WHARTON v. WISE(1894)
At March term, 1893, of the county court of Accomack county, the appellant was indicted by the grand jury of the county for that, being a nonresident of Virginia, he did unlawfully take and catch oysters in the waters of the state, and within the jurisdiction of the county, to wit, on Ledge Rock in Pocomoke sound, against the peace and dignity of the commonwealth. At the following April term he appeared in court, and filed a special plea to its jurisdiction, alleging that at the time the offense charged was committed he was a citizen of Maryland, residing in Somerset county, of that state, and that the act of the assembly of Virginia under which the indictment was found had not been adopted or ratified by the general assembly of Maryland; that by the compact of 1785 between those states, which had never been repealed or annulled, but was still in effect, and operative, the court had no jurisdiction to try the defendant for the alleged offense, Pocomoke sound, mentioned in the indictment, being a part of Pocomoke river mentioned in the compact. The commonwealth demurred to the plea, and the court sustained the demurrer, adjudging the plea to be insufficient. Thereupon [153 U.S. 155, 157] the defendant, under the plea of not guilty, was tried and convicted, and was sentenced to pay a fine of $500, the sum prescribed by the statute for the offense, and the costs of the prosecution, and ordered to be committed to the jail of the county until the fine and costs were paid. Averring that he intended to apply to the circuit court for a writ of error, he moved the county court to be admitted to bail pending his appeal, but the motion was denied, on the grond that the law of the state did not provide for admitting a person to bail after conviction. He was thereupon taken to the jail by the sheriff of the county, and detained by him in default of payment of the fine and costs. He then applied to the circuit court of the United States for the eastern district of Virginia for a writ of habeas corpus to be directed to John H. Wise, the sheriff of the county of Accomack, by whom, under the judgment, he was imprisoned, requiring the officer to produce the petitioner before that court, with the authority for his detention, alleging that his imprisonment was unlawful on grounds which, as stated by counsel, were similar to those now urged for a reversal of the judgment before us, namely: That the compact of 1785 between the states of Virginia and Maryland was still a subsisting agreement, binding upon and enforceable by each of those states and the citizens thereof; that by its provisions the citizens of Maryland possess and are entitled to enjoy freely a right of fishery, including the right to take oysters, in common with the citizens of Virginia, in the Pocomoke river; that that river, as mentioned in the compact of 1785, embraces what is now commonly called Pocomoke sound, which is nothing but the mouth of Pocomoke river; that the law of Virginia, under which the petitioner was arrested, indicted, and convicted, was never adopted by the concurrent legislation of Maryland, and was therefore inoperative as against the citizens of that state, and that the conviction thereunder of the petitioner, who was a citizen of Maryland, was void. And on the further ground that, assuming the law of Virginia was not inoperative against citizens of Maryland, still, under the tenth section of the compact of 1785, the petitioner, as a citizen of that state, could not be lawfully tried in the [153 U.S. 155, 158] courts of Virginia for the offense charged, but was to be tried in the courts of Maryland.
The writ was issued, directed to the sheriff of Accomack county, and made returnable before the circuit court of the United States for the eastern district of Virginia, at Norfolk, on the 11th of May, 1893, and was then adjourned for hearing in Richmond on the 1st of June following, at which time and place the case was fully heard. At the succeeding term the court rendered its decision, to the effect that the writ of habeas corpus be dismissed, and that the petitioner be remanded to the custody of the sheriff of Accomack county. From this judgment the petitioner appealed to this court.
John Prentiss Poe, Atty. Gen., Bradley T. Johnson, and Thos. S. Hodson, for appellant.
[153 U.S. 155, 162] R. Taylor Scott, Atty. Gen., James H. Fletcher, Jr., William A. Jones, and Waller R. Staples, for appellee.
Mr. Justice FIELD stated the case and delivered the opinion of the court.
The disposition of the appeal will require an examination of certain provisions of the compact between the states of Maryland and Virginia of 1785, as upon their interpretation and effect the controversy which has given rise to the present proceeding, and similar controversies between citizens of those states, and their respective rights to fish in the waters of Virginia for oysters, will be determined. The questions involved are of deep interest to both states, and they have been presented by distinguished counsel on their behalf with great ability.
