Toomer v. Witsell, 1804.

• Decision Date: 13 September 1947
• Docket Number: No. 1804.,1804.
• Citation: 73 F. Supp. 371
• Parties: TOOMER et al. v. WITSELL et al.
• Court: U.S. District Court — District of South Carolina

73 F. Supp. 371

TOOMER et al. v. WITSELL et al.

No. 1804.

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

September 13, 1947.

COPYRIGHT MATERIAL OMITTED

Robert E. Falligant, of Savannah, Ga., Thomas P. Bussey, of Charleston, S. C., and Phyllis Kravitch and Aaron Kravitch, both of Savannah, Ga., for petitioners.

John M. Daniel, Atty. Gen., T. C. Callison and J. Monroe Fulmer, Asst. Attys. Gen., and Robinson & Robinson, of Columbia, S. C., for defendants.

Before PARKER, Circuit Judge, and WYCHE and TIMMERMAN, District Judges.

PARKER, Circuit Judge.

This is a suit by certain citizens of Georgia and a Florida corporation, engaged in fishing for shrimp in the coastal waters off the shores of the States of North Carolina, South Carolina, Georgia and Florida, against the individuals composing the South Carolina State Board of Fisheries, to enjoin the latter from enforcing against plaintiffs the provisions of the South Carolina statutes with respect to fishing for shrimp in South Carolina waters. Plaintiffs do not fish within the inland waters of South Carolina but within and beyond the three mile maritime belt of the coastal waters. They contend that the statutes are void as applied to them on the following grounds: (1) that the State of South Carolina has no jurisdiction of the coastal waters beyond low water mark; (2) that the statutes make arbitrary discrimination between residents and non residents of South Carolina in violation of the Privileges and Immunities clause, Art. IV, sec. 2(1), of the Constitution and the Equal Protection clause of the Fourteenth Amendment; and (3) that the statutes impose a tax on imports and a burden on interstate commerce in violation of sections 8 and 10 of Art. I. Interlocutory injunction has been asked; a court of three judges has been convened pursuant to sec. 266 of the Judicial Code, 28 U.S.C.A. § 380; and the case has been heard upon the merits and submitted for final decree.

The facts are that each of plaintiffs is operating boats engaged in fishing for shrimp off the shores of the states above named. The shrimp spend the Winter and multiply in the inland waters of the states and in the Spring and Summer months move out into the coastal waters, where they migrate southward in the Fall and Winter and northward in Spring and Summer. Fishing for them in the inland waters of South Carolina is absolutely forbidden and regulation of the fishing within the three mile maritime belt is attempted by the statutes of which complaint is made Sec. 3300 of the Code provides that these waters, as well as the inland waters, shall be "a common for the people of the State for the taking of fish". Sec. 3379 of the Code, as amended in 1947, imposes an annual license fee of $25.00 on boats engaged in shrimp fishing, if owned by residents of South Carolina, and of $2500.00, if owned by non residents, with provision that the license required of non residents be only $150.00 if they have operated boats in South Carolina during each of the preceding three years, but that not more than one hundred licenses be issued to non residents. Sec. 3374 imposes a tax of one-eighth cent per pound on green shrimp taken or "canned, shucked or shipped for market"; and sec. 3414 requires all boats licensed to trawl for shrimp in the waters of the state to "unload their catch of shrimp, and pack and properly stamp the same before shipping or transporting it to another State or the waters thereof". Violation of this provision is punishable by a fine of $500.00 or one year's imprisonment or both. Sec. 3407 provides punishment of $1,000.00 fine or six months imprisonment for other violations of the article regulating fisheries for which specific punishment is not otherwise provided.

Preliminary questions have been raised as to the jurisdiction of the court and as to whether injunctive relief is appropriate. It is clear, however, that there is diversity of citizenship and that the cause of action asserted by plaintiffs arises under the Constitution of the United States. Plaintiffs cannot bring themselves within the $150.00 license provision, and as to one or more of them the license fees which they will be required to pay under the act will amount to $5,000.00 or more. If they should not pay the license, the criminal penalties which they would incur by unlicensed trawling would make it impossible for them to continue trawling in South Carolina waters, and this would involve loss of business for a number of the plaintiffs in excess of $3,000.00 annually. There is no provision for payment of the license tax under protest and suit for its recovery; and it is clear that, if plaintiffs' contention as to the invalidity of the statutes is correct, they are threatened with irreparable injury and have no adequate remedy at law of which they may avail themselves. Ex parte Young, 209 U.S. 123, 155, 162, 28 S.Ct. 441, 52 L. Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Kennington v. Palmer, 255 U.S. 100, 41 S.Ct. 303, 65 L.Ed. 528; Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255; Packard v. Banton, 264 U.S. 140, 143, 44 S.Ct. 257, 68 L.Ed. 596. The statutes involved are clear and there is no such need for interpretation or other special circumstances as would warrant the Court in staying action pending proceedings in courts of the state, as was held proper in American Federation of Labor, Metal Trades Dept. v. Watson, 327 U.S. 582, 595, 599, 66 S.Ct. 761, 90 L.Ed. 873.

Defendants point to the fact that certain of plaintiffs have been found guilty of criminal violation of the statutes and say that in proper application of the clean hands doctrine they should not be heard by a court of equity. It is well settled, however, that courts of equity "do not close their doors because of plaintiff's misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication. Story, id., § 100. Pomeroy, id., § 399. They apply the maxim, not by way of punishment for extraneous transgressions, but upon considerations that make for the advancement of right and justice. They are not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion". Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 246, 54 S.Ct. 146, 147, 78 L.Ed. 293; Mas v. Coca Cola Co., 4 Cir., 163 F.2d 505. The matter involved in suit here is the constitutionality of the statutes complained of by plaintiffs, and neither this question nor the equitable relationship of the parties could possibly be affected by plaintiffs' disobedience of the statutes; and, at all events, the matter is one resting in our discretion, and we should not exercise that discretion to refuse a hearing to one who complains that state legislation affecting others as well as himself is violative of rights guaranteed by the Constitution of the United States.

We come then to the principal question in the case, which is whether the statutes are void on the ground that the state has no such jurisdiction over the coastal waters within the three-mile maritime belt as would support such legislation. The question is raised because of the recent decision of the Supreme Court in United States v. State of California, 67 S.Ct. 1658; but, for reasons hereinafter set forth, we do not regard that decision as controlling, in the absence of any assertion of rights by the federal government. The power of the states over such waters and the fishing rights in them is well settled by a long line of decisions, and we do not understand that it was intended by the decision in the California case to overrule these or to question in any respect the law as declared by them. On the contrary the Court was at great pains in the California case to distinguish the cases which dealt with the power of the states over fishing in coastal waters.

The right of the state to control the fish running in tide waters was laid down in an opinion by Chief Justice Waite in McCready v. State of Virginia, 94 U.S. 391, 394, 24 L.Ed. 248, as follows:

"The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. Pollard's Lessee v. Hagan, 3 How. 212 11 L.Ed. 565; Smith v. State of Maryland, 18 How. 71, 74 15 L.Ed. 269; Mumford v. Wardwell, 6 Wall. 423, 436 18 L.Ed. 756; Weber v. Board of Harbor Commissioners, 18 Wall. 57, 66 21 L.Ed. 798. In like manner, the States own the tidewaters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 367, 410 10 L.Ed. 997. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the State, which has consequently the right, in its discretion, to appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is in effect nothing more than a regulation of the use by the people of their common property. The right which the people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship."

That this right over fisheries applies within the three mile maritime belt and not merely to inland waters was laid down unequivocally in Manchester v....