Brownsville Shrimp Co. v. Miller, 11930.

Decision Date20 November 1947
Docket NumberNo. 11930.,11930.
PartiesBROWNSVILLE SHRIMP CO. et al. v. MILLER et al.
CourtTexas Court of Appeals

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Suit by B. T. Miller and others against the Brownsville Shrimp Company and others to restrain defendants from operating boats claimed by defendants in Texas coastal waters for commercial catching of shrimp and fish. From an adverse judgment defendants appeal.

Affirmed.

Faulk, Sharpe & Cunningham, of Brownsville, for appellants Brownsville Shrimp Co., Inc. and others.

Masterson & Pope, of Angleton, for appellants B. T. Miller and others.

Masterson & Pope, of Angleton, for appellees B. T. Miller and others.

Wood & North, of Corpus Christi, and Nussbaum, Piperi & Licata, of Galveston, for appellee Depuglio.

GRAVES, Judge.

The suit was filed by seven citizens of Texas, as resident commercial-fishermen of Texas, and also in behalf of others similarly situated, against 10 defendants, residents of Texas, seven of whom are appellants here, to restrain all ten defendants from (allegedly illegally and in violation of law) operating the boats claimed by such defendants in Texas coastal waters, for the commercial-catching of shrimp and fish.

Appellees' suit, as plaintiffs, sought only injunctive relief, alleging, among other things, that the boats claimed by appellants were in truth and fact actually owned by non-residents of Texas, that such boats had not been registered in Texas for the 12 months required to become resident boats, that such boats had only the $3.00-resident boat-license and not the $2,500.00 non-resident boat-license; that such boats were removing, illegally, from Texas tidal or coastal waters enormous quantities of shrimp, and were thereby seriously depleting and destroying the supply of marine-life, which plaintiffs and others similarly situated were properly authorized to catch, all of which caused special and peculiar damage to the plaintiffs, for which they had no adequate remedy at law.

On June 18, 1947, the Trial Court granted the temporary injunction against appellants, as so sought by the appellees.

No findings-of-fact nor conclusions-of-law were requested by either side, nor were any made or filed by the court in support of its judgment, except those expressly embodied therein, the most material ones of which were these: First: That the boats so used by the appellants, some 35, more or less, large ones, used for commercial-shrimping and fishing, had been registered in Texas less than 12 months prior to the filing of this suit; Second: That such boats were not, in fact owned by appellants themselves, but were owned by non-residents of Texas; Third: That such boats had only the $3.00-resident boat-license and did not have the $2,500.00 non-resident boat-license, as respectively required by Articles 934a and 934b — 1, Vernon's Penal Code of Texas, as amended; Fourth: That they had been, while so operating, in violation of such statutory law, depleting and destroying in great quantities, the supply of shrimp and other marine-life in the coastal tide-waters of Texas, and, in so doing, had interfered with the appellees in their lawful occupation — as bona fide residents — of catching shrimp in such waters, and also had specially damaged their boats, nets, gear, and other fishing-apparatus and equipment; Five: That, consequently, the appellants had been so operating in such waters without proper licenses, thereby injuring and damaging the appellee's boats, tackle, and shrimping-operations, specifically visiting thereby special injury and damage upon them.

This Court, upon consideration of the record, which is greatly extended, the trial court having heard evidence touching all phases of the controversy, is unable to hold that any abuse of judicial discretion has been shown upon the appeal.

In the first place, as indicated, in the absence of findings-of-fact or conclusions-of-law, it is conclusively presumed here not only that the trial court resolved every issuable-fact in such way as to support its judgment, but also that the evidence must be reviewed in the light most favorable to the appellees. Weems v. Stewart, Tex.Civ.App., 192 S.W.2d 935, 936; Trigg v. Fambro, Tex.Civ.App., 184 S.W.2d 666, 667; Machicek v. Renger, Tex. Civ.App., 185 S.W.2d 486, 487.

That being true, the cause, on review here, is seemingly reduced to a consideration wholly of whether the law, as reflected by the cited statutes, upon which the appellees so predicated their suit below, validly gave them the rights they so claimed thereunder; in other words, whether or not such statutes so prescribing $3.00-license-fees against resident-fishing-boats, and $2,500.00-license-fees against non-resident fishing boats, were constitutional.

The appellants attack both statutes upon a number of grounds, contending that they are in contravention of both the Texas and the U. S. Constitutions, particularly art. I, Sections 3, 19, & 26 of the former, Vernon's Ann.St., and art. I, Section 8, and art. IV, Section 2, as well as the Fourteenth Amendment, of the latter.