Previous to June, 1784, great inconveniences were experienced by citizens of both Maryland and Virginia from the want of established and recognized regulations between those states respecting the jurisdiction and navigation of the river Potomac, which constituted a boundary between the two states for over 100 miles. In that month and year the general assembly of Virginia, reciting that such inconveniences resulted from want of some concerted regulations between the states, 'touching the jurisdiction and navigation of the river Potomac,' passed the following resolutions:
The resolutions were communicated to the executive of Maryland, and by him laid before the legislature of that state, which responded to the invitation by a resolution, passed on the 18th of January, 1785, appointing commissioners on her part to meet those of Virginia, but with powers somewhat enlarged. The resolution, as adopted by the senate of Maryland, declared that Thomas Johnson, Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer (selected by the house of representatives two days before) should be commissioners for the state of Maryland to meet the commissioners appointed by the commonwealth of Virginia, 'for the purpose of settling the navigation and 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 commissioners, or any two of them, should have full power, on behalf of Maryland, 'to adjudge and settle the jurisdiction to be exercised by the said states, respectively, over the waters and navigation of the same, the proceedings to be laid before the general assembly of the state to be ratified,' etc.
The commissioners met at Mt. Vernon in the following year, and on the 28th of March a compact between the two states was mutually agreed upon by them.
In its first clause Virginia disclaimed all right to impose any toll, duty, or charge, prohibition or restraint on any vessel sailing through the capes of Chesapeake bay to the state of Maryland, or from that state through the capes outward bound, and agreed that the waters of Chesapeake bay and Pocomoke river within the limits of Virginia should be forever considered as a common highway for the use and navigation of any vessels belonging to the state of Maryland or any of its citizens, or for carrying on any commerce to or from that state or with any of its citizens, and that any such vessel inward or outward bound might enter any of the rivers within the commonwealth of Virginia as a harbor, or for safety against an enemy, without the payment of port duties or any other [153 U.S. 155, 164] charge; and that the waters of Chesapeake bay and Pocomoke river should be free for the navigation of vessels from one part of the state of Maryland to another.
In the second clause the state of Maryland agreed that any vessel belonging to Virginia or any of its citizens, or carrying on commerce to or from that state, or with any of its citizens, might freely enter its rivers as a harbor, or for safety against an enemy, without the payment of any port duty or other charge.
In the third clause it was provided that war vessels, the property of either state, should not be subject to the payment of any port duty or other charge.
The fourth and fifth clauses related to commerce between citizens of the two states in their produce, providing that vessels of a certain size might enter and trade in the ports of either state with a permit from the naval officer of the district, and should not be subject to port charges.
The sixth clause declared that the river Potomac should be considered a common highway for the purpose of navigation and commerce to the citizens of both states, and all other persons in amity with the two states, trading to or from Virginia or Maryland.
The seventh clause provided that 'the citizens of each state, respectively, shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river; but the right of fishing in the river shall be common to and equally enjoyed by the citizens of both states; provided, that such common right be not exercised by the citizens of the one state to the hindrance or disturbance of the fisheries on the shores of the other state; and that the citizens of neither state shall have a right to fish with nets or seines on the shores of the other.'
The eighth clause provided that 'all laws and regulations which may be necessary for the preservation of fish, or for the performance of quarantine in the river Potowmack, or for preserving and keeping open the channel and navigation thereof, or of the river Pocomoke, within the limits of [153 U.S. 155, 165] 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.'
