Shipman v. Du Pre

• Decision Date: 09 December 1952
• Docket Number: No. 16690,16690
• Citation: 73 S.E.2d 716,222 S.C. 475
• Parties: SHIPMAN et al. v. DU PRE et al.
• Court: South Carolina Supreme Court

Page 716

73 S.E.2d 716

222 S.C. 475

SHIPMAN et al. v. DU PRE et al.

No. 16690.

Supreme Court of South Carolina.

Dec. 9, 1952.

The following is the opinion of Judge LEWIS in the Court below:

Certain phases of this matter have heretofore been passed on by the Federal Courts. D.C., 88 F.Supp. 482, and is before this Court by virtue of an opinion by the United States Supreme Court, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877.

This action is instituted by the plaintiffs, commercial shrimp fishermen, against the South Carolina State Board of Fisheries, its members and certain officers thereof, seeking an adjudication that certain statutory laws of the State of South Carolina pertaining to the regulation of shrimp fishing are unconstitutional.

It appears that the questions raised by the pleadings concern the constitutionality of Section 3403, Code 1932, Sections 3408, as amended, 3310, 3379, as amended, and 3328, all of the 1942 Code of Laws. Under the statements by counsel of the issues to be determined, however, the questions involve only a consideration of Sections 3379, as amended by Act No. 323 of the 1949 Acts of the General Assembly, 46 St. at Large, p. 609, 3328 and 3408, as amended by Act No. 912 of the 1950 Acts of the General Assembly, 46 St. at Large, p. 2233.

Since the only question before me for determination in regard to Section 3408, as amended, relates to the forfeiture provisions of that Act, and the General Assembly by Act No. 912, supra, eliminated all forfeiture provisions therefrom, it is unnecessary to further consider that section.

This leaves the issues arising under Sections 3379, as amended, and Section 3328. They are considered in the order named.

By the pertinent portions of Section 3379, as amended, it is provided that, in addition to a fine or imprisonment as provided in other sections, any boat trawling for shrimp in the waters of South Carolina, without first securing a license so to do, shall be confiscated, with its rigging and equipment, to the State, and shall be sold by the State at public sale to the highest bidder for cash before the Court House door of the County in which captured, after giving 10 days notice of said sale in a newspaper published in said County.

There are no other statutory provisions now in effect giving the right to confiscate boats or equipment used in shrimp fishing in the coastal waters of South Carolina.

It will be seen from the above stated provisions of Section 3379 that no right is given to confiscate property of shrimp fishermen who are licensed by the State of South Carolina under other provisions of this section. All of the plaintiffs are licensed by the State of South Carolina, and therefore no statutory right exists for the confiscation of their boats, equipment, or cargo under any circumstances by the defendants, so long as they are so licensed.

Since the plaintiffs have paid their licenses required by the statutes of this State, thereby removing any possibility of forfeiture of their property, they have no standing to raise the constitutionality of the provisions of the statute under attack. The fact that some third party may be effected by these provisions under attack does not give the plaintiffs the right to raise such questions.

However, since all parties urge a decision as to the constitutionality of the forfeiture provisions of Section 3379, as amended, so that all question thereabout may be removed, and public interest dictating that such be done, I have concluded to treat the question as properly before the Court.

I find and hold that Section 3379, as amended by Act 323 of the 1949 Acts, is valid and constitutional for the following reasons:

1: The tax features are reasonable upon a proper classification and upon proper subject matter. Toomer v. Witsell, 334 ULS. 385, 68 S.Ct. 1156, 92 L.Ed. 1460. It is within the taxing power of the State. Hay v. Leonard, 212 S.C. 81, 46 S.E.2d 653.

2: The provisions of the Act that the licensee give a sworn statement showing the name and address of the Master is certainly a valid exercise of police power of the State. No citation of authority is needed here.

3: The presumption that the Captain or Master was on board the vessel at the time of the violation of any law is made a prima facie evidence rule. Such presumptions are constitutionally valid. See 12 Am.Jur., Constitutional Law, Section 552, page 248.

4: We now come to the penalty provisions of the law relating to forfeitures.

The 1949 Act provides first that its violator shall be fined or imprisoned as provided by Section 3407 of the 1942 Code. It goes on to provide for the confiscation of the boat, rigging and equipment if the boat trawls without a license. This property is then to be sold after ten days public notice. I find these confiscation features, when construed with other applicable law fully constitutional for the following reasons:

a. The provisions of the Act relating to forfeitures do not violate due process. The right of the State to pass special forfeiture provisions has been sustained. C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S.Ct. 499, 87 L.Ed. 663. The State has a wide latitude of discretion in the matter of the amount of the penalty or forfeiture. This discretion is governed by the interests of the public, the normal opportunities for committing the offense and the amount necessary to secure a prompt compliance with the statutory enactment. The value of the boats owned by the plaintiffs vary from $4,000 to $14,000 each. The volume of business done according to the plaintiffs who testified is from $40,000 to $60,000 per year. The amount of the forfeiture considered in the light of the business transacted during a year cannot be considered so excessive or unreasonable as to violate due process when taken along with all of the other considerations upon which the legislative discretion may rest. See: St. Louis, Iron Mountain, & Southern Railway Company v. Williams, 251 U.S. 63, 40 S.Ct. 71, 64 L.Ed. 139.

b. Before the boat or property can be sold, there will have to be a conviction of the operator for operating without a license. The Act provides for the confiscation 'in addition to the punishment provided for in Section 3407.' This meets the constitutional provisions of due process because it allows the parties charged a hearing and postpones a sale of the boat until determination of the criminal case against the operators, and conditions forfeiture upon a conviction of the criminal charge. Coffey v. Harlan County, 204 U.S. 659, 27 S.Ct. 305, 51 L.Ed. 666.

In addition, the owner of a boat sought to be confiscated has other remedies to test the legality of the forfeiture. See discussion thereabout in Shipman v. DuPre, D.C., 88 F.Supp. 482, 487.

The remaining question arises under Section 3328. It is herein provided that:

'It shall be lawful for the inspectors to enter any and all premises, vessels, boats, houses, sheds or warehouses used in fishing or any fishing industry in the tide waters or coastal section of this State and to arrest, without warrant, all persons found actually violating the penal laws, contained in the coastal fisheries law.'

Plaintiffs attack as unconstitutional these provisions allowing inspection and arrest without warrant on the premises of the shrimpers. This...