. DIZE V. LLOYD.
651'
The same court, in "And, in considering t.he grounds on which it is sought to repel the bar of this decree, we must disregard at once all that do not a.ttack the jurisdiction of the court over the cause or the. parties. It cannot be a.ssailed collaterally for mere error...· Oolt v. Oolt, 111 U. S. 566, 4 Sup. Ct. Rep. 553. The following is from a decision of the Virginia court of appeals: "No matter how irregular or how erronE'OUS may have been the proceedings in that suit, they cannot be inq uired into in this. That would be to assail collaterally the jndgment of a court of record which bad jurisdiction of the parties and of the SUbject-matter. This can never be done." Lancaster v. Wilson, 27 Grat. 624. See, also, Woodhouse v. Fillbates, 77 Va. 317; Wimbish v. Breeden, 324; Wilcher v. RobertRon, 78 Va. 602; Hill v. Woodward, Id.· 765; Avgnov. Schmidt, 113 U. S. 293, 5 Sup. Ct. Rep. 487; Cox v. 'l'hO'flUZs' Adm':!:, 9 Grat. 323; Cline's Heirsv. Catron, 22 Grat. 378; Wilson v. Smith, rd. 493. In the light of this unbrokeu line of decisions it is not in the power of this court to pass upon the validity of the deed from the plaintiff to her brother, John H. Scott, conveying to him her interest in her father's estate. That deed was in evidence in the suit of Scott 11. Scott's widow and heirs in the circuit court of Smyth county. Whether it was accompanied by other testimony the record does not show, and it is immaterial. That court decided that the deed conveyed the plaintiff's interest in her father's lands to John H. Scott, decreed the assignment of the same to said Scott, which'was done, and the assignment confirmed by the court. Whatever errors were committed by that court were matters to he corrected on appeal. Its decisions cannot be called in question in this collateral way. The plaintiff's bill must be dIsmissed. This concluflion of this cause is not only in accordance with legal principles, but is in harmony with the demands of substantial justice. The plaintiff has once received pay for the land which she claims in this suit. It would be a great hardship on the present owners of the land to require them to surrender it to the plaintiff, they being innocent purchasers for value without notice. A decree will be entered dismissing the bill, with COtits to the defendants.
DIZE
".LLOYD
et al·
.(Oircuit Oourl, D. Maryland. November 21, 1888.)
1.
l!'JsRERtES-OYSTER DREDGING-LICENSE-CONSTITUTIONAL LAW-TONNAGB
. . The Maryland oyster law of 1886, c. 296, exacting a license fee of three dollars per ton for every vessel employed in dredging for oysters in the waters of the st",te, held not a tonnage tax, bQt a lawful compensation, demanded by the state as the proprietor of the oyster-beds for the privilege of tak,jng the oysters, whi-ch it is reasonable to rate according to the size of the vessel used.
...
652 2. SAMB.
FEDERAL REPORTER.
A section of the law enacts that having instruments for oyster dredging on board any vessel within the state, without having first obtained a license, shall be prima facie evidence of an intention to use the vessel con· trary to the law. Held, that this was a. reasonable provision, required for the proper enforcement of the law, and was not a regulation of commerce, nor a prohibited interference with the freedom of navigation.
(S1lllab'/J,8 by the Oourt.)
At Law.
Action for trespass.