The tenth clause provided that 'all piracies, crimes, or offences committed in that part of Chesapeake bay which lies within the limits of Virginia, or that part of the said bay where the line of division from the sough point of Potowmack river, (now called Smith's Point,) to Watkins' Point, near the mouth of Pocomoke river, may be doubtful and on that part of Pocomoke river within the limits of Virginia, or where the line of division between the two states upon the said river, is doubtful, by any persons not citizens of the ocmmonwealth of Virginia against the citizens of Maryland, shall be tried in the court of the state of Maryland which hath legal cognizance of such offence. And all piracies, crimes, or offences committed on the before-mentioned parts of Chesapeake bay and Pocomoke river, by any persons, not citizens of Maryland, against any citizen of Virginia shall be tried in the court of the commonwealth of Virginia which hath legal cognizance of such offence. All piracies, crimes, and offences committed on the said parts of Chesapeake bay and Pocomoke river, by persons not citizens of either state, shall be tried in the court of the commonwealth of Virginia having legal cognizance of such offences. And all piracies, crimes, and offences committed on the said parts of Chesapeake bay and Pocomoke river, by any citizen of the commonwealth of Virginia or of the state of Maryland, either against the other, shall be tried in the court of that state of which the offender is a citizen.'
There were other provisions in the compact, but those to which reference is made are all that are important in the disposition of the present case.
The compact provided that its articles should be laid before the legislatures of the two states, and, their approbation being obtained, should be confirmed and ratified by a law of each state, never to be repealed or altered by either without the consent of the other. The articles were accordingly laid before the legislatures of those states, and were approved, [153 U.S. 155, 166] ratified, and confirmed by a law of each substantially identical in terms. The concluding clause of the act of ratification of the legislature of Virginia is as follows: 'And whereas this general assembly are of opinion that the said compact is made on just and mutual principles for the true interests of both governments, and the same having been confirmed by the general assembly of the state of Maryland, be it therefore enacted that the said compact is hereby approved, confirmed, and ratified by the general assembly of Virginia, and that every article, clause, matter, and thing therein contained shall be obligatory on this state and the citizens thereof, and shall be forever faithfully and inviolably observed and kept by this government and all its citizens according to the true intent and meaning of this compact; and the faith and honor of this state are hereby solemnly pledged and engaged to the state of Maryland and the government and citizens thereof that this law shall never be repealed or altered by the legislature of this commonwealth without the consent of the state of Maryland.'
A similar clause concludes the act of ratification by the state of Maryland, with a change only in the terms required to indicate it as the act of Maryland instead of that of Virginia.
The provisions of the compact were well designed to promote the peace, good neighborhood, and welfare of both states, and facilitate intercourse between their citizens, and it was clearly within their competency at the time to adopt them, if not restrained by the articles of the confederation then in existence, and in which they had joined. They were then sovereign states, possessing, unless thus restrained, all the rights and powers of independent nations over the territory within their respective limits, and could exercise any control and dominion over their navigable waters, and make any regulations necessary for the protection of their navigation, or to promote the commerce upon them of their respective states. Those articles expressly provided that each state composing the confederation retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right which was [153 U.S. 155, 167] not by them expressly delegated to the United States in congress assembled. The confederation was a league of friendship of the states with each other, so declared in the articles, and entered into 'for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.' But its articles did not form a constitution or ordinance of government, with power to enforce its provisions upon each other, or even a compact having any coherence or binding force other than that of a league of friendship, which its members only claimed them to constitute.
The validity of the compact of 1785 has been questioned as in conflict with the second clause of the sixth article of the confederation, which provided that no two or more states should enter into any treaty, confederation, or alliance whatever between them without the consent of the United States in congress assembled, specifying accurately the purposes for which the same was to be entered into, and how long it should continue; and also as having been superseded by the constitution of the United States subsequently adopted. A few words upon each of these positions. The articles inhibiting any treaty, confederation, or alliance between the states without the consent of congress were intended to prevent any union of two or more states, having a tendency to break up or weaken the league between the whole. They were not designed to prevent arrangements between adjoining states to facilitate the free intercourse of their citizens, or remove barriers to their peace and prosperity; and, whatever their effect, such arrangements could not be the subject of complaint by the states making them until, at least, the congress of the confederation interposed objections to their adoption or enforcement, which was never done.
