Dodgen v. Depuglio
| Decision Date | 10 March 1948 |
| Docket Number | No. A-1340.,A-1340. |
| Citation | 209 S.W.2d 588 |
| Parties | DODGEN et al. v. DEPUGLIO. |
| Court | Texas Supreme Court |
Appeal from District Court, Nueces County.
Action by Vincent Depuglio against H. D. Dodgen, Executive Secretary, Game, Fish and Oyster Commission of Texas, and others for a declaratory judgment to enjoin defendants from interfering with plaintiff's operation of shrimping boats in the gulf coastal waters of the state. From the judgment, defendants appealed directly to the Supreme Court.
Judgment reversed, and temporary injunction dissolved.
Price Daniel, Atty. Gen., Fagan Dickson, First Asst. Atty. Gen., Chas. E. Pratt and David Wuntch, Asst. Attys. Gen., for appellants.
Wood & Wood and J. Allen Wood, all of Corpus Christi, T. J. Vaughn, of Aransas Pass, Nussbaum, Piperi & Licata and Frank Nussbaum, all of Galveston, and Ashley & Toler, Carlos C. Ashley, and Harris Toler, all of Austin, for appellee.
This suit was filed under the Texas Uniform Declaratory Judgment Act, Art. 2524 — 1, Vernon's Ann.Civ.St., by the appellee, Vincent Depuglio, in May 1947, in the 94th District Court of Nueces County against appellants, H. D. Dodgen, executive secretary Game, Fish & Oyster Commission of Texas, and others (members and employees of the Commission and the Attorney General of the state), seeking to obtain a judgment declaring the provisions of article 934b — 1 of the Penal Code to be unconstitutional and, on the basis of such judicial declaration, to enjoin appellants from interfering with appellee's operation of shrimping boats in the Gulf Coastal waters of the state. The statute thus sought to be nullified because beyond the power of the legislature to enact, is as follows:
It will be observed that the statute sought to be nullified is a conservation statute and that it prescribes a license fee for both non-resident fishermen and the use of nonresident commercial fishing boats, as a prerequisite to take shrimp belonging to the state (Art. 4026, Vernon's Ann.Civ.St.) from the state's territorial waters; and is also noted that article 4030, Vernon's Ann. Civ.St., one of the articles of the same conservation statute, provides that all funds collected by the Commission from the sale of commercial fishermans' licenses and other sources shall be employed (among other uses) in the better enforcement of the fish and oyster laws of the state, specifying (among the uses of the funds collected) the "purchase, repair and operation of boats and the employment of deputies to carry out and enforce the provisions of this Act," which act recites in its emergency clause that there were then (1925) "no efficient laws for the preservation, propagation and protection of the fish and other aquatic animal life of the State." (Italics ours.)
Appellants filed in the trial court a motion (unnecessary under our view of the case to take further note of) to dissolve a temporary restraining order granted appellee by the trial court; and filed also pleas to the jurisdiction of the court and in abatement, which the trial court heard along with the hearing on the application for a temporary injunction.
On June 7, 1947, the court rendered judgment overruling (correctly in our opinion) the pleas to the jurisdiction and in abatement and rendered judgment (erroneous in our opinion) sections 2, 3 and 4 of article 934b — 1 to be unconstitutional, and enjoining appellants "from interfering with plaintiff's (appellee's) boats in any manner in connection with the enforcement" of the law held to be unconstitutional.
Defendants (appellants here) gave notice of appeal direct to the Supreme Court pursuant to Rule 499-a, Texas Rules of Civil Procedure. The procedure prescribed by the rule, and duly followed in perfecting the appeal, was promulgated under an act of the legislature enacted by authority of section 3-b of article 5 of the state constitution, Vernon's Ann.St., authorizing direct appeals to the Supreme Court from trial courts in certain cases.
Section (a) of the rule provides that in view of the constitution of the state (confining the appellate jurisdiction of the supreme court to questions of law only) the court has and will take appellate jurisdiction on direct appeal over questions of law only, and will take such jurisdiction from only a district or county court.
