McCready v. Virginia

ERROR to the Supreme Court of Appeals of the State of Virginia.

McCready, a citizen of Maryland, was indicted, convicted, and fined $500, in the Circuit Court of Gloucester County, Va., for planting oysters in Ware River, a stream in which the tide ebbs and flows, in violation of sect. 22 of the act of the assembly of Virginia approved April 18, 1874, c. 214, p. 243, Sess. Acts 1874. That section is as follows:--

'If any person other than a citizen of this State shall take or catch oysters or any shell-fish in any manner, or plant oysters i the waters thereof, or in the rivers Potomac or Pocomoke, he shall forfeit $500, and the vessel, tackle, and appurtenances.'

The Supreme Court of Appeals of the State affirmed the judgment below; whereupon the defendant sued out this writ of error.

Mr. Robert Ould for the plaintiff in error.

I. The legislation of Virginia is in violation of the second section of the fourth article of the Federal Constitution, which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'

1. Both at common law and under the statute, Virginia holds the beds of its navigable waters in trust for the common benefit of all its people or citizens.

2. Such beds being so held, the rights of the citizens of Virginia, which spring from citizenship, inure, by force of the Federal Constitution, to the benefit of the citizens of other States, even against a limitation in the State statute. Such limitation is void, because in derogation of Virginia's compact found in the supreme law. The Constitution, acting upon the grant in the State law in favor of the citizens of Virginia, and securing the same benefit to citizens of other States, nullifies the restriction in that law.

3. The State can fully and effectually regulate the use of its fisheries, and apply its police power to their management; but all such regulations must be in subordination to the Federal Constitution, and should apply to its own citizens as well as to those of other States.

4. The law as to shell-fish, so far as the right to use or appropriate them is concerned, is the same as that which applies to floating fish.

5. The right to plant oysters is distinct from the right to take or catch, and even if the constitutional provision does not secure the latter, it does secure the former, to the citizens of other States, as no abstraction of any property held by the State is involved therein.

6. The State holds its different kinds of property in different rights. It has its private property, which it can control as fully as the private citizen can his. It also has its public property, which its citizens and those of other States can use and enjoy but not appropriate, such as its public buildings and grounds. It also holds a third class of property, such as its floating and embedded fish, as to which there can be no use or enjoyment except in appropriation; and when the right of user by appropriation is given by the State to its own citizens, the Federal Constitution secures the same right to the citizens of the other States.

7. The constitutional provision applies to tangible property as well as to incorporal privileges, where the right to use or appropriate tangible property held by the State is conferred upon all its citizens.

8. If the right of planting oysters, when it is given to the citizens of a State, is not secured to the citizens of other States, by the word 'privilege' in the Federal Constitution, any punishment for planting them is excluded by the word 'immunity.'

The authorities for these positions are: Paul v. Virginia, 8 Wall. 180; Ward v. Maryland, 12 id. 418; Slaughter-House Cases, 16 id. 36; Moody v. Arnold, 1 Halst. 1; Martin v. Waddell, 16 Pet. 410; Smith v. State of Maryland, 18 How. 71; Den v. Jersey County, 15 id. 432; Pollard's Lessee v. Hagan, 3 id. 212; Somerset v. Fogwell, 5 Barn. & Cress. 883; Bagot v. Orr, 2 Bos. & Pull. 472; Watson v. Sampson, 8 Cush. 347; Lakeman v. Burnham, 7 Gray, 437; Peck v. Lockwood, 5 Day, 22; Preble v. Brown, 47 Me. 286; Smith v. Levinus, 8 N. Y. 472; Home v. Richards, 4 Cal. 441; 2 Black. Com. 39; Chapman v. Miller, 2 Speers, 783; Wiley v. Parmer, 14 Ala. 647; Crandall v. State, 10 Conn. 343; Compbell v. Morris, 3 Harr. & McH. 553, 554; Commonwealth v. Milton, 12 B. Mon. 219; Cooley's Story, sects. 1930, 1934, 1937.

II. The legislation is in conflict with the third clause of the eighth section of the first article of the Federal Constitution, which confers on Congress the power 'to regulate commerce with foreign nations and among the several States.'

The law of Virginia applies as well to oysters brought from a sister State as to those bought in Virginia and planted there. As to such foreign oysters, at least, it is in conflict with existing commercial regulations, and also with the laws of the United States relating to the coast trade. Those laws give to all citizens of the United States the same rights of traffic and intercourse. A statute which prevents a citizen of Maryland from devoting property to such uses in Virginia as any Virginian can devote similar property to is a regulation of commerce, whether the property be brought from Maryland or purchased in Virginia. A citizen of Virginia can purchase a cargo of oysters in Maryland or in Virginia and plant them in the waters of Virginia. A citizen of Maryland, if he purchases a cargo of oysters in Maryland or in Virginia, cannot plant them in the waters of Virginia. Here is not only inequality, but an interference with the exclusive commercial authority of Congress. Cooley's Story on the Const., vol. ii. pp. 2-23; Welton v. The State of Missouri, 91 U.S. 275.

Mr. R. T. Daniel, Attorney-General of Virginia, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.