Dobard v. State

• Decision Date: 18 October 1950
• Docket Number: No. A-2675,A-2675
• Citation: 233 S.W.2d 435,149 Tex. 332
• Parties: DOBARD et al. v. STATE.
• Court: Texas Supreme Court

Page 435

233 S.W.2d 435

149 Tex. 332

DOBARD et al. v. STATE.

No. A-2675.

Supreme Court of Texas.

Oct. 18, 1950.

Taylor, Cox, Wagner & Adams, Brownsville, D. C. Bland, Orange, Polk Hornaday, Harlingen, L. Hamilton Lowe, Austin, Hornaday & Hardy, Harlingen, for appellants.

Price Deniel, Atty. Gen. of Texas, J. Chrys Dougherty, Jesse P. Luton, Jr., K. Bert Watson, Walton Roberts, David Wuntch, Asst. Attys. Gen., for appellee.

GARWOOD, Justice.

The appellants, Dobard et al., who are commercial shrimp fishermen and all but one nonresidents of Texas, were enjoined below at the behest of the State from pursuing their avocation (or other commercial fishing for edible sea life) in the salt waters of the State, including the marginal sea to a distance of three marine leagues from shore, without holding licenses for themselves and their boats as required by c. 68, Acts 51st Leg., Reg.Sess., Art. 934b-2, Vernon's Ann.Penal Code. Their appeal comes to us from the trial court under Rules of Civil Procedure, Rule 499-a and related provisions of law, the sole ground for reversal being that the above mentioned statute, upon which the injunction rests, is in conflict with both the state and federal constitutions.

The statute is our latest legislation purporting to regulate the business of fishing in the waters mentioned. It repealed a previous law (levying in effect an unequal license tax against nonresident commercial fishing in such waters) which we had sustained in Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588. The Depuglio case rested largely on the three-judge court decision in Toomer v. Witsell, D.C., 73 F.Supp. 371, sustaining a somewhat similar statute of South Carolina, but that case was subsequently reversed in its pertinent part by the federal Supreme Court, which held the statute to violate the privileges and immunities clause, Art. 4, § 2, of the Federal Constitution. 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460. Still later, the very statute upheld by us was declared violative of the Federal Constitution by a three-judge court in Steed v. Dodgen, 5 Cir., 85 F.Supp. 956, on the strength of the final decision in Toomer v. Witsell; these two cases being evidently the occasion for enactment of the substitute legislation now before us.

The present measure expressly describes itself as one of conservation. In substance it requires, under penalty of fine and imprisonment as well as injunction, that every person fishing for 'edible aquatic life' in the abovementioned waters for hire or in order to sell his catch, shall have a license issued by the Game, Fish & Oyster Commission of the State and that every fishing boat used in such fishing shall also have such a license. Unlike the invalidated prior statute, it does not establish a differential type of license fee or tax, though it obviously does favor residents in important respects over nonresidents. Sections 4, 4a and 5 are copied the margin. ¹ Together with the brief provisions calling for licenses and forbidding fishing operations without licenses, the quoted sections reflect the entire scheme and all the standards to be followed to accomplish the declared purpose of the Act. It thus appears that: (a) the method used to conserve fish is to fix, that is to limit, the number of licenses for a given year, thus fixing or limiting the number of boats to be used and doubtless also the number of individuals to engage in the business; (b) in this latter connection (§ 4) it is less than clear whether there are separate quotas to be set for boats and fishermen, when the quota for the latter, if any, is to be set, and upon what basis or standard such quota is to be determined, assuming, as we evidently should assume from the first part of § 4, that the intended basis of the boat quota is the estimated total amount of fish available during the ensuing September-September year; (c) the word 'license' as used in the Act generally becomes ambiguous in various instances on account of the failure to specify whether it refers to one kind of license or another; (d) no distinction is drawn in the case of either boat or fisherman's license or the corresponding quotas between the various types of 'edible aquatic life', which we judicially know to be objects of commercial fishing in the waters in question, so that, for example, if the boat quota were established on the basis of available shrimp it would yet also apply to boats used for taking other fish, whatever might be the abundance or scarcity of the latter as compared to shrimp; (e) the quota (or quotas) is to be determined annually prior to September 1, and the licenses issued annually for the year beginning with the date; but (f) holders of 'licenses' for an expiring year have (§ 5) a right of renewal, to the exclusion of new applicants, which right is thus not only preferential but also absolute in the sense that a licensee is entitled to a renewal for the following year regardless of the estimated scarcity or abundance of fish available for the renewal year; the result being that, while the actual number of boats (or fishermen) for a quota-year may theoretically be increased by increasing the quota over that of the prior quota-year, such number cannot be correspondingly decreased by a quota decrease, because the new quota cannot be less than the number of renewal applications made for the corresponding year; (g) if, after the renewal applications are granted, there should yet remain other licenses available within the new quota, new applicants who are 'resident citizens of Texas' are preferred over other persons in the award of these remaining licenses (§ 5), and this evidently without regard to any other consideration, although there is a weak inference in the latter part of § 5 that the Commission may have discretion to refuse a license on grounds of personal unfitness, such as bad character, of the applicant; (h) under the last sentence of § 4 considered with § 4a, the operation of the Act is begun by granting to all holders of 'present licenses' (evidently meaning licenses in existence on the effective date of the Act, April 6, 1949) new licenses for an interim, or less than full year, quota period ending August 31, 1949, so that persons holding licenses on April 6, 1949 would thus be the 'prior' licensees to enjoy preference as such with respect to the new licenses to be issued shortly thereafter for the first quota-year of twelve months (beginning September 1, 1949) and corresponding preference with respect to subsequent years so long as they should continue to seek renewals under § 5.

