Gulf Fisheries Co. v. Darrouzet

• Decision Date: 22 December 1926
• Docket Number: No. 122.,122.
• Citation: 17 F.2d 374
• Parties: GULF FISHERIES CO. v. DARROUZET.
• Court: U.S. District Court — Panama Canal Zone

17 F.2d 374 (1926)

GULF FISHERIES CO. v. DARROUZET.

No. 122.

District Court, S. D. Texas, Galveston Division.

December 22, 1926.

Brantly Harris, of Galveston, Tex., for plaintiff.

D. B. MacInerney, Co. Atty., of Galveston, Tex., Dan Moody, Atty. Gen. of Texas, and C. A. Wheeler, Asst. Atty. Gen. of Texas, for defendant.

Before FOSTER, Circuit Judge, and WEST and HUTCHESON, District Judges.

HUTCHESON, District Judge.

This is a suit before a three-judge court, brought to restrain the county attorney and the authorities of the state of Texas from prosecuting the plaintiff for pursuing the business of handling fish without securing a wholesale dealers' license, as provided by the statutes of Texas, and paying the tax on products handled by them as such wholesale dealers. The case is submitted on an agreed statement as follows:

The Gulf Fisheries Company, plaintiff, is a corporation organized under the laws of the state of New York, with a permit to do business in the state of Texas, and with its place of business in Galveston. The plaintiff is engaged in the business of catching fish on its own vessels, some of said fish being caught at open sea, but most of the fish being caught in foreign waters, and bringing said fish into Galveston, Tex., on the same boats that said fish are caught; said fish consisting mostly of red snappers and other fish.

That, after catching said fish as aforesaid, plaintiff brings said fish on its vessels to the port of Galveston, where it is accorded wharf privileges by the Galveston Wharf Company, such as are necessary to the conduct of business in unloading fish from the boats and loading same on express cars, and such space as is necessary in handling the office work incident thereto. In the handling of said fish, plaintiff has several large bins or ice boxes for the storage and handling and re-icing of said fish.

That said fish are unloaded by the plaintiff from the vessels of plaintiff in Galveston, Tex., and are at said place weighed and washed. All the fish are at said place weighed and washed, and approximately 75 per cent. are beheaded and gutted, and from 7 to 10 per cent. are gutted and gilled, with heads left on, and the remainder are sold without beheading or removing gills or entrails. Said fish are re-iced at said place, and are put with ice in barrels for shipments in filling orders, except 15 or 20 per cent., which are sold within the city of Galveston to wholesale dealers. Said fish are not cooked or treated in any manner, but are shipped to purchasers in the same condition as when caught, excepting that said fish are washed, and the heads and entrails are removed, as before stated, and then such fish, with fresh ice, are placed loose in barrels and so shipped. There are many wholesale dealers in fish in Texas, whose business is the buying of fish from the Gulf Fisheries Company and similar concerns and reselling same at retail.

After said fish are brought into Galveston as aforesaid, they are immediately re-iced, to keep said fish from spoiling and handled as above set forth. About 25 per cent. of fish brought in are shipped to states other than Texas by railway express and by freight.

That plaintiff has several large ice boxes on the wharf where fish are unloaded; that none of said fish are stored in cold storage plants in the city, but are shipped out of Galveston as fast as said fish can be re-iced, washed, and handled as above stated, and loaded in express cars; and that practically all of said fish are shipped the day said fish are unloaded from the boats on which they are brought into Galveston. On a few occasions fish have been held in said ice boxes on plaintiffs premises for more than 48 hours, but this is an exception to the rule.

Plaintiff sells no fish at retail, at its place of business or elsewhere, but sells all fish in the manner and place above stated, in large quantities, to such persons as wholesale dealers in quantities of 50 pounds and up; about 400 pounds being the average order.

Plaintiff has, on the demand of the game, fish, and oyster commissioner of the state of Texas, taken out a wholesale fish dealer's license, but has refused to pay the tax of $1 per 1,000 pounds of fish sold by plaintiff at the place and in the manner above stated; this tax covering fish sent to other states, as well as fish sold in Texas. The defendant herein will prosecute all plaintiff's agents and employees, unless the tax of $1 per 1,000 pounds of fish is paid, said license being $1 for each 1,000...