Dean v. Slacum

The General Assembly, by chapter 495 of the Acts of 1924, added section 185CC to article 10 of the Code of Public Local Laws, title "Dorchester County," providing as follows: "Any owner of riparian rights on any waters in Fishing Bay in Dorchester County, lying north of a line drawn from Roasting Ear Point to Fishing Point, shall by virtue of such ownership be first entitled to make a choice of the set or position in front of the property of which he or she is the owner of the riparian rights therein, for fish net or nets he or she may desire to there set or place, provided that if said owners of said riparian rights do not avail themselves of the privilege of locating the position or positions where they desire to place or set nets or weirs each year within twenty days after receiving notice from any other person or persons who may desire to locate their nets or weirs in front of said riparian owner's property, then it shall be lawful for said person to locate or place their nets or weirs in front of said property."

Section 185C, as amended by chapter 316 of the Acts of 1914, provides, in part, that it shall be "unlawful in the waters of Fishing Bay, south of a line drawn from Black Water Point to Irish Creek, and north of a line drawn from Roasting Ear Point to Duck Island Point, to set any weir more than four hundred yards from shore, or to set any line of gill nets or weirs closer to each other than four hundred yards * * *."

The appellee is the owner of a tract of land fronting on Fishing Bay within the limits defined by the statutes from which we have quoted. With a view to the exercise of his riparian rights under Section 185CC, he prepared for the erection of several weirs in the bay along the shore line of his property, and had purchased a large quantity of materials to be used for that purpose, when the appellant, without giving the notice required by the law, constructed a weir, and was proceeding to erect another, in Fishing Bay, opposite the appellee's land and within four hundred yards of the shore. In this suit for a mandatory injunction to compel the removal of the appellant's weirs, the question, raised by the demurrer to the bill of complaint, is whether the statute conferring the riparian fishing right asserted in the bill is constitutional. The appeal is from an order overruling the demurrer.

The first contention is that the title of the act does not conform to the provision of section 29 of article 3 of the State Constitution, that "every law enacted by the General Assembly shall embrace but one subject and that shall be described in its title." The statute is entitled as follows: "An Act to add a new section to article 10 of the Code of Public Laws of Maryland, title ``Dorchester County,' said section to be known as section 185CC, to follow immediately after section 185C of said article, and to be under sub-title ``Fish.'" There is no difficulty in holding this title to be sufficient. It has been repeatedly decided that a correct title description of an act by Code article and section designations is a compliance with the constitutional requirement. Todd v. Frostburg, 141 Md. 693;Key v. Key, 134 Md. 418; Ruggles v. State, 120 Md. 564;Worcester County v. School Commissioners, 113 Md. 307; KinganPacking Asso. v. Lloyd, 110 Md. 619; Anne Arundel County v.United Railway Co., 109 Md. 377; Barron v. Smith, 108 Md. 317;Himmel v. Eichengreen, 107 Md. 610; Garrison v. Hill,81 Md. 551; Lankford v. Somerset County, 73 Md. 118; German BuildingAssoc. v. Newman, 50 Md. 62. The title here in question describes the act as incorporating a new section, with a specified number, in the Code article relating to Dorchester County, and under a sub-title indicating accurately the general subject of the legislation. It was not necessary that the title should be more explicit in its description of the statute. The omission of the word "Local" from the reference to the Code in the title could not have caused any doubt that the Code of Public Local Laws was meant, in view of the other descriptive terms employed.

It is further contended that the act violates the constitutional right of citizens to the equal protection of the laws. There is said to be an invalid discrimination against the general public, and in favor of riparian land owners, with respect to the privilege of constructing weirs in the waters of Fishing Bay. The pre-emption by any one of a part of the bay for that purpose excludes others from the exercise of a similar privilege at the same point during the period of the occupation, but the opportunity of every citizen to acquire or enjoy such an individual advantage is said to be protected by the Federal and State Constitutions from any legislative interference which is designed to benefit a particular class of citizens. This theory, if sound, would be equally available against a number of existing laws giving priority of tide-water fishing rights to riparian proprietors, the following statutes having such effects are cited in the appellee's brief: Acts of 1922, ch. 207; 1920, ch. 361; 1910, ch. 141; 1906, ch. 527; 1890, ch. 89; 1874, ch. 219; 1872, ch. 292; Code, art. 39, secs. 68, 70. But in our opinion the statute now under consideration is free of constitutional objection. It was passed in the exercise of the State's power to regulate and control its fisheries, consistently with the right of navigation. McCready v. Virginia, 94 U.S. 391; Smith v.State, 18 Howard, 75; Hughes v. State, 87 Md. 298. The Legislature could prohibit altogether the use of fish nets or weirs in Maryland waters. State v. Applegarth, 81 Md. 293. It can prescribe the conditions under which such fishing methods may be used. The privilege can be validly restricted to the citizens of a county with respect to the waters within its boundaries.Cox v. Revelle, 125 Md. 587. It was held in Phipps v. State,22 Md. 380, that a statute was valid which authorized, upon certain conditions, "any citizen of any county bordering on the waters of the State, to locate and appropriate within the waters thereof any area not exceeding one acre, for the purpose of depositing and bedding oysters * * *." The constitutionality of the statute was challenged, as stated in the opinion, "on the ground that it confers special and exclusive privileges inconsistent with, and in derogation of the common right of free fishery in the waters of the State." But the Court said: "The power of the Legislature to authorize the erection of wharves and the reclamation of land from the water, for the purpose of encouraging navigation and commerce, has never been questioned, notwithstanding the effect has been to confer privileges and advantages wholly private and exclusive in their character. And there appears to be no substantial reason why it may not, in like manner, grant privileges, affording particular and exclusive benefits, for the purpose of increasing generally the product and value of the common right of fishery."

A different principle is sought to be applied to this case on the theory that the priority of weir privilege given by the statute to the riparian owners is not conducive to the preservation of the fisheries for the public benefit. It may, however, be the policy of the statute, by stimulating activity on the part of the owners of riparian lands in the use of the adjacent bay fisheries, to increase their product for public consumption. But the immediate and evident purpose of the act is to regulate the location of stationary nets and weirs in the waters of the bay. As the employment of such fishery methods by the public is permitted, and involves the exclusive use, for considerable periods, of particular water areas, it was competent for the Legislature to regulate such appropriations of portions of the State's domain. No one is prohibited by the statute from placing weirs in the bay, but with respect to the question of priority among competitors for the same locations, the provision that one owning the neighboring shore should have preference does not seem unreasonable. In giving to riparian owners the initial option to select and occupy weir locations in front of their properties, the act preserves equality among the members of that class of land owners, and makes no arbitrary discrimination against other citizens. It leaves to the general public the unrestricted privilege of fishing in the waters of the bay except by the use of weirs within four hundred yards of the shore and at points occupied by the weirs of the riparian land owners. In our opinion the act does not disregard any constitutional limitation in conferring upon such owners the priority of privilege which it defines, and we agree with the lower court in its conclusion that the statute is valid.

Order affirmed, with costs, and case remanded.