Wharton v. Wise

This case comes before us on appeal from an order of the circuit court of the United States for the eastern district of Virginia, dismissing a writ of habeas corpus, sued out for the discharge of the appellant, a citizen of Maryland, from a judgment of imprisonment until a fine should be paid, imposed upon him by the county court of Accomack county, in that state, upon a conviction of violating a law of Virginia in taking oysters, contrary to its prohibitions, from Pocomoke sound, within her limits. An act of that commonwealth, approved in February, 1892, provides that if any person, other than a resident of the state, 'take or catch oysters or other shellfish in any of the waters of the state, he shall, upon conviction thereof, be fined five hundred dollars.' Acts of the Assembly of Virginia, 1891-92, c. 363, § 10, p. 603.

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or ratified by the general assembly of Maryland; that by the compact of 1785 between those states, which had never been repealed or annulled, but was still in effect, and operative, the court had no jurisdiction to try the defendant for the alleged offense, Pocomoke sound, mentioned in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 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 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.

[Argument of Counsel from pages 158-162 intentionally omitted]

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.