Cunningham v. Skiriotes

Decision Date10 February 1939
Docket NumberNo. 8854.,8854.
PartiesCUNNINGHAM, Sheriff, v. SKIRIOTES.
CourtU.S. Court of Appeals — Fifth Circuit

George Couper Gibbs, Tyrus A. Norwood, and W. P. Allen, all of Tallahassee, Fla., for appellant.

W. B. Dickenson and W. B. Dickenson, Jr., both of Tampa, Fla., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

Lambiris Skiriotes, arrested by the Sheriff of Pinellas County, Florida, under a warrant regularly issued by the County Judge of that County for violation of a State law against using diving apparatus in gathering sponges, was released on a writ of habeas corpus in the District Court of the United States, and the Sheriff has appealed. It appears from the warrant itself, and also from the Sheriff's return to the writ, that Skiriotes has done his diving at a point off the coast of Pinellas County about two marine leagues from the nearest land and from the line of mean low tide on the west shore of Florida. The District Judge held that, although the Constitution of Florida since 1868, art. 1, has fixed the State line three leagues from the mainland along the west shore, the State cannot exercise jurisdiction more than one league from the line of low tide consistently with the treaties of the United States which by Article 6 of the Constitution of the United States, U.S.C.A., are part of the supreme law. He found as special circumstances which justified interference with the State courts in advance of trial that the Supreme Court of Florida had held itself as a creature of the State Constitution to be without power to abridge, annul or abrogate any of its provisions; and that a certiorari to the Supreme Court of the United States from the decision of the State Supreme Court "would be a theoretical and negligible right," so that the prisoner if not released on habeas corpus would be denied his constitutional rights.

The statute involved, enacted in 1917, and now section 8087 Comp.Genl.Laws 1927, reads: "It shall be unlawful for any person, persons, firm or corporation to maintain and use for the purpose of catching or taking commercial sponges from the Gulf of Mexico or the Straits of Florida or other waters within the territorial limits of the State of Florida, diving suits, helmets or other apparatus used by deep sea divers." It is a part of an extensive "Act to Protect and Regulate the Sponge Fishing Industry of the State of Florida," Acts Fla.1917, c. 7389, which declares the sponges within the jurisdiction of the State to be the property of the State, and forbids the taking of those measuring less than five inches in diameter, and restricts the means of taking to the use of hooks, and requires boats engaging therein to procure a license and pay a tax. The provision quoted, which uses language similar to that used in forbidding the taking of small sponges, is not to be understood as applying throughout the whole Gulf of Mexico or Florida Straits, but only to so much of these and other waters as are "within the territorial limits of the State of Florida." Thus read, the statute itself is not amenable to the objection here urged. Sponges, like oysters, do not fall under the exclusive jurisdiction of the United States, and the States may regulate the taking of them. Where oysters were the matter of controversy it was held that each State owns the beds of all tidewaters within its jurisdiction unless they have been granted away, and the fish in them, so far as they are capable of ownership, subject to the paramount right of Congress to regulate navigation and commerce. McCready v. Virginia, 94 U.S. 391, 394, 24 L.Ed. 248. The manner of taking them can be regulated by the State. Smith v. Maryland, 18 How. 71, 15 L.Ed. 269. The fault found is really with the State Constitution, Art. 1 of which declares the boundary of the State on the east to be the edge of the Gulf Stream and on the west to run three leagues from the land. This delineation includes the point at which Skiriotes was diving for sponges, although outside the "three mile limit" said to be commonly observed in international law. It first appeared in the Constitution of 1868, which was approved by Congress in readmitting Florida to the United States, and was repeated in the present Constitution of 1885. So far as we are advised, the State of Florida has claimed without objection from any source jurisdiction over the western littoral waters accordingly for seventy years, and has exercised it under the statute here in question for the past twenty years. The Florida court upheld and applied the statute and held that the west shore counties included the waters for three leagues out, in Lipscomb v. Gialourakis, 101 Fla. 1130, 133 So. 104.

It would be an alluring task, if it were necessary, to trace out the origin and the present uncertainty in international law of the "three mile limit" on land sovereignty. Authority over littoral waters was debated by all the judges of England in Regina v. Keyn, 2 Exch.Div. 63, without any very certain result. The Privy Council of England in Direct U. S. Cable Co. v. Anglo-American Telegraph Co., 2 A.C....

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9 cases
  • Skiriotes v. State of Florida
    • United States
    • U.S. Supreme Court
    • April 28, 1941
    ...Court of the United States and was released, but this decision was reversed by the Circuit Court of Appeals. Cunningham, Sheriff, v. Skiriotes, 5 Cir., 101 F.2d 635. That court thought that the question of the statute's validity should be determined in orderly procedure by the state court s......
  • Ex parte Stonefield
    • United States
    • U.S. District Court — Western District of Kentucky
    • January 16, 1941
    ...S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Milliken v. McCauley, 9 Cir., 93 F.2d 645; Ex parte Hicks, 9 Cir., 98 F.2d 116; Cunningham v. Skiriotes, 5 Cir., 101 F.2d 635; United States v. House, 9 Cir., 110 F.2d 797. Although, in the present case, an appeal was technically taken to the Court of......
  • Ex parte Sharpe
    • United States
    • U.S. District Court — Western District of Kentucky
    • January 16, 1941
    ...S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Milliken v. McCauley, 9 Cir., 93 F.2d 645; Ex parte Hicks, 9 Cir., 98 F.2d 116; Cunningham v. Skiriotes, 5 Cir., 101 F.2d 635; United States v. House, 9 Cir., 110 F.2d 797. It is also well settled that in the absence of exceptional circumstances which......
  • Foster v. Gilbert, Civ. No. 66-1381.
    • United States
    • U.S. District Court — Southern District of Florida
    • January 6, 1967
    ...purports to regulate or punish are arguably unfair labor practices should be determined by the state courts. See Cunningham v. Skiriotes, 101 F.2d 635 (5th Cir. 1939). The Florida courts have consistently recognized the preemption doctrine. Scherer & Sons, Inc. v. International Ladies' Garm......
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