Pope v. Blanton

• Decision Date: 13 February 1935
• Citation: 10 F. Supp. 18
• Parties: POPE et al. v. BLANTON, County Judge, et al.
• Court: U.S. District Court — Northern District of Florida

10 F. Supp. 18

POPE et al. v. BLANTON, County Judge, et al.

District Court, N. D. Florida.

February 13, 1935.

Sutton, Tillman & Reeves, of Tampa, Fla., for plaintiffs.

Cary D. Landis, Atty. Gen., of the state of Florida, H. E. Carter and J. V. Keen, Asst. Attys. Gen., and William T. Hendry, of Perry, Fla., for defendants.

Before BRYAN, Circuit Judge, and AKERMAN and LONG, District Judges.

LONG, District Judge.

This is the second time this case has been presented to this court upon application for temporary injunction. First upon original bill, at which time injunction was denied for the reasons set forth in the opinion filed July 13, 1934. 10 F. Supp. 15. It is now before the court upon the amended bill, motion to strike, and supporting affidavits.

Plaintiffs, citizens of Florida, seek to enjoin the enforcement of chapter 7389, Act of 1917, § 4, Comp. Gen. Laws, § 8087, of Florida, providing that it shall be unlawful for any person "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."

The amended bill seeks to enjoin the defendant Kokinos from making affidavits to obtain warrants; the county judge from issuing warrants; the sheriff from making arrests; the state attorney and circuit judge from proceeding with the trials; and all defendants, and each of them, from interfering with plaintiffs while taking sponges beyond the 3-mile limits of the state of Florida. In the opinion of July 13, 1934, we said: "The general rule is that criminal prosecutions may not be enjoined. An exception of this rule is recognized where rights of property are involved and the damages are irreparable; but even then it is unheard of to enjoin courts of another jurisdiction." By the amended bill, plaintiffs undertake to show that property rights are involved; that the damages are irreparable, and that jurisdiction attaches in order to prevent a multiplicity of suits; that plaintiffs have large investments in boats and other equipment; that their boats and other equipment are used in gathering sponges by the method of diving; that the boats are of a value greater than $3,000 each; that those other than the owners are employed on the boats; that they are dependent upon this employment for a livelihood; that their sales through the sponge exchange amount to some $300,000 yearly; that the profits are distributed among them; that in excess of 50 per cent. of the sponges are gathered from 5 to 10½ miles off the shore of Taylor county; that off the shore of this particular county sponges grow more rapidly and are more easily gathered than any other place; that because of the acts of defendants, plaintiffs will suffer irreparable damage unless defendants are restrained from enforcing the Florida statute prohibiting the taking of sponges by the diving method a distance of three leagues from the shore line.

The allegations in the amended bill seeking injunction to prevent multiplicity of suits are that plaintiffs have been threatened by defendants other than the circuit judge with arrests should they attempt to take sponges from the waters off the shore of Taylor county in excess of 3 miles from shore and less than 10 miles from shore.

The jurisdiction of a federal court of equity attaches only when the rights of property are involved and the damages are irreparable (see former opinion this court filed July 13, 1934, 10 F. Supp. 15; Cline v. Frink Dairy, 274 U. S. 445, 47 S. Ct. 681, 71 L. Ed. 1146); and in order to prevent a multiplicity of suits (Dearborn Publishing Co. v. Fitzgerald D. C. 271 F. 479).

In the original bill plaintiffs complained of interference with them in gathering the sponges 7 to 50 miles off shore. In the amended pleading the complaint is interference from 5 to 10½ miles off shore. This pleading is silent as to what part of the sponges are gathered within the distance of from 5 to 9 miles, and what part are gathered within the distance of from 9 to 10½ miles. It does not appear that the territory off the shore of Taylor county is the only place where plaintiffs may engage in the gathering of sponges; on the contrary, the amended bill shows that sponges are gathered from the waters off the shore of other counties.

In passing upon the sufficiency of a bill seeking a temporary injunction, the court will consider whether or not the injury to the public outweighs the injury to the plaintiffs which would result from the refusal to grant the relief. 32 C. J. 81; Cubbins v. Mississippi River Commission (D. C.) 204 F. 299; F. W. Cook Brewing Co. v. Garber (C. C.) 168 F. 942.

The statute, Act of 1917, prohibiting the gathering of sponges by the diving method from the territorial waters of Florida was passed for the purpose of protecting and perpetuating one of the great natural resources and important industries of the state. Prior to the enactment of this statute, sponges were taken from the waters of the Gulf of Mexico, along the shores of the state, either by the use of tongs or by the diving method. The Legislature of the state, in order that this natural resource and important industry be protected, and perpetuated, enacted the statute prohibiting the gathering of sponges by the use of diving suits, helmets, and other such apparatus.

The Legislature is the judge of the necessity of such an enactment, and the presumption is that their action was taken advisedly. Further, it appears by counter affidavits filed by defendants, "that, through the use of diving suits, which include heavy iron shoes, the sponge growth in the bottom of the waters of the Gulf of Mexico is seriously injured and usually totally destroyed, and that the taking of sponges by such means would so injure the sponge growth in such area that the industry would be practically destroyed."

The record discloses that some $600,000 worth of sponges are marketed annually through "Tarpon Springs" Exchange alone; that approximately one-fourth of the product comes from off the shores of Taylor county; so the Legislature, recognizing the value of this great industry to the people of the state, enacted the law complained of. It must therefore appear that the injury to the state in granting the injunction would outweigh the injury to the plaintiffs in refusing to grant the injunction.

The next, and most important, question is whether the state of Florida by its Constitution may establish the boundaries which it has established in the Gulf of Mexico. It is provided by article 2 of the Treaty of February 22, 1819, between Spain and the United States (8 Stat. 254): "His Catholic Majesty cedes to the United States, in full property and sovereignty, all the territories which belong to him, situated to the eastward of the Mississippi, known by the name of East and West Florida."

Section 5 of the Act of Congress, March 3, 1845 (5 Stat. 743), admitting Florida into the Union, provided: "That said State of Florida shall embrace the territories of East and West Florida, which by the treaty of amity, settlement and limits between the United States and Spain, on the twenty-second day of February, eighteen hundred and nineteen, were ceded to the United States."

Article 12 of the Constitution of 1838 provided: "The jurisdiction of the State of Florida shall extend over the Territories of East and West Florida, which, by the treaty of amity, settlement, and limits, between the United States and His Catholic Majesty, on the 22d day of February, A. D. 1819, were ceded to the United States."

Article 12 of the Constitution of 1861 provided the same boundaries as fixed by the Constitution of 1838. The Constitution of 1865, art. 12, established the boundaries of the state as follows: "Commencing at the mouth of the river Perdido, from thence up the middle of said river to where it intersects the southern boundary-line of the State of Alabama, on the thirty-first degree of north latitude; then due east to the Chattahoochee river; thence down the middle of said river to its confluence with the Flint River; from thence straight to the head of the Saint Mary's River; thence down the middle of said river to the Atlantic Ocean; thence southwardly to the Gulf of Florida and Gulf of Mexico; thence northwardly and westwardly, including all islands within five leagues of the shore, to the beginning."

The Constitution of 1868, art. 1, defined the boundaries: "Commencing at the mouth of the river Perdido; from thence up the middle of said river to where it intersects the south boundary line of the State of Alabama, and the thirty-first degree of north latitude; then due east to the Chattahoochee river; then down the middle of said river to its confluence with the Flint river; from thence straight to the head of the St....