Com. v. Westcott

• Decision Date: 12 March 1976
• Citation: 344 N.E.2d 411
• Parties: COMMONWEALTH v. Jack B. WESTCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 411

344 N.E.2d 411

COMMONWEALTH

v. Jack B. WESTCOTT.

Supreme Judicial Court of Massachusetts, Dukes County.

Argued Oct. 6, 1975.

Decided March 12, 1976.

Howard Whitehead, Asst. Atty. Gen., for the Commonwealth.

George M. Vetter, Jr., Providence, R.I., for defendant.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

Statute 1923, c. 35, as amended by St.1962, c. 219, in effect prohibits nonresidents of Massachusetts from dragging for fish in Vineyard Sound during the months of July, August and September. ¹ On the authority of Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), we hold that the statute violates the privileges and immunities clause of the Constitution of the United States. U.S.Const. art. IV, § 2. We do not answer the question whether the requirement of legal residence 'during the preceding year' violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.

The defendant was arrested on September 5, 1973, by an officer of the Department of Natural Resources while engaged in dragging by means of an otter trawl for scup and fluke, which are migratory fish. His vessel was registered out of Point Judith, Rhode Island, and he was and is a resident of Narragansett, Rhode Island. He had not been a legal resident of the Commonwealth during the year preceding the arrest. The arrest occurred within waters covered by the statute.

The defendant was found guilty as charged in the District Court of Dukes County. On appeal to the Superior Court, the parties submitted a statement of agreed facts. The judge reserved decision on the defendant's motion to dismiss. Under G.L. c. 278, § 30A, the judge reported the case so far as necessary to present the following questions of law, and we granted the Commonwealth's application for direct appellate review:

'1. Does Chapter 35 of the Acts of 1923 as Amended violate the Privileges and Immunities munities Clause in Article IV § 2(1) of the Constitution of the United States, by imposing differential treatment between fishermen who are residents of the Commonwealth and those who are not?

'2. Do the criteria for legal residence in the Commonwealth during the preceding year as provided in Chapter 35 of the Acts of 1923 violate the Equal Protection Clause of the 14th Amendment to the Constitution of the United States?'

1. The ownership theory. The Commonwealth's argument as to the first question rests largely on McGready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1876). There the Supreme Court upheld a Virginia statute prohibiting nonresidents from planting oysters in the beds of its tidewaters. The court said the States owned the beds, the tidewaters themselves, 'and the fish in them, so far as they are capable of ownership while running.' Id. at 394, 24 L.Ed. 248. The planting of oysters in tidewater beds was like the planting of corn on dry land owned by the State; in both cases, the State could confine the use of the land to its own citizens. Id. at 396, 24 L.Ed. 248.

Later cases did little to reinforce the concept of ownership of migratory fish in the marginal sea. In Manchester v. Massachusetts, 139 U.S. 240, 265, 11 S.Ct. 559, 565, 35 L.Ed. 159 (1891), a regulation of fishing in Buzzards Bay was upheld; 'it was evidently passed for the preservation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other states.' In Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641 (1920) (Holmes, J.), dealing with migratory birds, the court said, 'To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership.'

In Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), a South Carolina statute discriminated against nonresidents fishing for migratory shrimp in the marginal sea. The Supreme Court held that the statute violated the privileges and immunities clause, which bars 'discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.' Id. at 396, 68 S.Ct. at 1162. 'The whole ownership theory, in fact,' the court said, 'is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the expolitation of an important resource.' Id. at 402, 68 S.Ct. at 1165. The McCready case was distinguished as involving stationary oysters rather than free-swimming fish, and tidewaters rather than marginal sea. Id. at 401, 68 S.Ct. 1156.