Section (b) provides that "only the constitutionality or unconstitutionality of a statute of this State," may be presented when the same shall have arisen (as in the present case) "by reason of the order of a trial court granting or denying an interlocutory or permanent injunction."
Section (c) provides that such appeal shall be in lieu of an appeal to the court of civil appeals and that if the case involves the determination of any contested issue of fact, the procedure promulgated by the rule shall not apply.
The appeal (the interest of appellants in the subject matter appearing) was duly perfected. The transcript of the proceedings below filed by appellants shows, among other things, the pleadings of the parties, the filing of bonds by plaintiff (appellee) as required by the court; the interlocutory decree appealed from (reciting the overruling of defendants' pleas to the jurisdiction and in abatement, defendants' exceptions, the adjudication of the unconstitutionality of the provisions of article 934b — 1 supra, particularly sections 2 and 4, and the restraining order against defendants predicated thereon; and defendants' notice of appeal pursuant to rule 499-a) and the trial court's conclusions of law on which its adjudication of unconstitutionality and its restraining order against defendants, were predicated.
The facts appear to be that Depuglio is the owner of the fishing boats (acquired March 4, 1947) involved in the appeal and that he has not paid the $2500 license fee fixed by the legislature as above indicated, on any of these boats. No showing was made that these boats (not merely fish boats but commercial fishing boats) are presently registered in any other state and it is undisputed that they have not been continually registered in this state for twelve months, as required by the legislature privileging such boats to be "used for the purpose of taking * * * shrimp * * * from the tidal salt waters of this State." (Italics ours.) Appellee is now, and has been for many years a resident of the state, and has had a place of business in the state for many years from which he has conducted a seafood business, consisting in part in the taking of shrimp from the coastal waters of the state. The Game, Fish & Oyster Commission, the requirements of the above statute with respect to commercial fishing not having been met, and it appearing that the boats involved had not been "continually * * * registered in this State for a period of time more than twelve (12) months," sought to require Depuglio to pay the $2500 license fee prescribed by section 4 of the statute. Upon his refusal to pay such fee the Commission sought to prohibit the operation of the boats involved and, among other things, caused to be instituted various criminal prosecutions against him to enforce the prohibition. Depuglio sought to enjoin defendants in their interference with the...
To continue reading
Request your trial
-
Episcopal Diocese of Fort Worth v. Episcopal Church
...158 Tex. 416, 312 S.W.2d 632, 633 (1958); Rodriguez v. Gonzales, 148 Tex. 537, 227 S.W.2d 791, 792–93 (1950); Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588, 591–92 (1948). 12.See Conlen Grain & Mercantile, Inc. v. Tex. Grain Sorghum Producers Bd., 519 S.W.2d 620, 621–22 (Tex.1975); Robin......
-
Tisko v. Harrison
...is presumed to be valid. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588 (1948). We conclude that plaintiff has not carried that burden in this case. The purpose of article 6701b is indicated in the ......
-
HL Farm Corp. v. Self
...L.Ed.2d 225 (1971)); see City of Coleman v. Rhone, 222 S.W.2d 646, 649 (Tex.Civ.App. Eastland--1949, writ ref'd); Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588, 594 (1948); Fort Worth & D.C. Ry. Co. v. Welch, 183 S.W.2d 730, 735 (Tex.Civ.App.--Amarillo 1944, writ ref'd); Taylor v. State,......
-
Episcopal Diocese of Fort Worth v. Episcopal Church
...1960); Smith v. Decker, 312 S.W.2d 632, 633 (Tex. 1958); Rodriguez v. Gonzales, 227 S.W.2d 791, 792-93 (Tex. 1950); Dodgen v. Depuglio, 209 S.W.2d 588, 591-92 (Tex. 1948). 12. See Conlen Grain & Mercantile, Inc. v. Tex. Grain Sorghum Producers Bd., 519 S.W.2d 620, 621-22 (Tex. 1975); Robins......