Steed v. Dodgen

• Decision Date: 02 April 1949
• Docket Number: Civ. A. No. 365,446.
• Citation: 85 F. Supp. 956
• Parties: STEED et al. v. DODGEN et al. HEBERT et al. v. BUCKNER et al.
• Court: U.S. District Court — Western District of Texas

85 F. Supp. 956

STEED et al. v. DODGEN et al.

HEBERT et al. v. BUCKNER et al.

Civ. A. Nos. 365, 446.

United States District Court W. D. Texas, Austin Division.

April 2, 1949.

D. C. Bland, Orange, Texas, for plaintiffs Tom Steel and others.

Cecil & Keith, Beaumont, Texas, for plaintiffs J. J. Hebert and others.

Price Daniel, Attorney General of Texas, and David Wuntch, Assistant Attorney General of Texas, for defendants.

Before HUTCHESON, Circuit Judge, and KENNERLY and RICE, District Judges.

RICE, District Judge.

These consolidated causes, brought by seventy-two non-residents of the State of Texas, largely residents of the State of Louisiana, seek to enjoin the enforcement of the provisions of Article 934b — 1 of the Penal Code of the State of Texas, Vernon's Ann.P.C. art. 934b—1,¹ because they say that such legislation, as applicable to non-residents of Texas, is unconstitutional in that it violates the spirit and the letter of Article IV, Section 2² (being the privileges and immunities clause); the Fourteenth Amendment; and the Interstate Commerce clause, art. 1, § 8, cl. 3; all of the Constitution of the United States.

The State of Texas has been and will continue to enforce the provisions of said Act as against non-residents of said State who fail to comply with its terms.

During the trial of these causes, the Attorney General of the State of Texas admitted that Section 10 of said Act is unconstitutional, as applied to non-residents of Texas. This section levies an inspection tax or fee of $10.00 for each one hundred pounds or fraction thereof, of any cargo of shrimp sought to be discharged or unloaded from any unlicensed commercial fishing boat or vessel within the territorial limits of Texas.

By the terms of Article 934a of the Penal Code of Texas, Vernon's Ann.P.C. art. 934a, a resident commercial fisherman, for the privilege of engaging in commercial fishing within the territorial waters of the State of Texas, is required to pay an annual license fee of $3.00; and, for the same privilege, an annual license fee for a commercial fishing boat owned by a citizen of Texas is set at either $3.00 or $15.00, depending upon the length of the vessel. On the other hand, and for the same privileges, there is levied by the terms of Article 934b — 1 of said Code as against a non-resident commercial fisherman an annual license tax of $200.00, and as against a non-resident commercial fishing boat an annual license tax of $2500.00.

The resident and the non-resident commercial fishermen are engaged in the same common calling, using substantially the same means and methods; and there is not shown to be any real distinction between the fishing vessels owned and used by resident commercial fishermen and those owned and used by non-resident commercial fishermen.

When the Steed case was filed in June, 1947, the State of Texas, acting through its Game, Fish and Oyster Commission, had refused and thereafter continuously refused until November 15, 1948, to issue a license to a non-resident commercial fisherman or non-resident commercial fishing vessel. On said last mentioned date a resolution was adopted by said Commission authorizing the Executive Secretary to use his discretion in issuing such license.

This record discloses that the distinction between the two types of licenses required by said Act is based solely upon citizenship. This being true, the Act comes squarely within the holding of Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1157, 92 L.Ed. 1460.

The Supreme Court of the United States in the above mentioned cause held that the Act of the Legislature of South Carolina regulating commercial fishing within its territorial waters unreasonably discriminated against citizens of other States and was violative of Article IV, Section 2 of the Constitution of the United States. The facts of that case and the law under attack therein are in all respects material here substantially the same as in the causes under consideration. Because the Supreme Court, in a well reasoned opinion, has clearly expressed itself as to the constitutional question here raised, we, without further discussion, hold that the Toomer case rules these causes, and that for the reasons set forth therein Article 934b—1 is violative of Article IV, Section 2 of the Constitution of the United States.

The State of Texas contends that the enforcement of the terms of said Act should not be enjoined if the Act be held unconstitutional because, it says, each of the petitioners has a full, adequate and complete remedy at law, in that under Article 7057b of Vernon's Texas Civil Statutes each of petitioners could pay, under protest, the fees imposed by Article 934b — 1 and bring suit in a proper court in Travis County, Texas, for the recovery thereof. Said Article does not provide for the payment of interest on the funds withheld, except such as may be collected by the State. There is no assurance that any interest will be collected, nor is any rate provided. To relegate these petitioners to the terms of this Article for the enforcement of their rights under an unconstitutional law would, in all probability, result in a...