Shipman v. Dupre, Civ. A. No. 2362.

• Decision Date: 23 January 1950
• Docket Number: Civ. A. No. 2362.
• Citation: 88 F. Supp. 482
• Court: U.S. District Court — District of South Carolina
• Parties: SHIPMAN et al. v. DUPRE et al.

88 F. Supp. 482

SHIPMAN et al. v. DUPRE et al.

Civ. A. No. 2362.

United States District Court E. D. South Carolina, Charleston Division.

Heard December 19, 1949.

Decided January 23, 1950.

Judgment Vacated April 24, 1950.

COPYRIGHT MATERIAL OMITTED

Joseph Fromberg, Charleston, S. C., Aaron Kravitch, Savannah, Ga., Phyllis Kravitch, Savannah, Ga., for plaintiffs.

R. Hoke Robinson, Asst. Atty. Gen. of South Carolina, John M. Daniel, Attorney General of South Carolina, Henry T. Gaud, Charleston, S. C., for defendants.

Before PARKER, Circuit Judge, WARING, Chief Judge, and TIMMERMAN, District Judge.

Judgment Vacated April 24, 1950. See 70 S.Ct. 640.

WARING, Chief Judge.

This is a suit brought by a number of persons engaged in commercial fishing. Some of these are the owners and operators of fleets of shrimp and fish trawlers off the coasts of North Carolina, South Carolina, Georgia, and Florida who are citizens and taxpayers of the State of South Carolina and are there licensed to operate. Others of the plaintiffs are agents and employees, many of them being masters of trawlers and others being employees thereon, and they, likewise, are citizens of South Carolina. The boats engaged in fishing and trawling belonging to or employing the various plaintiffs operate in the open sea along the Atlantic coast ranging from a one-half mile to ten miles off the coast. The defendants are the members of the State Board of Fisheries and its Chief Inspector. They are citizens and residents of the State of South Carolina, and the said Board is created by Statutes of the State of South Carolina. Code of Laws of South Carolina, 1942, § 3304.

This action is brought in this Court which is alleged to have jurisdiction by reason of the contention that certain statutes of the State of South Carolina, hereinafter more fully referred to, are in violation of the Constitution of the United States and specifically in violation of the Fourteenth Amendment to the Constitution of the United States and also in violation of Article III, Section 2 of the Constitution which gives to the United States exclusive jurisdiction in Admiralty, and Article I, Section 8 which gives to the United States exclusive jurisdiction over Interstate Commerce.

Plaintiffs pray for a declaratory judgment as authorized by Title 28 U.S.C.A. §§ 2201 and 2202, and for the convening of a Three-Judge Court and the granting of an interlocutory and a permanent injunction under Title 28 U.S.C.A. §§ 2281 and 2284.

Such a Three-Judge Court was convened by appropriate order and the case came on for a hearing at which time all matters involved were duly considered. Testimony was taken and all issues submitted for final adjudication.

The complaint sets forth in detail the business in which the plaintiffs are engaged and alleges that the defendants acting under the authority of certain state statutes are materially and seriously interfering with the rights of plaintiffs in the conduct of their business and are causing plaintiffs large losses by the seizure of their boats and cargoes and by bringing various actions against plaintiffs and their property and employees, and constantly harassing them in the conduct of their business as a result of which the plaintiffs have suffered, and are continuing to suffer, severe and continuous losses of large amounts of money well in excess of the jurisdictional amount of $3,000. The specific statutes of the State of South Carolina which are claimed to be void as in conflict with the Constitution and laws of the United States are:

Section 3403 of the Code of Laws of South Carolina of 1932.¹ This Section provides for the forfeiture of vessels used, their equipment and cargoes in the tide waters of South Carolina in violation of the fisheries laws.