As before indicated, the appellants are boat-owning or boat-operating shrimp fishermen and, according to the agreed statement of facts upon which the appeal is submitted, the principal controversy apparently concerns their right to use their boats for catching shrimp, but the pleadings and decree speak in terms of edible aquatic life generally. Beyond the information that shrimp in the waters concerned are migratory, of two kinds and enjoying the brief life span of one year, the statement contains almost nothing in the way of relevant data concerning the degree of relationship of the law to conservation as applied to any kind of fish life.

It also appears directly or inferentially from the agreed statement that: On the effective date of the Act, April 6, 1949 there were outstanding about 1450 boat licenses, of which only 6, or less than one half of one per cent, were held by nonresidents (The appellants say these licenses were issued under Art. 934b-1, Vernon's Annotated Penal Code, which was held invalid in Steed v. Dodgen, supra, while the state says they were issued under still another statute, Art. 934a, which requires licensing of commercial fishermen and their boats without distinction between residents and nonresidents and has not been invalidated or repealed. The agreed statement ignores the point). About ten days after April 6, 1949, the Commission established the interim 'quota' by more or less arbitrarily declaring it to consist of the 1450 licenses abovementioned and allowed such licenses to subsist, and such quota to serve, for the four-and-one-half-month period until September 1 following. On July 14 the Commission fixed the quota for the forthcoming year starting September 1 at about 1550 boat licenses, which number 'represented, as near as could be determined, a renewal of licenses for all existing vessels required to be licensed under this statute, plus a reasonable increase of approximately 75 to 100 boats to be added to the existing fishing fleet.' Our only information as to what theory or evidence was the basis of this action is the statement that 'the purpose of the conservative quota was to guard against overfishing, and the consequent damages of depletion to an extent that the numbers of desirable species might be reduced to a number incapable of perpetuating itself at the normal annual production levels.' (Whether 'desirable species' refers to species of shrimp or of fish in general does not appear.) After thus fixing the quota for the coming year, the Commission proceeded to dispense the corresponding licenses. In so doing it 'gave priority' to such of the abovementioned 1450 pre-April 6, 1949 holders as applied before September 1, 1949, but evidently on the latter date there remained an undisclosed but substantial number of licenses available within the quota of 1550, and thereafter applications were received and licenses issued until, on September 8, the quota was filled. In issuing this remaining number of licenses between September 1 and September 8, the Commission apparently gave no preference to Texas residents either as such or as prior licensees, the result being that appellants 'could have secured such a license, had they filed their application before the quota was filled, September 8, 1949.' The appellants, however, did not file applications until after September 8 and were...