State v. Ferrandau

• Decision Date: 04 June 1912
• Docket Number: 19,346
• Citation: 130 La. 1035,58 So. 870
• Court: Louisiana Supreme Court
• Parties: STATE v. FERRANDAU

58 So. 870

130 La. 1035

STATE v. FERRANDAU

No. 19,346

Supreme Court of Louisiana

June 4, 1912

Appeal from Criminal District Court, Parish of Orleans; Frank D Chretien, Judge.

L. J Ferrandau was convicted of shipping oysters out of the state for the purpose of canning and packing them out of the state and appeals. Reversed, and prisoner discharged.

Adams &amp Generelly, for appellant.

St. Clair Adams, Dist. Atty. (Amos L. Ponder, of counsel), for the State.

MONROE, J. PROVOSTY, J., dissents.

OPINION

MONROE, J.

Defendant was charged, under section 1, of Act No. 189 of 1910, with knowingly shipping "10 barrels of oysters out of the state of Louisiana to the city of Biloxi, in the state of Mississippi, for the purpose of canning and packing said oysters, out of the state of Louisiana." He demurred, on the ground:

"That so much of section 1, of Act No. 189 of 1910, as prohibits the shipment of oysters out of the state for canning and packing out of this state, is unconstitutional, null, and void, being violative of the third subdivision of section 8 of article 1 of the Constitution of the United States."

The demurrer having been overruled, defendant took his bill of exceptions, and was thereafter convicted, upon an agreed statement of facts, and duly sentenced to fine and imprisonment, from which he has appealed.

The statement of facts reads as follows:

"It is admitted that the oysters were grown in private beds in the state of Louisiana and shipped to the firm of Pecola & Michel, wholesale oyster dealers in New Orleans; that L. J. Ferrandau purchased the ten barrels of oysters, in the shell, in the open market in New Orleans, from Picola & Michel, and shipped the said oysters, in the shell, by rail, to the Barataria Canning Company at Biloxi, Miss., knowing that said oysters were going to be used by said canning factory, in the state of Mississippi, for the purpose of canning and packing said oysters, out of the state of Louisiana; that said transportation did occur, as alleged in the information, on the 16th day of January, 1912."

Section 1 of Act No. 189 of 1910 reads:

"That all beds and bottoms of rivers, bayous, lagoons, lakes, bays, sounds and inlets, bordering on, or connecting with, the Gulf of Mexico, and that part of the Gulf of Mexico within the jurisdiction of the state of Louisiana, including all natural oyster reefs and oysters and other shell fish growing thereon shall be construed and remain the property of the state of Louisiana, except as otherwise provided, and shall be under the exclusive control of the board of commissioners for the protection of birds, game and fish. The board may permit the use of said bottoms and reefs for the purpose of fishing, taking, bedding and raising oysters and other shell fish, subject to the restrictions imposed by law and the regulations of said board in so far as they do not conflict with the laws of the state. No grant, sale or conveyance of the lands forming the bottoms of said bodies or streams of water shall, hereafter, be made by the Register of the State Land Office, by any other official, or by any subordinate political corporation. Persons, firms, or corporations domiciled in this state, with their factories, shucking plants and shipping depots, located therein, may enjoy the right of fishing oysters from the natural reefs and leased bedding grounds whenever they have complied with the rules and regulations of said board; provided such oysters be canned and shucked or packed in this state, or shipped raw, in shells, from a shipping depot in this state, but no person, firm, or corporation shall ship oysters out of this state for canning or packing out of this state."

It will thus be seen that the law contemplates that the oyster shall be a commodity of commerce, and specifically provides that they may be packed and canned, and shipped in that condition or raw, in the shells, from a shipping port, in this state, and that they may be, and as the admitted facts in this case show are, lawfully sold and bought, in the open market, by any one who may choose to engage in the traffic, and hence may be bought by citizens of other states. The contention, however, seems to be that it is competent for the state of Louisiana to attach to the shipments, thus specifically authorized, the condition that they shall not be made with a view to the canning or packing of the oysters "out of this state."

In other words, a citizen of Louisiana who buys, in open market in this state, oysters "grown in private beds" or elsewhere, which are lawfully sold, may take them to his home and there sell, consume, pack, or can, and (either before or after they are packed or canned) ship them to another state; but the citizen of another state, who also buys such oysters in the open market, is prohibited from taking, or shipping, them to his home, if his intention is there to pack or can them. So that the state, having made the oyster a commodity of interstate commerce, assumes to regulate and control such commerce, as those who engage in it may be actuated by one purpose or another; saying to the one shipper, "As your purpose is that your buyers and consignees, living out of the state, shall sell or consume the oysters which you sell and ship to them, your trade is lawful"; and to the other, "As your purpose is that your buyers and consignees, or that you, yourself, shall pack or can, out of the state, the oysters shipped by you, your trade is unlawful"; and saying to all, "The oysters produced in Louisiana, whether in private beds, or elsewhere, may be packed and canned, but whilst such packing and canning is lawful if done within the state, their shipment, for the purpose of packing or canning them, out of the state, is unlawful."

The learned judge of the district court, in giving his reasons for overruling the demurrer, says:

"It is evident to me that, if the state has the right to prohibit the exportation from the state of oysters taken from the oyster beds of this state, it has the right to permit the exportation of those oysters subject to such conditions and limitations as it may deem proper to impose."

It will be conceded that, when Louisiana was admitted into the Union, she became the owner, by virtue of her sovereignty, of all the tidewater bottoms and the beds of the navigable streams within her territorial jurisdiction including all the shell and floating fish to be found upon those bottoms or in the waters above them; the property to be held in trust for the benefit of the whole people. It must also be conceded, however, that lands below high-water mark may be...