Russo v. Reed

• Decision Date: 23 October 1950
• Docket Number: Civ. A. No. 733.
• Citation: 93 F. Supp. 554
• Parties: RUSSO et al. v. REED, Commissioner of Sea and Shore Fisheries of Maine.
• Court: U.S. District Court — District of Maine

93 F. Supp. 554

RUSSO et al. v. REED, Commissioner of Sea and Shore Fisheries of Maine.

Civ. A. No. 733.

United States District Court D. Maine, S. D.

October 23, 1950.

COPYRIGHT MATERIAL OMITTED

Nathan W. Thompson, Benjamin Thompson, Portland, Me., for plaintiffs.

Nunzi F. Napolitano, Assistant Attorney General of Maine, for defendant.

Before WOODBURY, Circuit Judge, and FORD and CLIFFORD, District Judges.

WOODBURY, Circuit Judge.

This is a suit by two citizens of the United States who are citizens of the Commonwealth of Massachusetts resident in Boston, for both a temporary and a permanent injunction restraining the Commissioner of Sea and Shore Fisheries of the State of Maine from enforcing against them the provisions of a Maine statute, the effect of which is to permit persons who have been legal residents of the state for three years to fish commercially¹ in Maine coastal waters during the summer months, but to prohibit non-residents from doing likewise. It is adequately alleged in the complaint in general terms that the matter in controversy between the parties exceeds the sum or value of $3,000, exclusive of interest and costs, and it is further alleged that the controversy is one arising under the Constitution of the United States; it being specifically alleged that the Maine statute referred to above violates the Privileges and Immunities clause of Article IV, Sec. 2, the Equal Protection clause of the 14th Amendment, and the Commerce clause. Article I, Sec. 8, clause 3.

With their complaint the plaintiffs filed an application for a temporary restraining order to prevent irreparable damage, and the district judge to whom both the application for injunctive relief and the application for a temporary restraining order were presented held a hearing on the latter application at which evidence was submitted. Upon that evidence he made specific findings of fact, including the specific finding that irreparable damage would result if the temporary restraining order was not granted, and in consequence granted the order. Subsequently the defendant moved for dissolution of that order, and after a hearing on that motion, at which further evidence was introduced, the district judge denied the motion.

This special district court was duly constituted in conformity with Title 28 U.S. C.A. § 2284, and after notice the case came on to be heard on the merits, at which time a motion by the defendant to dismiss for lack of jurisdiction was also heard. At the hearing before this court the parties introduced no evidence but their counsel stipulated certain facts in writing, and agreed to submit the case for final decree on the plaintiffs' application for a permanent injunction on that stipulation, and on the evidence introduced at the hearing on the application for a temporary restraining order and the hearing on the motion to dismiss that order.

The statutory provisions involved are sections 50 and 51 of the Maine "Sea and Shore Fisheries Laws". R.S.1944, c. 34, Laws of Maine 1949, pp. 19, 20. In 50 it is first provided that "No person shall take, catch or kill for commercial purposes any species of fish, except smelts by hook and line, in the coastal waters of the state until he has procured from the commissioner a written license therefor", and then the section goes on to provide for the issuance by the Commissioner for a fee of $3.00 of resident commercial fishing licenses to persons who have been legal residents of the state for 3 years prior to the date of their application "which license shall entitle the holder to take all species of fish, except clams, quahogs, mussels, lobsters and scallops by any lawful method, except the use of a weir, floating fish trap or seine." Section 51, with which we are more directly concerned, reads as follows:

"Non-residents may procure commercial fishing license for limited period; fee; penalty. No non-residents shall take, catch or kill at any time or in any manner in Maine coastal waters any species of fish for commercial purposes, except in accordance with the following provisions.

"A non-resident of the state may procure a commercial fishing license upon the payment of a fee of $10, which shall entitle the holder to take all species of fish, except shellfish, lobsters and scallops during the period of November 1 until March 31 of the following year, both days inclusive, by any lawful method except by use of a weir or seine.

"Whoever violates any provision of this section shall, upon conviction, be punished by a fine of not less than $500, nor more than $1,000, or by imprisonment for not less than 2 months, nor more than 6 months, or by both such fine and imprisonment."