Section 3379 of the Code of Laws of South Carolina 1942, as amended by act of the General Assembly June 17, 1949, 46 Statutes at Large, pp. 609, 610. The specific portions of that Act claimed to be void are those wherein it is declared that in any proceedings against a trawler, the registered master or captain shall be presumed to have been aboard the boat and such presumption shall be prima facie evidence of the same and the further portion of the Act which provides for confiscation.²

Section 3310 of the Code of Laws of South Carolina 1942, which gives to the Board of Fisheries authority to adopt rules and regulations having the force and effect of law.³

Section 3408 of the Code of Laws of South Carolina 1942, as amended by act of the General Assembly April 21, 1948, 45 Statutes at Large, pp. 2058-9 wherein a closed season for the catching and dealing in shrimps is provided and all such catching, fishing, and dealing is prohibited in the closed season and boats and equipment shall be forfeited.⁴

Section 3328 of the Code of Laws of South Carolina 1942, which gives authority to inspectors to examine premises, vessels and other places used in the fishing industry and to arrest without warrant persons found actually violating the laws.⁵

Respondents have questioned the jurisdiction of the Court to hear this case claiming that it does not present a substantial Federal question. Title 28 U.S.C.A. § 1331 gives the District Courts jurisdiction of all civil actions where the matter in controversy exceeds the value of $3,000 exclusive of interest and costs and arising under the Constitutional laws or treaties of the United States. In this case, there are allegations that the amount involved is far in excess of $3,000. There are also distinct charges that certain acts of the General Assembly of South Carolina violate the Constitution and laws of the United States. The Court must rely upon the allegations of the complaint in determining whether or not the case should be heard. We think the allegations of the complaint sufficient to warrant this Court making inquiry into the merits of the cause as set forth in the complaint and the Court, therefore, refused motion to dismiss and proceeded to investigate and pass upon the merits of the controversy.

In addition to the statutes hereinabove referred to and set out in the notes attached, the State of South Carolina has passed a number of laws regulating the taking of fish and shrimp and other shellfish. The plaintiffs make no complaint of the regulations covering the inland waters of the State and do not claim that their rights have been violated or that they should be allowed to fish therein. Nor does the State claim the right to regulate this industry beyond the well recognized three-mile maritime limit; and the matters herein involved relate to fishing and trawling outside of the inland waters but within the three-mile limit of the shores of South Carolina. This Court and the Supreme Court had occasion to consider many matters relative to the right of the State of South Carolina to regulate fishing and shrimping industry. See Toomer v. Witsell, D.C., 73 F.Supp. 371; Id., 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460. That case recognized that the State may exercise its police power to protect and regulate fishing rights, but that discrimination between residents and non-residents violated Constitutional rights.

In the instant case, the plaintiffs are not non-residents and there is no claim of discrimination against them on such ground. Also, in this case, the plaintiffs make no complaint as to their being required to take out licenses under the laws of South Carolina since they allege that they have conformed with the law and have obtained their licenses. The main ground of contention is the right of the State to enforce the forfeitures and penalties which the Acts impose; and the plaintiffs' main argument is against those particular statutes which provide for the forfeiture of vessels, equipment and the fish and shrimp which they have taken in instances where the statutes have been violated.

The respondents also object to the Court taking jurisdiction and rendering a declaratory judgment alleging that the plaintiffs have failed to show that they have been harmed by the seizure or forfeiture of vessels for failure to take out a license or other violations of the Statutes. It has been shown, however, that one vessel was seized but later released and that cargoes have been seized and it was admitted in argument that the State would use the forfeiture Statutes if and when the occasion occurred. We think it therefore proper for this Court to pass upon the matters involved and consider the constitutionality of the Statutes.

Plaintiffs claim that some of the Statutes are unconstitutional because they invade the Admiralty jurisdiction given by the Constitution of the United States, Article III, Section 2, and the exclusive jurisdiction in Admiralty held by the District Courts of the United States under the Judiciary Act of 1789, Title 28 U.S.C. A. § 1333. In reply to this contention, it is necessary only to cite the case of C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S.Ct. 499, 87 L.Ed. 663, which distinctly holds that the State may provide for a forfeiture without impinging upon such Admiralty jurisdiction.

In addition to the Statutes cited, there are penalty statutes providing for prosecution and punishment on conviction of persons violating the law in regard to the taking of shrimps and shellfish. But no question is raised here as to these matters.

But the most important and serious question is whether the forfeiture statutes hereinbefore referred to are in violation of the Constitutional protections in that they fail to provide any appropriate court process and arbitrarily deprive the plaintiffs or others in like plight of their rights to be heard and have a judicial inquiry before their goods are taken and forfeited. There can be no question, since the decision in the Hendry case, that articles used in fishing in violation of state laws may be forfeited, provided, of course, there is due process and opportunity for appropriate court review. The ...