The Toomer case has been treated as controlling in cases like ours. Brown v. Anderson, 202 F.Supp. 96, 102--103 (D.Alaska 1962). Gospodonovich v. Clements, 108 F.Supp. 234, 237 (E.D.La.1951), appeal dismissed, 344 U.S. 911, 73 S.Ct. 332, 97 L.Ed 702 (1953). Edwards v. Leaver, 102 F.Supp. 698, 703 (D.R.I.1952). Russo v. Reed, 93 F.Supp. 554, 559--560 (D.Me.1950). Steed v. Dodgen, 85 F.Supp. 956, 958 (W.D.Tex.1949). Dobard v. State, 149 Tex. 332, 342, 233 S.W.2d 435 (1950). Cf. Mullaney v. Anderson, 342 U.S. 415, 417, 72 S.Ct. 428, 96 L.Ed. 458 (1952); Schakel v. State, 513 P.2d 412, 414 (Wyo.1973) (deer hunting). But cf. Anderson v. State, 213 Ark. 871, 875, 213 S.W.2d 615 (1948) (fishing in inland waters); State v. Kemp, 73 S.D. 458, 465, 44 N.W.2d 214 (1950), appeal dismissed, 340 U.S. 923 (1951) (nonresident hunters of migratory water fowl constituted 'a peculiar source of evil'). Similar decisions have been made under the equal protection clause of the Fourteenth Amendment. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 421, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) (discrimination against aliens). Edwards v. Leaver, supra (discrimination against corporations). The McCready case, if it retains any vitality, seems now to be restricted to shellfish or to tidewaters. See State v. Norton, 335 A.2d 607, 615 (Me.1975) (clams); Bruce v. Director, Dep't of Chesapeake Bay Affairs, 261 Md. 585, 607--611, 276 A.2d 200 (1971) (oysters).

2. The Submerged Lands Act of 1953. The Commonwealth contends that the rationale of the Toomer case has been completely undercut by the enactment of the Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq. (1970). Section 1311(a) of that act declares that 'title' to the 'natural resources' within 'navigable waters within the boundaries of the respective States' is vested in the respective States, and § 1301(e) defines 'natural resources' to include 'fish.' Vineyard Sound is undoubtedly part of the navigable waters of Massachusetts. Hence, it is argued, the ownership theory rejected in the Toomer case has now been revived by act of Congress.

The Submerged Lands Act of 1953 was a congressional response to three Supreme Court cases: United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950). United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950). United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). Those cases had held that the Federal government and not the individual coastal States had paramount rights in the marginal sea and control over the resources contained therein. 'The Act merely confirmed the States' pre-existing rights . . . by, in effect, quitclaiming all federal claims thereto.' Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 318, 94 S.Ct. 517, 522, 38 L.Ed.2d 526 (1973). We think, in the language of the Toomer case, that the ownership language of the act should be read as 'legal shorthand' for the 'power to preserve and regulate,' at least in its application to fish swimming in the ocean.

Decisions under the act have not given it any such effect as that for which the Commonwealth contends. In Corsa v. Tawes, 149 F.Supp. 771, 773 (D.Md.), aff'd, 355 U.S. 37, 78 S.Ct. 116, 2 L.Ed.2d 70 (1957), the court cited the act in deciding that regulation of coastal fisheries is 'within the police power of the individual states,' but did not reach the problem of discrimination against nonresidents. 149 F.Supp. at 777--778. In Kake v. Egan, 174 F.Supp. 500, 502--504 (D.Alaska 1959), aff'd sub nom. Metlakatla Indian Community, Annette Island Reserve v. Egan, 362 P.2d 901 (Alaska 1961), aff'd sub nom. Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), the court cited the Toomer case and the act; it said that the ownership theory 'has to some extent been repudiated and the modern concept contemplates that state control is founded upon the power to regulate in the state the protection of these resources (fish) for all the people.' See Glenovich v. Noerenberg, 346 F.Supp. 1286, 1291--1293 (D.Alaska), aff'd 409 U.S. 1070, 93 S.Ct. 687, 34 L.Ed.2d 660 (1972). In Brown v. Anderson, 202 F.Supp. 96, 102--103 (D.Alaska 1962), a case like the present one, the State statute was held unconstitutional on the authority of the Toomer case, without mention of the act.

3. Durational residence requirement. Our conclusion that the statute violates the privileges and immunities clause makes it unnecessary to consider whether the requirement of residence for one year violates the equal protection clause. See Massey v. Apollonio, 387 F.Supp. 373, 376--377 (D.Me. 1974) (three-year residence for lobstermen unconstitutional). Compare Memorial Hosp. v. Maricopa County, 415 U.S. 250, 258--260, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), with Sosna v. Iowa, 419 U.S. 393, 409, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

4. Disposition. We answer the first question reported by the Superior Court. 'Yes.' We do not answer the second question. The case is remanded to the Superior Court, where the defendant's motion to dismiss is to be allowed.

So ordered.

REARDON, Justice (dissenting).

It is my view that there is no violation of the privileges and immunities clause. In McCready v. Virginia, 94 U.S. 391, 395, 24...