The facts established are simple, and there is little, if any, dispute about them.

The plaintiffs, both elderly men of Italian extraction, have been commercial fishermen during their entire adult lives. Both are citizens of the United States by naturalization, and both are citizens of the Commonwealth of Massachusetts residing in Boston. The plaintiff, Scola, is the owner of two fishing boats, worth approximately $50,000, of the type known as draggers, one of which he commands himself; and the plaintiff, Russo is a fisherman on one of these boats. Both boats are well found and equipped, and their gear is particularly adapted for the taking of a free-swimming food fish known as whiting. These fish appear in numbers in the northeastern coastal waters of the United States in June, move northeastward up the coast from the vicinity of Provincetown, Massachusetts, during the summer, and disperse into deep water off shore in the early fall where they cannot be taken commercially. Captain Scola is a particularly skillful and successful whiting fisherman.

Late last June (1950) he brought his boats, apparently by prearrangement with the principal executive officer of the Mid-Central Fish Company of Maine, into Maine coastal waters and proceeded to fish therein for whiting which he sold to the fish company. On June 29, last, the plaintiffs, and some additional members of the crews of the Scola boats, others apparently were residents of Maine and had commercial fishing licenses, were arrested by Maine Coastal Wardens of the Department of Sea and Shore Fisheries acting under the direction of the defendant, Commissioner Reed, for fishing commercially in Maine coastal waters without state licenses. Subsequently, on July 10, Captain Scola and three other members of his crew were again arrested for fishing without licenses. In both instances those arrested were convicted in the Municipal Courts before which they were brought, and they appealed. So far as appears these appeals are still pending in the Maine Superior Court. At the time the arrests were made the wardens were acting under instructions of the defendant to arrest Captain Scola and those of his men who were unlicensed every time they were found fishing in Maine coastal waters.

It is evident from the testimony, although specific figures do not appear, that the value of the right to fish for whiting in Maine coastal waters during the summer season is worth, both to Captain Scola and to the individual members of his crews, substantially more than $3,000. Moreover, we think our subsequent discussion of the merits will demonstrate that at least one of the constitutional questions in controversy between the parties is far from frivolous or insubstantial. Therefore, although perhaps federal jurisdiction might have been grounded upon diversity of citizenship and amount in controversy, Title 28 U.S. C.A. § 1332(a) (1), it seems to us that such jurisdiction clearly rests upon an adequate amount in controversy and the existence of a genuine question of federal constitutional law. Title 28 U.S.C.A. § 1331. The jurisdiction of this district court of three judges under Title 28 U.S.C.A. § 2281 is also clear, for the present suit is for an injunction restraining the enforcement, operation or execution of a state statute by restraining the action of a state officer in the enforcement or execution of that statute on the ground that it violates the federal constitution.

Equitable jurisdiction in the premises on the ground of a threatened irreparable injury which is clear and imminent is obvious, for the loss of a season's fishing can not be restored, and the State of Maine provides no means for recovering damages in money to compensate for the loss occasioned by an illegal deprivation of the right to fish commercially within its coastal waters. Toomer v. Witsell, D.C., 73 F.Supp. 371, 374; Id., 334 U.S. 385, 391, 392, 68 S.Ct. 1156, 92 L.Ed. 1460. Nor do we see any occasion here for application of the doctrine of American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873, for the Maine statutory provisions involved are clear and need no interpretation, and so far as we are aware no other special circumstance exists requiring the federal courts to stay action pending proceedings in the courts of the State.

Nevertheless the defendant in his motion to dismiss, which we heard with the merits, urges dismissal for lack of jurisdiction on two grounds. First he contends that the constitutional questions raised are not substantial, and "need no further argument", because, he says, the state enjoys the "absolute right to control and conserve its wildlife for the benefit of its own citizens", neither the Privileges and Immunities clause of Art. IV nor the Equal Protection clause of the 14th Amendment requiring it to accord equal treatment to residents and non-residents with respect to its fisheries; and, second, he contends that the plaintiffs have no standing in court to question the constitutionality of the Maine statute involved, for, never having applied for commercial fishing licenses, they have never been denied them, and hence have not been made the victims of the statute.

We have already said that the constitutional question presented is...