The provisions of the compact, so far as they were inconsistent with the constitution of the United States, subsequently adopted, and to which Maryland and Virginia were parties, were of course suspended and superseded by it. [153 U.S. 155, 168] But as an operative agreement, binding the action of the two states upon the subjects embraced, where not inconsistent with the constitution, its validity has often been recognized by their authorities. Neither of the governments has ever denied or repudiated its obligation, but, as in the present case and in all controversies between the states, it has been treated as of obligatory force.
In determining the effect of the prohibition of the clause in the sixth article of the confederation upon the validity of the compact, the observations of this court in the recent decision of the controversy between Virginia and Tennessee upon the meaning of the clause of the constitution of the United States which is similar, in one particular, to that in the articles of confederation, and broader in another, may be properly considered. The article of the confederation inhibits 'any treaty, confederation, or alliance' between two or more states without the consent, of congress. The constitution of the United States prohibits, without such consent, any agreement or compact of one state with another. In the case mentioned there was an agreement between the states of Virginia and Tennessee to appoint commissioners to run and mark the boundary between them, made without the consent of congress; and the question considered was whether the agreement was within the prohibition of the clause cited from the constitution of the United States, and we said:
So, in the present case, looking at the object evidently intended by the prohibition of the articles of confederation, we are clear they were not directed against agreements of the character expressed by the compact under consideration. Its execution could in no respect encroach upon or weaken the general authority of congress under those articles. Various compacts were entered into between Pennsylvania and New Jersey and between Pennsylvania and Virginia, during the confederation, in reference to boundaries between them, and to rights of fishery in their waters, and to titles to land in [153 U.S. 155, 171] their respective states, without the consent of congress, which indicated that such consent was not deemed essential to their validity. Virginia and Maryland were sovereign states, with no common superior and no tribunal to determine for them the true construction and meaning of its provisions in case of a conflict of opinion upon the subject. Each state was left to decide for itself as to their true construction and meaning, and to its own sense of the obligations of the compact for their enforcement. If, therefore, the congress of the United States, which, as said above, never complained of the compact of 1785, had interposed objections to its adoption or enforcement as being within the meaning of the terms 'treaty' or 'confederation,' or as establishing an alliance within the prohibition of the articles mentioned, yet it would not lie in either of the states that were parties to the contract to allege its invalidity on the subject. As said by Mr. Steele in his very able and elaborate opinion upon the construction of provisions of the compact given to the governor of Maryland, and which is referred to in the record, they cannot complain that there was in its adoption any breach of good faith towards themselves; and we may add, or any rupture by them of the league of friendship declared to be the object of the articles to establish.
In our judgment, the compact of 1785 was not prohibited by the articles of confederation. It was not a treaty, confederation, or alliance within the meaning of those terms as there used, and it remained as a subsisting operative contract between them, in full force, when the confederation went out of existence upon the adoption of the present constitution of the United States; and it was not affected or set aside by the prohibitory clause of that instrument. Its prohibition extends only to future agreements or compacts, not against those already in existence, except so far as their stipulations might affect subjects placed under the control of congress, such as commerce and the navigation of public waters, which is included under the power to regulate commerce.
As stated by counsel, stipulations as to riparian rights of fishery, and as to jurisdiction in and over waters lying between [153 U.S. 155, 172] the two states, remained as they previously existed, neither suspended or impaired.
We are therefore of opinion that the compact continued in full force after the adoption of the constitution, except so far as inconsistent with its provisions; and such we understand has been the clear declaration of the two states whenever they have been called upon to express their opinion upon the subject, and such is the concession of counsel. In the acts of both states, passed in 1874, designating arbitrators to ascertain and fix the boundary between them, the validity of the compact was affirmed in the declaration that 'neither of the said states, nor the citizens thereof, shall, by the decision of the said arbitrators, be deprived of any of the rights and privileges enumerated and set forth in the compact between them, entered into in the year 1785, but that the same shall remain to and be enjoyed by the said states and the citizens thereof forever.' Laws Va. 1874, c. 135; Laws Md. 1874, c. 247.
