ON DEMURRER TO PLEA.
Bond and Morris, JJ.
The defendants contend' that the plaintiffs’ demurrer to their plea to the amended declaration should be overruled, because they say that the declaration does not state a case within the jurisdiction of this court as between citizens of the same state. The declaration avers a trespass by the defendants, acting as state officers, claiming, fortheirjustificationinso acting, a state law which the declaration avers is void; because repugnant to the federal constitution. The defendants contend that these averments do not state a case raising that constitutional question, unless the plaintiffs further aver that the circumstances under which the trespass was committed were really such that the state law came into operation, and would have been a protection to the defendants if a valid law.
We are unable to see the force of this contention. The averments of the declaration clearly state a case in which the state officers claimed for their authority to do what would otherwise be a wanton trespass the protection of a state statute, and aver that the statute so relied upon is repugnant to the federal constitution, and therefore void. That constitutional ■question, therefore, lies at the threshold of the case stated by the plaintiff, and gives jurisdiction under the first section of the act of March 8, 1875. If it should appear at any time during the progress of the cause that the defendants did not claim to act under the authority of the state law, or that the constitutional-validity of that law is not really drawn in ■question, the court will have power to dismiss the suit as one not involving a controversy within its jurisdiction. The demurrer is sustained.
[597]*597ON DEMURRED TO REPLICATION.
Bond and Morris, JJ. To the amended declaration of the plaintiffs, filed October 2, 1886, the defendants have filed two pleas,—the first is not guilty, and the second is not guilty as to the arrest of the plaintiffs’ barges loaded with oysters, and the destruction of the oysters; and as to the residue of the alleged trespasses, the defendants say that the barges and oysters were lawfully seized by Lemuel Smoot, commanding the sloop Katie Hinds, of the state fishery force of the state of Maryland, for the buying and selling of oysters in said barges without having obtained a license as required by act of Maryland of 1884, c. 518. To the pleas of not guilty the plaintiffs have joined issue, and as to the residue of the second plea, setting up the Maryland act of 1884, in justification of the seizure of plaintiffs’ barges and oysters, the plaintiffs reply that their barges and oysters were not lawfully seized by Smoot, because the act of 1884 is not’valid under the constitution of the United States. To this replication of the plaintiffs to the residue of the defendants’ second plea the defendants have demurred.
The avowed object of the defendants in filing this demurrer is to call to the attention of the court the alleged insufficiency of the declaration, which defendants claim is the first error in pleading, and which declaration they contend is insufficient, because it does not allege that the plaintiffs had obtained'a license to buy or sell oysters in Maryland, contending that so much of the Maryland act of 1884, c. 518, as requires a license for buying or selling oysters, is separable from the requirement of a license to carry oysters, and is not affected by the objections which may apply to the requirement of a license to carry oysters over the navigable waters in Maryland. We do not so think; and it seems to us that the state law requiring a license to buy and sell oysters must be held invalid, so far as it affects the plaintiffs, because it forbids the granting of a license to any person who has not been a resident of Maryland for 12 consecutive months preceding his application for such license. The validity of the requirement with regard to catching oysters is not drawn in question in this suit. ■
The contention of the defendants that the plaintiffs were required to take out a license before dealing in oysters in this state is based upon the concession that oysters, after they are caught, are merchandise, just as com is merchandise. The plaintiffs’ declaration avers that they wore buying oysters which had been already lawfully caught. They aver also, in the fourth count of the declaration, that they had applied for a license, but had been refused because of want of the required residence in Maryland. The law invoked as the justification of the seizure is, in our opinion, unconstitutional, because it denies to citizens of other states privileges and immunities granted to citizens of Maryland, in a matter to which that clause of the federal constitution is applicable. A state cannot discriminate, by tax or license, between the goods or merchandise of home manufacture as against those produced in other states. [598]*598Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber v. Virginia, 103 U. S. 345. Nor can a state impose a tax or license upon a non-resident trader different from that imposed upon a citizen or resident trader. Ward v. Maryland, 12 Wall. 418. We are also of opinion that this requirement of the law is void as a duty of tonnage. The act of 1884 requires that there shall be paid for every vessel engaged in buying or selling oysters upon the waters of the Chesapeake and its tributaries in Maryland a license of three dollars per ton of the vessel’s measurement. This- is a tax levied upon the vessel as an instrument used in a particular trade or branch of commerce, irrespective of the value of the vessel as property, and based solely and exclusively on its cubical contents. We entertain no doubt that this is a tonnage tax, within the ruling of the supreme court in Tax Case, 12 Wall. 217; Steam-Ship Co. v. Port-Wardens, 6 Wall. 31; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577.