T. S. Hodson and Johnson &; Johnson, for plaintiff.
WiUiam. Pinkne;y Whyte, Atty. Gen., for defendants. Before BOND and MORRIS, JJ. MORRIS, J. This is an action of trespass brought against certain officers of the state of Maryland composing the board of public works and the state fishery force, for seizing an oyster vessel belonging to the pl!,-intiff. The plaintiff alleges that his vessel was duly enrolled and licensed under the laws of the United States, and .was engaged in navigating the Chesapeake bay, when she was seized by orders from the defendants in the enforcement of the provisions o(an act of the general assembly of Maryland. approved April 7, 1886, c. which law the plaintiff asSerts is contrary to the constitution of the United States, and void, in that it exacts a duty upon tonnage, and also attempts unlawfully to ulate commerce. The'question of the constitutionality of the law is raised by a demurrer to the deferidant's plea alleging the plaintiff's nondompliance with the act of 1886, c. 296, and setting up as a justification of the trespass the provisions of that law, making it their duty to arrest all persons, and to seize all boats violating its provisions. Similin questions were before us in the Case of Insley, 33 Fed. Rep. 680, apd in the case ofllooth v. Lloyd, Id. 593. In those cases it was held that the act of 1884, c. 518, which exacted a license fee of three dollars per ton for every vessel engaged in buying, selling, or carrying oysters in the vtraters of Maryland, was an attempt to a tonnage tax within the prohibitiol1()f the federal constitution; and we also. held. that, as that 19;w provided that no such license should be granted to any but persons who had been for twelve months residents of Maryland. it was an unconstitutional discrimination against non-residents of Maryland, in denying them the right to buy, sell, or carry an article of merchandise. We are unable to see that the law of 1886, c. 296, which is now invoked, is open to any such It provides that no boat shall be used in catching oysters in any oLthe'waters of Maryland, in which taking oysters is by law permitted, unless the owner has been a resident of the state for twelve months, and unless he shall.payto theatate at the rate of three dollars per ton of the boat's measurement for the privilege of dredgi»g..for the whole season from the 15th of 0ctober to 'the 1st of April, or atthe rate of fifty cents per ton per month for the remainder of the seaspn,ff the .license is issued after the season hag begun. The supreme court of the United States has put it beyond debate in the cases of Smith Maryland, 18 How. 71; and U.S. 391, that
DIZE tI. LLOYD.
653
the state is the owner of the oyster-beds in its waters t and can rightfully prohibit the taking of oysters from them by any but its own citizens, and can regulate the times, instruments t and conditions for taking them, and make valid laws for the seizure and forfeiture in her own courts of any vej;sel, although enrolled and licensed under the laws of the United States t if such vessel be the instrument used in the violation of such laws. It is not to be questioned, also, that, as a condition of permitting her own citizens to take the oysters, she may exact such compensation from them as the legislature may decide. ' The sole contention, as we understand it, upon this branch of the present case is that, because the amount of the compensation exacted by the state is measured and determined by the tonnage of the boat used in dredging, it is thereby converted from a constitutional exaction ,fora special privilege into an unconstitutional tonnage tax on vessels, We ,are not able to see that this contention is in with either reason or authority. It is the substancewe are to consider, and not .merely the name. If the exaction is in reality .but.a price paid. to the state the gauged by the capacity of the instrument employed in tak.Ing them, then the fact that the instrument is. an enrolled and licensed :vessel of the United States cannot the compensation so exacted a tonnage tax. While engaged in dredging, the vessel is 'lloJeng{lgyd in cornmerce, butis an instruru,ent for oysters; and; as .the oysters are the, property of the state, and she may lawfully exact payment for them, there is nothing more reasonable than that the e:;fiction should be proportioned to the capacityofthevesslll. It has nothi.ng to .do with. COmmerce or navigation, and cannot be said tQ be a ta:li:: ilpon either.. It was pointed out by the sn,preme court in Packet (Y,q. J(eokuk t 9.5 U. S. 80, that a charge by a state or city, although regulated llccording to the tonnage of a vessel, did not make it a tonnagetaiX, provided it was in reality a compensation f9r a special benefit conferred, which it was reasonable to estimate. by that standard. The. court .saiq: . "When compensation is demanded for the use of a wharf, the assertion, not of sovereignty, but of a right of property. * wOlild claim. that a demand for the use of a dry dock for a demand for towage in a harbor, would be ademand of matter whether t.he dock was the propert;yofa private individual orof a State, .and no matter wnetherproportioned or not to the size or tonnaga of theV'esol:\el." ':. ,
, And, in f Tran8portation 00. v. Park«rsburgt 107 U.8.699, 2 SUp. Ct'. Rep. 732, speaking of a charge by acHy' forwbarfage, t1 1p:'\upremec6titt again said: cording to the size or capacity of the vessel or otherwise, has nothing to do with its essential nature." In Packet C.o. v. Catlettsburg, 105 U. S. 561, the court said: "If, however, the trustees of the town had a right to compensation for the use of the improved landing or wharf which they had made. it is no objection to the ordinance fixing the amount of this compensation that it was measured by the size of the vessel, and that its size was ascertained by the tonnage of "It obvious that the mode of rating rhe char!Ze; ..
