The evening times. [volume] (Washington, D.C.) 1895-1902, 1900-12-18

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Charles F. Holland fled yesterday with
the clerk of the circuit court for Som
erset county his decision in the two cases
OF the State against Bishop S. Church and
William E. Gibson & Bro, oyster packers
at CrlsfeId, Nd, who were indicted by the
grand jury at the October term of the
circuit court for Somerset county with
failing to pay over to the Comptroller of
the State the tel of per cent per bush
el, as required by section IS of chapter $50
of the acts of 1900.
The cases were argued last week by
Henry ]. Waters for the State and Messrs.
Joshua ". Miles, P. L. D. Stamford, and
c.. P. Landlord for the defendants. An
agreed statement of facts was filed in
each case. IN the case against Gibson &
Bro. it was conceded that the cargo of
oysters was purchased by Gibson & Bro.
at Crisfeld, Md, and in the case against
Church il was conceded that the oysters
were purchased. paid for and delivered in
the State of Virginia by an agent of
Church and brought to his oyster house al
Crisheld to be used in his business OF
packing
II was. also conceded in both cases that
the inspector or measurer did not per
form the physical labor of measuring the
oysters, but superintendent the same. A
general demurrer was entered in both
cases by the counsel for the defendants on
the ground that the charge was not the
subject Of q criminal prosecution. The
court n Its decision overruIes this de-
murrer AMI says:
We hold that the demuFrers should be
overruled, as We are OF the opinion that
failure or refusal Of the buyer to pay the
1 cent per bushei on oysters sold within
the State when measurement is made and
certificates furnished as provided IN sec
ton So is made a misdemeanoT by sec
ton e. Of said act; the criminal proseeu-
ton by the State under section 50 is for the
punishment OF the violat0rs of the law and
is Independent Of the measure prescribed
IN section 5S for the collection Of the
charge or tax This is the clear intention
OF the Legislature. and its power TO make
such provision is beyond question and fire.
Qusntly exercised.
a fact common to both Of these cases is
the measureF did not measure the oysters
himself but only supervised the measure
ment. and this, it IS argued, is not suff-
Gent, as the neasurer, in express words,
is required to measure the oysters sold IN
his precincts. Notwithstanding this
phTaseolegy it would be unreasonable TO
suppose that the Legislature intended and
demanded that the measurer should
for such a construction would impute TO
the Legislature an intention &c demand an
impossibiIity, and this We cannot dc. We
hold that where q measurer ascertains the
number Of bushels OF q cargo or quantity
of oysters sold in his precinct. either by
measuring them himself or seeing them
measured, and has furnished the certff-
cate required ne has done all the Law re-
quires Of him.
The law applicable to the facts in the
Bishop S. Church case is, we think equal
" clear, when section 80 is viewed in its
criminal aspect as in this case. Church
sent an agent to Virginia to buy oysters
for him. 4 cargo was purchased. paid for
and delivered in that State and brought
TO his oyster house at Crisfeid to be used
in his canning business. The question is,
Were these oysters subject TO the charge
Of I cent per bushef under section IS Of
said act Of Assembly? In other words, did
the Legislature intend to impose q tax up
on oysters purchased elsewhere and i'm
ported into this State? The State fishery
police was created, and is maintained. for
the plain and only purpose of protecting
the oyster beds of the State, and all the
laws and regulations made by the Legis-
latuFe pertaining TO the oyster industry
have solely this end in view. We see in
every act of the Legislature the purpose
10 protect the oyster beds and to care for
and increase the supply Of oysters of the
State, and we search in vain for an in
tention expressed or implied IN any act TO
NEEDLE with or to affect the Importation
Of oysters into the State. Such an inten-
tion is altogether absent from the Ian
guage OF the act under consideration Sec
ton 81 provides for general meaSurers and
inspectors who shall have power and au-
thority over oysters sold in waters ada
cent to the ports for which they shall be
appointed.
'Section 5S provides for the appoint
Tnent from counties producing oysters for
packing purposes In the State Of measur-
ers and special inspectors, who shall
measure al oysters sold in their rAspec-
tive districts and furnish certificates TO
the buyer and tle seller Section 50 pro-
vides punishment for violators of these
sections and section 50. IN using this lam
guage the Legislature surely could not
have had IN mind oysters other than those
sold in the measurer's district for it
plainly contemplates the presence CT both
buyer and seller Therefore We must
conclude that oysters purchased and paid
for in another State and imported into
Maryland are not affected by this act, es-
peciAlly when considered In its criminal
aspect, and must find Bishop S. Church
not guilty OF q misdemanor in refusing TO
pay the charge OF 1 cent per bushei as
prescribed in section So on oysters bought
by him IN Virginia and brought to his
oyster house at Crisfeld, Nd. We VIII
add that in our opinion all oysters sold
within the state are SUBJECT 10 the charge
Of l cent per bushel, no matter whence
they come
BALTIMORE, Dec. 1S.-In commenting
on Judge Hollands opinion Attorney
General Rsyner said:
This opinion is very important one
do not think there can be any doubt as
to its correctness, In so far as 1t holds
that the failure to pay the tax is mis-
demaror under section 62 Of chapter $50
of tbs Acts of 1900
Il have already advised the State on
GERS to proceed by Indictment in cases of
this sort In reference to the second
point. the commander of the State fishery
force has had an opinion from me for
some weeks, that Il is not necessary for
the measurer physically to measure the
oysters, but that where the measurement
is made in his presence and he sees them
measured and approves OF the same and
signs the certificate, the require
ments of the act have been substantially
complied with. I think, therefore, the
court is perfectly right in this second
ruling.
In reference to the third ruling. that
oysters purchased In the State of Virginia
and brought to this State are not subject