The defendants’ demurrer to the plaintiffs’ replication to the residue of defendants’ second plea is overruled.
ON TRIAL ON MERITS.
This is an action of trespass, brought by the plaintiffs against the defendants, who constitute the board of public works of the state of Maryland, and Lemuel Smoot-, who commanded a vessel in the employ of the board of public works. The facts are that, while the plaintiffs were engaged on board their own vessels in buying, selling, and carrying oysters on the navigable waters of the state, the defendant Smoot seized their vessels, took their captains into custody, and detained them until they gave bail to answer a charge of violating certain statutes of the state, known as the “ Oyster License Law.” The detention of the captains of the plaintiffs’ vessels was of such a length of time that the oysters on board were, spoiled. The law under which the vessels were seized, and the captains held to bail, has been decided to be unconstitutional. The question now is as to the liability of the parties in this action, and the extent of it, which questions are submitted to the court, without the intervention of a jury.
The first difficulty that arises in the way of the plaintiffs recovering against the members of the board of public works is that they have offered no proof that they ever ordered the arrest and seizure of the plaintiffs’ captains and vessels.
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ON DEMURRER TO PLEA.
Bond and Morris, JJ.
The defendants contend' that the plaintiffs’ demurrer to their plea to the amended declaration should be overruled, because they say that the declaration does not state a case within the jurisdiction of this court as between citizens of the same state. The declaration avers a trespass by the defendants, acting as state officers, claiming, fortheirjustificationinso acting, a state law which the declaration avers is void; because repugnant to the federal constitution. The defendants contend that these averments do not state a case raising that constitutional question, unless the plaintiffs further aver that the circumstances under which the trespass was committed were really such that the state law came into operation, and would have been a protection to the defendants if a valid law.
We are unable to see the force of this contention. The averments of the declaration clearly state a case in which the state officers claimed for their authority to do what would otherwise be a wanton trespass the protection of a state statute, and aver that the statute so relied upon is repugnant to the federal constitution, and therefore void. That constitutional ■question, therefore, lies at the threshold of the case stated by the plaintiff, and gives jurisdiction under the first section of the act of March 8, 1875. If it should appear at any time during the progress of the cause that the defendants did not claim to act under the authority of the state law, or that the constitutional-validity of that law is not really drawn in ■question, the court will have power to dismiss the suit as one not involving a controversy within its jurisdiction. The demurrer is sustained.
[597]*597ON DEMURRED TO REPLICATION.
Bond and Morris, JJ. To the amended declaration of the plaintiffs, filed October 2, 1886, the defendants have filed two pleas,—the first is not guilty, and the second is not guilty as to the arrest of the plaintiffs’ barges loaded with oysters, and the destruction of the oysters; and as to the residue of the alleged trespasses, the defendants say that the barges and oysters were lawfully seized by Lemuel Smoot, commanding the sloop Katie Hinds, of the state fishery force of the state of Maryland, for the buying and selling of oysters in said barges without having obtained a license as required by act of Maryland of 1884, c. 518. To the pleas of not guilty the plaintiffs have joined issue, and as to the residue of the second plea, setting up the Maryland act of 1884, in justification of the seizure of plaintiffs’ barges and oysters, the plaintiffs reply that their barges and oysters were not lawfully seized by Smoot, because the act of 1884 is not’valid under the constitution of the United States. To this replication of the plaintiffs to the residue of the defendants’ second plea the defendants have demurred.