As justly observed, there could not be a more solemn and conclusive recognition and assertion-so far as the two states were concerned-of the continued existence and obligatory force of the compact than is contained in this language of both in appointing the arbitrators and designating the conditions upon which their award should be accepted. The states of Maryland and Virginia not only consented to the appointment of the arbitrators, upon the conditions mentioned, but their award was approved by both states and by an act of congress. That approval covered all the conditions and stipulations upon which the award was made, and renders the compact of 1785, the rights and privileges of which were to remain and be enjoyed by the states and the citizens thereof forever, thus consented to by congress, free from constitutional objections, if any that were valid had previously existed. The act of congress (20 Stat. 481-483) recited that arbitrators, duly appointed on the part of the states of Virginia and Maryland for the purpose of ascertaining and fixing the boundary between them, did proceed to examine into and ascertain the true line of said boundary, and [153 U.S. 155, 173] had made their award, which was set forth, and that that award had been ratified and confirmed by the legislatures of those states, respectively; and then enacted that the consent of congress was given to the agreement or award, and to each and every part and article thereof. That consent, taken in connection with the conditions upon which the award was authorized, operated as an approval of the original compact, and of its continuance in force under the sanction of congress. The consent of congress to any agreement or compact between two or more states is sufficiently indicated, when not necessary to be made in advance, by the adoption or approval of proceedings taken under it. Green v. Biddle, 8 Wheat. 85-87.
We proceed, therefore, to consider the clauses of the compact, upon the construction of which the present controversy must be determined.
The appellant, a citizen of Maryland, is under a judgment of imprisonment for not paying a fine and costs of prosecution imposed for unlawfully catching and taking oysters in the waters of Virginia in violation of its laws. That state is the owner of the navigable waters within its limits and the lands under them, holding them in trust for the public, and authorized to pass all necessary laws for the protection of the fish therein, whether floating or shell, and the punishment of any citizens of its own or other states for taking them against its prohibitions.
The oyster grounds of the state are of large extent, very productive, and of great value. Pocomoke sound is represented to have an area of 92 square miles, of which about 52 square miles consist of natural oyster rocks and beds, particularly adapted for the growth of the oyster. Many millions of oysters are the product from these rocks and beds each year. The business of taking them from the water and carrying them to the different markets of the country constitutes an extensive and profitable industry, giving occupation and support to several thousand people of the state and to their families, and furnishing an article of food extremely palatable and delicious to many thousands in other states. Great care [153 U.S. 155, 174] is taken in their culture and protection, and a vigorous police of the state is maintained to prevent their unlawful removal, or any encroachment with respect to them upon the rights of the state. The preservation of the oysters and of these rocks and beds, so well and peculiarly fitted for their increase, has been for many years a matter of special interest on the part of the state, and the act under which the appellant was indicted and convicted constitutes a part of its legislation for that purpose.
The contention of Maryland, as made by her counsel on behalf of the appellant, is that, by the true construction of the seventh and eighth sections of the compact of 1785, her citizens are lawfully entitled to possess and enjoy and exercise a common right of fishery, including the right to catch and take oysters in the Potomac river and in the Pocomoke river, including what is also called 'Pocomoke Sound,' which is alleged to be part of that river, and to constitute its month; and, further, that if her citizens do not possess such right of fishery in the Pocomoke river and Pocomoke sound, they cannot be subjected to trial in the courts of Virginia for the offenses charged to have been committed in those waters against the citizens of that state. We will briefly consider each of these positions.
The seventh section of the compact refers, so far as fishing is concerned, only to the Potomac river, and provides 'that the right of fishery therein shall be common to and equally enjoyed by the citizens of both states,' with the proviso that such common right shall not be exercised by the citizens of one state to the hindrance of the fisheries on the shores of the other state, and that the citizens of neither state shall have a right to fish with nets or seines on the shores of the other. It is conceded that the right of fishing, when not qualified, extends to the taking of both floating fish and shellfish. This concession, however, is of no importance as to fishing in the Potomac, as the offense charged in the case before us is limited to taking oysters in Pocomoke sound, to which no reference is made in the section in question.