But this Court, on a consideration of the question, is not prepared to hold either of the two statutes so declared upon by the appellees to be violative of either constitution, as thus claimed by appellants. Without extended discussion, these authorities are cited as fully upholding that conclusion: Article 4026, R.C.S. 1925; McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248; Raymond v. Kibbe, 43 Tex.Civ.App. 209, 95 S.W. 727; Stephenson v. Wood, 119 Tex. 564, 34 S.W.2d 246; Tuttle v. Wood, Tex.Civ.App., 35 S.W.2d 1061; Ex parte Blardone, 55 Tex.Cr.R. 189, 21 L.R.A.,N.S., 607, 115 S.W. 838; 24 Am.Jur. 386; 22 Am.Jur. 692; 19 Tex.Jur. 694; 61 A.L.R. 338; Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, 794, 796; La Coste v. Department of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437, 438; Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539, 543; People v. Setunsky, 161 Mich. 624, 126 N.W. 844; State ex rel. Ohsman & Sons Co., Inc. v. Starkweater, 214 Minn. 232, 7 N.W.2d 747; Lubetich v. Pollock, D.C., 6 F.2d 237; Thomson v. Dana, D.C., 52 F.2d 759; Toomer v. Witsell, D.C.S.C., Sept. 1947, 73 F.Supp. 371.

Indeed, our cited statute, art. 4026, wherein it is declared: "all that part of the Gulf of Mexico within the jurisdiction of this State, together with their beds and bottoms, and all of the products thereof, shall continue and remain the property of the State of Texas, except in so far as the State shall permit the use of said waters and bottoms, or permit the taking of the products of such bottoms and waters, and in so far as this use shall relate to or affect the taking and conservation of fish, oysters, shrimp, crabs, clams, turtle terrapin, mussels, lobsters and all other kinds and forms of marine life," seems to embody the same bedrock, upon which the courts everywhere, State and Federal, have grounded their holdings that the State has a right in such an instance, in proper pursuit of its own policy for its immediate citizens, to prescribe these two widely-variant license-charges, respectively, against residents and non-residents, there by widely discriminating against the latter in favor of the former. Raymond v. Kibbe, 43 Tex.Civ.App. 209, 95 S.W. 727; McCready v. Virginia, 94 U.S. 391, 24 L. Ed. 248; 22 Am.Jur. 666; Stephenson v. Wood, 119 Tex. 564, 34 S.W.2d 246; 15 C.J.S., Commerce § 29; State v. Gallop, 126 N.C. 979, 35 S.E. 180; Commonwealth v. Hilton, 174 Mass. 29, 54 N.E. 362, 45 L.R.A. 475; People v. Crane, 214 N.Y. 154, 108 N.E. 427, L.R.A.1916D, 550, Ann.Cas. 1915B, 1254; Raymond v. Kibbe, supra; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772; Ex Parte Gilletti, 70 Fla. 442, 70 So. 446; Tuttle v. Woods, Tex.Civ.App., 35 S.W.2d 1061; Gustafson v. State, 40 Tex.Cr.R. 67, 48 S.W. 518, 43 L.R.A. 615; Los Angeles County v. Craig, 38 Cal.App.2d 58, 100 P.2d 818; 46 U.S.C.A. Chapter 2, Registry and Recording; 46 U.S.C.A. Chapter 12, Vessels in Domestic Technical Commerce; Ex parte Blardone, 55 Tex.Cr.R. 189, 115 S.W. 838, 21 L.R.A.,N.S., 607; The Yuri Maru, D.C., 17 F.2d 318, 320; 48 Am.Jur. 18; Article 4361; Article 2955; 24 Am.Jur.386; 22 Am.Jur. 692; 19 Tex.Jur. 694; In re Eberle, C.C.Ill., 98 F. 295; Cummings v. People, 211 Ill. 392, 71 N.E. 1031; State v. Ashman, 123 Tenn. 654, 135 S.W. 325; 61 A.L.R. 338; Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, 794, 796; La Coste v. Department of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437, 438; Patsone v. Pennsylvania, 232 U.S. 138, 34 S. Ct. 281, 58 L.Ed. 539, 543; State ex rel. Ohsman & Sons Co., Inc. v. Starkweather, 214 Minn. 232, 7 N.W.2d 747; People v. Setunsky, 161 Mich. 624, 126 N.W. 844; Lubetich v. Pollock, D.C., 6 F.2d 237; Toomer v. Witsell, D.C., 73 F.Supp. 371; Manchester v. Commonwealth of Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159; State of Louisiana v. State of Mississippi, 202 U.S. 1, 52, 26 S.Ct. 408, 50 L.Ed. 913.

The appellees, by cross-appeal herein against Vincent Depuglio, one of the ten original defendants against whom they had sought, along with the appellants, the temporary-injunction awarded them, contend that he too,...

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