.·
-Wh6tll'ert ac-
each vessel., ,It is idle. after the deciSions we have made. to call this a tax upon tonnage." It appears, therefore, most clearly that it is no objection to the Maryland oyster law of 1886 that it adopts the tonnage ofthe vessel employed in dredging as the most reaRonable and convenient by which , to determine the' rate ofcharge to be made for the privilege of taking the oysters which are the property of the state. the constitutionality of the law is The other objection urged directed against the provisions for its enforcement. By section 4 it is enacted that it shall not be lawful, prior to' obtaining a license, to affix any crank; winder, or other machinery for operating scoops, SOl'apes, or dredges, or to have them on board with intent to affix them to any vessel in this state, for use in taking or catching oysters; and that the fact of having such implements on board shall be prima facie evidence of intent to use them contrary to law. The reasonable intendrrient of this section is that it shall not be lawful, before obtaining an oyster-dredging license, to have the implements for dredging on board any vessel in this state with intent to use them for taking oysters; and the having them on board without such a license shall be prima facie evidence of the intent to use them. The right of a state to exact a license to dredge in the waters of the state being conceded, the only question is whether this is a reasonable provision forthe enforcement of that right, or is it an encroachment upon the exclusive power of congress to regulate commerce with foreign nations,and among the several states, or does it interfere with the freedom of such commerce? It is urged that under this section an o.yster vessel of Virginia navigating the Chesapeake might be seized simply because she had dredging implements on board, and have her voyage interrupted and her owners subjected to the expense of proving her innocence. This iaa possible case, hut it' is to be considered that no law can be enforced without the possibility of hardship to some unjustly suspected person.' Similar provisions enacting that certain facts shaUbe prima facie evidence <if intention or guilt are found in many penal statutes. and particularly those for the protection of game, fish, or oysters. There is nothing unusual, 'unnecessary, or unreasonable in such an enactment. To require the CQUrt to declare such a provision an unconstitutional interference with the freedom of interstate commerce, it should be clearly established that the law must result in such unjustifiable interference, not that by possibility it might so result. In our judgment the demurtershpuld be overruled.
BOND, J., concurred.
STATE
v.
BALTIMORE & O. R. CO.
655
SUTE,
to Use of
BLACK, 'V. BALTrilORlil
& O. R. Co.
(Olrcuit (J()urt, D. MOI1'1Jland.
November 13,1888.)
mURA'Nc:m-RAlLROAD RELIEF ASSOCIATION-By·LAW-PuBLIC POLICY.
The widow of an employe of the B. & O. R. Co., after the death of her husband, released any claim she might have against the railroad company for causing his death. for the purpose of enabling her husband's mother to obtain, from the B. & O. Relief Association. payment of an amount of life in· surance, which. under its constitution, was payable only on condition that aU persons entitled to sue the railroad company for his death should release the railroad company from liability. Held. in a suit by the widow against the railroad company, that the release was not invalid as against public policy. ·
·(8yllab'U8 by tM Uourt.)
At Law. Action for damages. On demurrer to replication. J. H. Keene, Jr., and A. Stirling, for plaintiffs. Cowen « Or088 and George Dobbin Penniman, for defendant. MORRIS, J. This is an action brought by the widow of Cassius Black, who was an employe of the Baltimore & Ohio Railroad Company, 10 recover damages from the railroad company for causing his death by negliKence. The action is given by article 67 of the Maryland Code, which directs that it shall be brought in the name of the state of Maryland for the use of the wife, husband, parent, and child of the person whose, death has been caused, and within 12 months after the death. :.rhe defendant railroad company pleads a release under seal, ex;ecute<i by both the mother of the deceased and by his widow; the equitable iiff in this case, in which release it is recited that in consideration of .$1,000, paid to them by the Baltimore & Ohio Relief Association, rl'llease and discharge both the' relief association and the Baltimore & <>hioRailroad Company from all claims and demands whatsoever arising from the said death. To this plea the plaintiff has replied that, the release pleaded was obtained by fraud, and on.this replication the defend.ant has j(lined issue. The plaintiff has filed also five other repli()ations, to which the defendant has demurred, and it is the questions of law raised by these. demurrers which are now to be passed upon. Some, of these replications deny the facts recited in the release, but it is clear that, .as the release set out in the plea is a technical release under seal, the plaintiff cannot be heard to allege or allowed to prove to the contrary of what she has solemnly admitted under hand and seal. So long as the release stan<;lsunassailed for fraud, the plaintiff is concludecLfrom denying the facts recited in it.. The other replications demurred to proceed upon the theory that the release is void because obtained as the result .of a which should be held illegal as against that rule of public policy which forbids an employer contractiog with an empwye for -emption from. liability for his own negligence. The constitution of the Baltimore & Ohio Relief Assvciation, a corporation chartered by the Ma.:ryland legislature, and which the employes of the Baltimore & .Ohio Railroad Company are compelled to become members of) provides that