjects or by persons not subjects of Virginia, against subjects of Maryland, should be tried in Maryland; that those committed by subjects of Virginia, or by persons not subjects of Maryland, against subjects of Virginia, should be tried in Virginia; that any person flying from justice from either state, might be taken upon said water by process from that state, and that piracies, crimes and offences committed by persons not subjects of either state against other persons not subjects of either state should be tried in the state in which the offender should be first caught. That conference came to nothing.

The final, successful convention was started by the appointment of commissioners in Virginia by an act passed on June 28th, 1784, "to frame such liberal and equitable regulations touching the jurisdiction and navigation of the waters of Chesapeake Bay, and the rivers Potomac and Pocomoke, as may be mutually advantageous to the two States." The General Assembly of Maryland, at its November Session, 1784, responded with a resolution appointing commissioners to meet those of Virginia, "for the purpose of settling the navigation of, and the jurisdiction over, that part of the Bay of Chesapeake which lies within the limits of Virginia, and over the rivers Potomac and Pocomoke, and that the said commissioners, or any two of them, have full power, in behalf of this State, to adjust and settle the jurisdiction to be exercised by the said States, respectively, over the said waters and the navigation of the same, * * * and that the said Commissioners be directed to govern themselves in the execution of the trust reposed in them by the instructions of the general assembly, of the twenty-second day of December, seventeen hundred and seventy-seven, and the instructions which shall be given by this assembly." SeeInstructions to the Commissioners of Maryland, Votes and Proc.House of Delegates, 22 Dec., 1777, Resol. 1784, No. 22;Scharf's History of Maryland, vol. 2, pages 519, 520, 528, etseq."

It would seem from these preliminaries, then, that the only waters with which the joint commission was to be concerned were those on which there was navigation. It will be borne in mind, of course, that the Potomac and the Pocomoke were broad, navigable waterways on the boundary between the two states, where questions of the kind outlined were likely to arise. Nothing was said in the preliminary act or resolution about the preservation of fish; the two legislatures spoke only of points of jurisdiction over the waters, and the navigation of the same.

During this same year, 1784, the two states were arranging for another, distinct joint commission on the question of extending navigation on the upper, and then unnavigable, portion of the Potomac. In August of that year the movement was started by a suggestion of General Washington's, and the convention met in Annapolis on December 22d 1784, and its results were embodied in the Virginia Act of 1784, chap. LXXXII, and in the Maryland Act of 1784, Chap. 33, both providing for the formation of the Potomac Company to effectuate the purpose in mind. It was one of the earlier of the steps which ultimately led to the construction of the Chesapeake and Ohio Canal.

Taking up the provisions of the Compact of 1785, the eighth clause taken alone, and read in full, seems to refer only to navigable waters. It is that, "All laws and regulations which may be necessary for the preservation of fish, or for the performance of quarantine, in the river Potomack, or for preserving and keeping open the channel and navigation thereof, or of the river Pocomoke within the limits of Virginia, by preventing the throwing out ballast, or giving any other obstruction thereto, shall be made with the mutual consent and approbation of both States." And the Compact as a whole seems to confirm this construction. The first five clauses are concerned with vessels, tolls, port charges, freedom of navigation and entry into each state of vessels of given tonnage. The sixth makes the river Potomac a common highway for the purpose of navigation and commerce. The seventh secures to the citizens of each state property and rights in the shores of the Potomac, with the privilege of carrying out wharves and other improvements so as not to injure or obstruct navigation, adding that "the right of fishing in the river shall be common to, and equally enjoyed by, the citizens of both states." The eighth concerning laws and regulations for the preservation of fish or the performance of quarantine in the river Potomac, has been quoted in full. The ninth concerns lighthouses, beacons, buoys or other necessary signals on these waters, including the Potomac. The tenth is the article covering jurisdiction of crimes committed on the waters. The eleventh concerns the libelling, attaching or seizing of vessels, fugitives and the service of process. And the twelfth concerns transportation of the products of land from one state to the other, and the removal of effects free from any duty, tax or charge.

In 1829, Chancellor Bland, in Binney's Case, 2 Bland, 99, had to consider an argument that the Compact of 1785 established the character of even the stream above tide as a navigable river and highway common to both states. And he answered, page 126: "The general scope and object of that compact was, not to fix and give a legal character to any natural subject whatever; in that respect it did not profess to alter or to stipulate for anything; throughout it speaks of waters, which are by nature navigable; and regulates the terms and manner in "which the natural navigation is to be conducted by the citizens of the contracting parties. The first nine articles cannot possibly be applied in any other way. The tenth establishes certain regulations respecting piracies, crimes and offences, and for any violence, injury or trespass, to or upon the property, or lands of others adjacent to the said bay or river, etc. Piracy is a name given to no offence committed within the body of a county; but only to crimes upon bays and rivers, or any tidewaters, considered as an arm of the sea, not within the body of a county, but originally and properly within the jurisdiction of the admiralty. This provision respecting piracy, therefore, clearly confines the whole article to acts done on tidewater, or abroad, or not within the body of any county; and of which the courts of common law could not otherwise have jurisdiction. The eleventh article speaks of the ports of the Potomac, certainly on tide-water, for there could be none above; and of persons flying from justice. This again must have been upon the tide-water and not within the body of any county; because the whole of the river, above tide, not being navigable, or a common highway, was within the bodies of the respective adjacent counties; and could afford no sanctuary to those who should flee from the justice of municipal law; since they would be there fully within reach of process from the courts of common law of the state to which the river belonged. The twelfth article relates to the transportation of the effects of the citizens of each state across the river free of duty. But it could not be necessary to extend this provision higher than the tide; because a similar stipulation had been previously embodied in the act incorporating The Potomac Company. 1784, ch. 33, s. 19. There is, therefore, nothing in this compact, which relates in any manner whatever to the River Potomac above tidewater."

None of the other cases cited appear to have had to do with the river above tide, and they do not, therefore, determine the point here involved. State v. Hoofman, 9 Md. 28; Hendricks v.Commonwealth, 75 Va. 934; Ex parte Marsh, et al., 57 Fed. 719;Wharton v. Wise, 153 U.S. 155.

We find, upon the reasoning stated, therefore, that the Compact of 1785 did not require the concurrence of the Legislature of Virginia to render effective the prohibition against fish pots in the upper Potomac in the Maryland Act of 1924.

The appellants contend that even if this be true, and the Act of 1924 be given full effect according to its terms, there is nothing in it, or elsewhere in the law, which gives the Game Warden authority to enforce the law by opening and destroying the fish pots. To this it seems a sufficient answer that a court of equity will not give a remedy to preserve a violation of the statute law. Maryland Trust Co. v. Mechanics' Bank,102 Md. 608, 631.

The conclusions already stated seem to dispose of the case without the necessity of discussing other points made in argument.

Decree affirmed, with costs to the appellees.