
    *McCready v. The Commonwealth.
    January Term, 1876,
    Richmond.
    Statutes — Planting Oysters — By Nonresidents — The act of March 14, 1872, in relation to oysters, was repealed by the act of April, 1878, on the same subj ect. And by this last act nonresidents of the state were not prohibited from planting oysters in the waters of Virginia.
    At the March term 1874 of the county court of Gloucester, J. W. McCready was indicted, for that he did on the 1st of June 1873, and from that day forward until the 1st of March 1874, in the said county, he being then and there other than a resident of this state, unlawfully plant oysters in the waters thereof, against the statute, &c.
    The defendant appeared and moved the court to quash the indictment; but the motion was overruled. He then demurred; but the court overruled the demurrer. And he then, with the leave of the court, withdrew his demurrer, and pleaded not guilty; on which issue was joined.
    On the trial the jury found the defendant guilty, and assessed his fine at five hundred dollars; and the court rendered a judgment thereon. He then obtainéd a writ of error to the circuit court, where the judgment was affirmed; and he thereupon applied to this court for a writ of error which was awarded.
    Ould & Carrington, for the appellant'.
    The Attorney General, for the commonwealth.
    
      
       Statutes — Construction.—See Somers’ Case, 97 Va. 761, 33 S. E. Rep. 381; and Boggs v. Com., 76 Va. 995, both citing the principal case with approval.
    
   * Anderson J.,

delivered the opinion of the court.

This is an indictment against the plaintiff in error, being other than a resident of this state, for unlawfully planting oysters in the waters thereof against the statute, on the 1st day of June 1873, and on divers other days, from that day forward, until the 1st day of March 1874.

By section 2, of the act approved March 14, 1872, no person, other than a resident citizen of this state, shall catch, take, or plant oysters in the waters thereof, &c. And if any person other than such- citizen of this state, shall catch, take or plant oysters in the waters thereof, he shall be deemed guilty of a misdemeanor, and upon, conviction thereof shall be fined not less: than $200 nor more than $500, &c.

By the 22nd section of the act in force-April 1st, 1873, it is enacted that it shall not be lawful for any non-resident of this, state to take or catch oysters or other shell fish: and penalties are denounced against the offender. But it is not made unlawful by this statute for a non-resident of the state to plant oysters in the waters thereof; nor is any penalty imposed on a non-resi-. dent for planting them in the waters of the-state. And it is provided that this act shall take effect and be in force from and after the 1st day of May 1873. The offence charged in the indictment is charged to-have been committed on the 1st of June 1873, and days subsequent: consequently while the act aforesaid was in force. And by virtue of this act, as we have seen, the planting of oysters by a non-resident of the state is not an offence. And unless the previous act of 1872 was in force, the indictment could not lie.

The court is of opinion that the act of 1873 was evidently designed to cover the whole oyster subject, *as is shown ■by the title, and by the 1st section thereof; and that the act of 1872 comes within the purview of the act of 1873, and is therefore expressly repealed by the 59th section of the latter act. Especially is this, so with regard to so much of the 2nd section of the act of 1872 as has been referred to — ■ which declares what shall be an offence with regard to oysters by a non-resident, to-wit: catching, taking and planting. The 22nd section of the subsequent act relates, to the same subject, but drops planting, and only makes taking and catching a public offence.

The court is of opinion, therefore, to reverse the judgment of the circuit court. And proceeding to enter such judgment as. ought to have been rendered by the circuit court, it is considered that the judgment of the county court in this cause against the plaintiff in error be reversed and annulled, and that he go thereof without day.

Christian, J. did not concur in the opinion that the act of March 14th, 1872 was repealed by the act of April 1st, 1873.

Judgment reversed.  