The avowed object of the defendants in filing this demurrer is to call to the attention of the court the alleged insufficiency of the declaration, which defendants claim is the first error in pleading, and which declaration they contend is insufficient, because it does not allege that the plaintiffs had obtained'a license to buy or sell oysters in Maryland, contending that so much of the Maryland act of 1884, c. 518, as requires a license for buying or selling oysters, is separable from the requirement of a license to carry oysters, and is not affected by the objections which may apply to the requirement of a license to carry oysters over the navigable waters in Maryland. We do not so think; and it seems to us that the state law requiring a license to buy and sell oysters must be held invalid, so far as it affects the plaintiffs, because it forbids the granting of a license to any person who has not been a resident of Maryland for 12 consecutive months preceding his application for such license. The validity of the requirement with regard to catching oysters is not drawn in question in this suit. ■
The contention of the defendants that the plaintiffs were required to take out a license before dealing in oysters in this state is based upon the concession that oysters, after they are caught, are merchandise, just as com is merchandise. The plaintiffs’ declaration avers that they wore buying oysters which had been already lawfully caught. They aver also, in the fourth count of the declaration, that they had applied for a license, but had been refused because of want of the required residence in Maryland. The law invoked as the justification of the seizure is, in our opinion, unconstitutional, because it denies to citizens of other states privileges and immunities granted to citizens of Maryland, in a matter to which that clause of the federal constitution is applicable. A state cannot discriminate, by tax or license, between the goods or merchandise of home manufacture as against those produced in other states. [598]*598Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber v. Virginia, 103 U. S. 345. Nor can a state impose a tax or license upon a non-resident trader different from that imposed upon a citizen or resident trader. Ward v. Maryland, 12 Wall. 418. We are also of opinion that this requirement of the law is void as a duty of tonnage. The act of 1884 requires that there shall be paid for every vessel engaged in buying or selling oysters upon the waters of the Chesapeake and its tributaries in Maryland a license of three dollars per ton of the vessel’s measurement. This- is a tax levied upon the vessel as an instrument used in a particular trade or branch of commerce, irrespective of the value of the vessel as property, and based solely and exclusively on its cubical contents. We entertain no doubt that this is a tonnage tax, within the ruling of the supreme court in Tax Case, 12 Wall. 217; Steam-Ship Co. v. Port-Wardens, 6 Wall. 31; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577.
The defendants’ demurrer to the plaintiffs’ replication to the residue of defendants’ second plea is overruled.
ON TRIAL ON MERITS.
This is an action of trespass, brought by the plaintiffs against the defendants, who constitute the board of public works of the state of Maryland, and Lemuel Smoot-, who commanded a vessel in the employ of the board of public works. The facts are that, while the plaintiffs were engaged on board their own vessels in buying, selling, and carrying oysters on the navigable waters of the state, the defendant Smoot seized their vessels, took their captains into custody, and detained them until they gave bail to answer a charge of violating certain statutes of the state, known as the “ Oyster License Law.” The detention of the captains of the plaintiffs’ vessels was of such a length of time that the oysters on board were, spoiled. The law under which the vessels were seized, and the captains held to bail, has been decided to be unconstitutional. The question now is as to the liability of the parties in this action, and the extent of it, which questions are submitted to the court, without the intervention of a jury.
The first difficulty that arises in the way of the plaintiffs recovering against the members of the board of public works is that they have offered no proof that they ever ordered the arrest and seizure of the plaintiffs’ captains and vessels. While it may be admitted that an unconstitutional.statute will offer no protection to the officer who acts under it, it is nevertheless necessary to show that he advised, directed, aided, and abetted the conduct which constitutes the cause of action. So far as this case is concerned, there is no such proof. It is left to inference, merely, that because the officer who made the seizure was an officer of the state under'the control of the board of public works that therefore they directed him to make the seizure. It is not shown that the board of public works ever considered the matter, or how many of them united in a resolution to direct the captain, Smoot, to-make the seizure. Surely the members of [599]*599the board who voted against it aro not liable, and without proof we cannot infer that all or any one consented.
Smoot, clearly, is guilty of a trespass. He took and detained the plaintiffs’ property without warrant of law. He supposed he had the authority and warrant of law, but he was mistaken; and the next question is, what is the measure of damages? The plaintiffs seek exemplary damages, but we do not think that they are entitled to such damages. There was nothing vindictive, harsh, violent, or even rude in the manner- of the seizure and arrest. It was made, if we may say so, with urbanity, and while it occasioned the plaintiffs loss, it did no injury to -their feelings, however sensitive. We think the true measure of damages is the actual value at the place of seizure of the cargo of oysters lost, the expenses paid by the plaintiffs to their crews, and tug, which they would not have had to pay had the seizure not been made, the intention being to make the plaintiffs entirely whole, and nothing more. We ñnd for the defendants, except the defendant Smoot. As to him, we find for plaintiffs, and assess their damages at §700.