Port Tobacco times, and Charles County advertiser., 1886-10-08
The Oyster Question.

The recent decision of Judge Stone In
the Circuit Court at Leonardtown, declar
ing the Act of Assembly restricting the
rights of citizens of Calvert, st. Mary's and
Charles counties to take oys ers in the Pa
tuxent river to certain specified limits res
pectively to be unconstitutional and in
valid, to which brief reference was made
in our last issue, is topic much discuss
ed in oystering circles. This has been for
several past sessions somewhat vexed
question in the Legislature and good
deal of dispute and contenion has occur
ed between the representatives, from the
three interested counties regarding the
limits in which the citizens of each county
should be permitted to take the bivalves.
The Legislature seems never to have en-
power to legislate in the matter and the
effect of the acts passed have been to al
most exclude the citizens OF Charles from
the disputed waters, while as between St.
Mary and Calvert, the allotment of waters
has not been of satisfactory character.
The decision was evoked by an arrest
under the law of citizen of Calvert for
taking oysters on the St Mary's side of
the channel, the case coming up on an ap-
peal from magistrate. Judge Stone
holds that the common law right of all the
people of the State to take fish in common
from the tide waters of the State has never
been surrendered by the State constitution
and is sill preserved to all the peop'e OF
the State regardless of what county they
may reside in. The court decides that
the citizens of Calvert, st. Mary's and
Charles counties enjoy the privilege OF
free fishery in common in the whole of the
navigable portion of the Patuxent and
that the act of assembly making it penal
for the citizens of one of these counties to
take oysters in the waters of the river con-
tiguous to another county is void for un-
constitutionality.
While the decision in its terms only
purports to decide as between the citizens
of Calvert and st. Mary's counties the
practical effect of it is as we have indicat-
ed above. In fact the principle adjadica-
ted, if sustained by the Court of Appeals,
will go still further and admit the citizens
of all other counties of Maryland, and per
haps of the other States of the Union, to
the common right of free fishing in the
tide waters OF the Patuxeur. The deci-
sion is thus quite far reaching in its effect
and will bring about kind Of revolution
in the oyster industry of the waters of the
Patuxent
There seems to be no doubt of the cor
rectness of the decision. By the English
common law, which passed by inheritance
to the American colonies. the right Of free
fishery in all the naviga able waters of the
State is public right common to all the
citizens of the State. There appears to be
nothing in the Maryland constitution
abridging or impairing this public right.
or conferring power in the Legislature TO
do so. Counties are merely artificial,
quasi political divisions OF the territory
of the State for municipal purposes and
the more easy execution of the laws. II
the common law public right of free fish
cry did not exist iu the waters OF tur Ia.
tnyenf as one adiunct of its nayiua hla
character aud flowing tides, then the in
dividual rights Of the adjacent land pro
prietors would eutile them to the exclu-
sive right of fishing to the 'thread" or
middle of the stream. Any legislation
seeking TO limit the right of tishing navi-
gable rivers to the citizens of its border
counties seems to be without any eonsti-
tutional authority or precedent