The eighth section is equally free from any reference to the [153 U.S. 155, 175] offense complained of. Its language is that 'all laws and regulations which may be necessary for the preservation of fish, or for the performance of quarantine, in the river Potowmack, 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 of ballast, or giving any other obstruction thereto, shall be made with the mutual consent and approbation of both states.'
There is no ambiguity or obscurity in this language. It simply provides that necessary laws and regulations for the preservation of fish in the river Potomac, and for the performance of quarantine with respect to the river, and for preserving and keeping open the channel and navigation of that river and of the river Pocomoke within the limits of Virginia, by preventing the throwing out of ballast, or giving any other obstruction thereto, shall be enacted by the mutual consent and approbation of the two states. There is nothing in these provisions having any reference to fish of any kind in the Pocomoke river or in the Pocomoke sound, whether that sound be deemed a part of that river of otherwise. As observed by counsel, no clause of the compact having given any right to Maryland to fish in Pocomoke river, there was no reason why Maryland should be allowed to interfere in any way by legislation or regulation for the preservation of its fish.
The case of Hendricks v. Com., 75 Va. 939, decided by the court of appeals of that state, is cited as authorizing the contention that a right to fish in the Pocomoke river is given by the compact, equally with the right to fish in the Potomac. The language of the court in that case gives color to that view, but it is plain that the court of appeals fell into a mistake in its judgment from a misquotation of section 8 of the compact, upon which it relied. The language of the court is: 'By article eitht 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.' It then adds as its conclusion: 'The effect of this article is to give the state of Virginia concurrent [153 U.S. 155, 176] jurisdiction with the state of Maryland over the Potomac from shore to shore, and over that part of 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.' Turning to the eighth article of the compact, we find that it does not contain any language having reference to the preservation of fish in the Pocomoke river, and by this misquotation the error in the conclusion of the court followed. There being an error of citation, a decision founded upon the supposed correctness of the citation cannot be accepted as authoritative any more than a decision founded upon a mistranslation of a passage in an author will be followed when the mistake or error is discovered. There was no question before the court of appeals in the case cited relating to fishing in the Pocomoke river. We shall hereafter refer to that decision on another point, in which it is not open to any criticism.
The question whether Pocomoke sound is to be considered as part of Pocomoke river is immaterial in view of the conclusion we have stated, that the compact gives no right to the citizens of Maryland to fish in the waters of that river, and only refers to the river in providing that legislation or regulations preserving and keeping open its channel free from obstructions shall be enacted by the mutual consent and approval of the two states. But, owing to the earnestness with which the identity of the river and sound has been pressed, it is proper to state that, after careful examination of the documentary evidence offered on the subject, we are clear that the river and sound were, at the time the compact was made, and for many years preceding it, considered and designated as separate and distinct bodies of water, and after that date, down to what is termed the 'Black-Jenkins Award of 1877,' they never lost their separate and distinct character and designation. And we agree with the statement of the court below in considering this subject, that there is no map of these waters, and no joint official document, existing in relation to them, which has confounded the river with the sound, or claimed that the sound is the river or any part of the river [153 U.S. 155, 177] Pocomoke. The objection to the jurisdiction of the courts of Virginia to try the appellant for the offense charged does not find any support in the tenth section of the compact of 1785. That section only provides for the trial of citizens of Maryland in that state, where offenses are committed by them in Virginia upon citizens of that state. It was so held by the court of appeals of Virginia in Hendricks v. Com., above cited. The offense charged against the appellant, and for which he was tried and convicted, was one against the state of Virginia, and not one against and of her individual citizens. It was for catching and taking oysters in her waters, which were the property of the state, against her prohibitions, he being a citizen of Maryland.
The objections of the appellant to the jurisdiction of the county court of Accomack in rendering judgment against him being untenable, the judgment of the circuit court of the United States for the eastern district of Virginia, in refusing to discharge him from imprisonment for failure to pay the fine imposed upon him for a violation of the laws of Virginia and the costs of his prosecution, must be affirmed, and it is so ordered.
Mr. Justice HARLAN and Mr. Justice GRAY concur in the result.