Gospodonovich v. Clements, Civ. A. No. 3055.

• Decision Date: 05 January 1953
• Docket Number: Civ. A. No. 3055.
• Parties: GOSPODONOVICH et al. v. CLEMENTS.
• Court: U.S. District Court — Eastern District of Louisiana

108 F. Supp. 234

GOSPODONOVICH et al. v. CLEMENTS.

Civ. A. No. 3055.

United States District Court E. D. Louisiana, New Orleans Division.

August 29, 1951.

Appeal Dismissed January 5, 1953.

Hirsch, Greene & Barker, New Orleans, La., for plaintiff.

Albert S. Cain, New Orleans, La., for defendant.

Before BORAH, Circuit Judge, CHRISTENBERRY, Chief Judge, and THOMAS, District Judge.

Appeal Dismissed January 5, 1953. See 73 S.Ct. 332.

CHRISTENBERRY, Chief Judge.

This is a suit brought by fourteen commercial fishermen, eight of whom are residents of the State of Mississippi and six of whom are residents of the State of Alabama, against the Commissioner of the Department of Wildlife and Fisheries of the State of Louisiana, to enjoin the enforcement of those provisions of Title 56, Sections 377, 500, 551, 552 and 554 of the Louisiana Statutes Annotated—Revised Statutes of 1950, of the State of Louisiana, regulating and governing nonresident commercial fishermen and commercial fishing vessels, on the ground that such provisions are unconstitutional in that they contravene Article IV, Section 2, the Privileges and Immunities Clause; Article 1, Section 8, the Commerce Clause; and the Fourteenth Amendment, of the Constitution of the United States.

Petitioners are engaged in the taking and catching of fish, shrimp and oysters, which is a common calling of citizens of the states bordering on the Gulf of Mexico.

Respondent has been enforcing and will continue to enforce as against plaintiffs and other nonresidents, the provisions of the state statutes here complained of, which provide for forfeiture of boats and other equipment and for punitive sanctions in the way of fines and imprisonment.

The Legislature of Louisiana has classified the waters of Louisiana as follows:

Title 56, § 355, LSA-R.S. "* *, the waters of the state are divided into two classes: inland waters and coastal waters. The inland waters include all waters in which there is no regular ebb and flow of the tide. The coastal waters include all waters within which the tide regularly ebbs and flows."

Coastal waters are defined in Title 56, § 495, as follows:

"* * *, coastal waters of the state are divided into two classes, inside waters and outside waters. The outside waters shall include that portion of the Gulf of Mexico within the boundaries of the state and that portion of the Gulf of Mexico east of the Mississippi River, to Southwest Pass, and between the `cut-off' at Rabbit Island, or the boundary between St. Mary and Iberia Parishes to the Sabine River, west of the Mississippi River, of which the water is three fathoms or more in depth. All other waters of the state within which the tide regularly rises and falls or into which salt water shrimp migrate are inside waters."

The statutes assailed contain no territorial restriction as to the waters in which they will be enforced, and the record discloses that respondent has enforced and will continue to enforce these statutes up to 27 miles off shore from the Louisiana Coast.¹

The provisions of the statutes relating to the license fees charged commercial fishing boats, Title 56, § 376, LSA-R.S.1950, provide for payment by citizens of the State of Louisiana of a license fee of 5 per annum for boats of 45 feet or under in length, and $10 per annum for boats over 45 feet in length. Title 56, § 377 provides that no vessel shall be licensed or permitted to engage in commercial fishing or freighting operations for fish unless the vessel shall have been registered at a customs port within the State of Louisiana, and unless the owner of such vessel is a bona fide citizen of the State of Louisiana, resident therein for two years.

With respect to boats engaged in the commercial taking or freighting of oysters, Title 56, § 431, LSA-R.S. of 1950, provides that licenses for such boats shall be issued only upon the application of any resident of the state, and the license tax is fixed at 50 cents per ton, or fraction thereof, per year.

As to commercial fishing boat licenses to catch and transport shrimp, Title 56, § 500, LSA-R.S. of 1950, provides that no vessel may be licensed or permitted to engage in commercial shrimp fishing or freighting unless registered at a customs port within the state, and unless the owner is a resident. An exception is made with respect to vessels owned and operated by citizens of a state which has entered into a reciprocal agreement with Louisiana. Citizens of such reciprocating states and boats owned by such citizens may catch or transport shrimp upon payment of the same licenses and taxes as are levied upon citizens of Louisiana, and boats owned by them, but only in certain described waters.²

No commercial fishing vessels owned by nonresidents of Louisiana, whether the owners of such vessels be residents of states with which Louisiana has reciprocal agreements or not, are permitted to fish for fish, shrimp or oysters in the area lying approximately west of the mouth of the Mississippi River.

It will be noted that the foregoing statutes do not provide for the licensing of commercial fishing boats owned and operated by nonresidents, with the exception of those vessels owned and operated by bona fide residents of states with which the State of Louisiana has a reciprocal agreement. True, Act 210 of the Legislature of 1946, LSA-R.S. 56:551 et seq., provides for the issuance of a nonresident commercial fishing boat license upon payment of a fee of $2,500. However, the record discloses that no such license has ever been issued by respondent, and respondent is not now prepared to issue and has no intention of issuing a $2,500 license. The explanation is that he considers Act 210 of 1946 to be ineffective, for the reason that the Act contains a proviso that it be considered as supplemental legislation, and not be construed as...