Tuttle v. Wood

• Citation: 35 S.W.2d 1061
• Decision Date: 05 November 1930
• Docket Number: No. 8485.,8485.
• Parties: TUTTLE et al. v. WOOD et al.
• Court: Texas Court of Appeals

35 S.W.2d 1061

TUTTLE et al. v. WOOD et al.

No. 8485.

Court of Civil Appeals of Texas. San Antonio.

November 5, 1930.

Rehearing Denied February 25, 1931.

Appeal from District Court, Aransas County; T. M. Cox, Judge.

Action by J. Robert Tuttle and others against A. E. Wood and others. From the judgment, plaintiffs appeal.

Affirmed.

J. D. Todd, of Corpus Christi, for appellants.

Robert Lee Bobbitt and Jack Blalock, both of Austin, for appellees.

SMITH, J.

This action brings into question the validity of statutes regulating, and in certain cases prohibiting, the exploitation of fish and shrimp in certain waters along the coast of Aransas, San Patricio and Nueces counties, for commercial purposes. We regret that, although the questions raised are quite important, appellees have filed no brief in the case. The legislative acts assailed are chapter 118, Acts Reg. Sess. 41st Leg. (1929) p. 265 (Vernon's Ann. P. C. art. 978f); chapter 119, Id., p. 269 (Vernon's Ann. P. C. art. 941); chapter 75, 2d Called Sess., 41st Leg. (1929) p. 150 (Vernon's Ann. P. C. art. 952l— 3). The acts will be hereinafter referred to by their chapter numbers. The case went off on general demurrer which the trial court sustained against appellants' amended petition, the averments of which must be taken as true in so far as they state specific facts.

It was alleged in the stricken pleading that the petitioners, appellants herein, are citizens of this state, as distinguished from aliens, engaged in catching and marketing fish and shrimp from the waters off the coast of Aransas, San Patricio and Nueces counties; that for these purposes appellants "have fully and satisfactorily complied with all the laws and statutory requirements regulating the use of seines and nets and that their seines and nets and other equipment have been duly inspected and approved by the proper officers and found to conform in all particulars thereto, and that plaintiffs are now lawfully engaged in fishing and shrimping with seines, nets and other equipment aforesaid in the waters hereinafter specifically named and described, as market fishermen and dealers therein."

It was alleged that the officials of the State Game, Fish and Oyster Commission, and the law enforcing officers of the named counties, are attempting and threatening to enforce said acts against appellants, and that such enforcement will have the effect of destroying appellants' said business and will render valueless the supplies, equipment, boats, and buildings which appellants have accumulated in the lawful establishment and prosecution of their business, of the value of $500,000.

By the provisions of chapter 118, the office of Game, Fish and Oyster Commissioner was abolished, and the powers and functions of such office were merged into the Game, Fish and Oyster Commission, thereby created. Those powers and functions are prescribed in that act, in great detail.

Chapter 119 is a penal statute, which provides that it shall be unlawful for any person, under the penalty therein prescribed, to use any seine or similar device for catching fish and shrimp, or to have such devices in his possession, without a permit issued by said commission, within certain waters along said coast line. The act contains certain exceptions not necessary to set out here, fixes certain penalties for violation of said provisions, and concludes with this provision: "That the Game, Fish and Oyster Commissioner of Texas or his deputy shall have the power and right to seize and hold nets, seines or other tackle in his possession as evidence until after the trial of defendant and no suit shall be maintained against him therefor."

The later act, chapter 75, containing provisions, prohibitions, and penalties similar to those in chapter 119, was made to apply to certain other waters not necessary to describe herein.

It is contended by appellants that neither the Game, Fish and Oyster Commission, nor its executive secretary, has been given any authority to enforce the game, fish, and oyster laws; that previously that authority was lodged in the Game, Fish and Oyster Commissioner, but that since the latter office was abolished by express provisions of chapter 118, no official has the power to enforce the provisions of said acts. It is true that the single office was abolished as contended, but it was further expressly provided in the abolishing act that the powers, duties, and functions theretofore exercised by the commissioner should thenceforth be exercised by the commission, acting directly or through its executive secretary therein provided for. Appellants' contention is therefore without merit.

It is next contended, in effect, that because appellants were pursuing their business in accordance with prior laws, and under licenses issued to them by the proper state authorities under those laws, the Legislature had no power to impose additional or more stringent regulations and prohibitions, whereby appellants' rights under prior laws were further restricted. It must be conceded that the state has the inherent power, to be exercised through the Legislature, to regulate the taking of fish and shrimp from its public waters, and to prohibit from time to time such taking, in order to conserve those natural resources for the ultimate benefit of all the people. So long as that power is reasonably exercised by the legislative authority, no other branch of the government may interfere therewith. Ordinarily, the necessity or reasonableness of regulation or prohibition in specific cases, for the time being, are left to the discretion of the Legislature, whose determination thereof, in the exercise of a sound discretion, is conclusive upon the courts. The power to originate such legislation carries with it the further power to change existing laws, including regulation and prohibition, to meet changing conditions, and this power is not lost simply because those affected have been licensed to operate under and by virtue of the conditions of prior laws. They were charged with notice that under the grant of power the Legislature could further legislate upon the subject.

So may it be said that the Legislature may separate the rights of those engaged in the wholesale business of taking and marketing the products of public waters, from the rights of the individual members of the public, and may exclude the former from, while admitting the latter to, the privilege of fishing in those waters, as is sought to be done by the statutes here in question. The rights of the general public are paramount to the rights of those who would commercialize those resources for profit.

These observations, although general in their nature and effect, lead to the conclusion that appellants' petition did not assert a cause of action sufficient to warrant a judicial declaration against the validity of the acts in question, and we are therefore of the opinion that the trial court did not err in sustaining the general demurrer.

The judgment is affirmed.

On Motion for Rehearing.

In their motion for rehearing appellants complain of the failure of this court to specifically dispose of all of the many questions raised in their pleadings. In deference to this complaint we will discuss those questions not directly disposed of in the original opinion.

By an act effective September 1, 1929, the Legislature abolished the office of Game, Fish and Oyster Commissioner, and by the same act "created the Game, Fish and Oyster Commission which shall have the authority, powers, duties and functions heretofore vested in the Game, Fish and Oyster Commissioner, except where in conflict with this Act." Chapter 118, Acts Reg. Sess. 41st Leg. (1929) p. 265 (Vernon's Ann. P. C. art. 978f). This commission was made to consist of six members, with power to appoint an executive secretary, to act as its "chief executive officer," through whom the "Commission may perform its duties," and "may delegate to him such executive duties" as the commission "shall deem proper." The act contains other provisions not deemed necessary to be set out here.

It is provided in an act approved June 29, 1929 (chapter 75, Acts 41st Leg., 2d Called Sess., p. 150 [Vernon's Ann. P. C. art. 952l— 3]), that: "It shall be unlawful for any person to place, set, use or drag any seine, net or other device for catching fish or shrimp other than the ordinary pole and line, casting rod and reel, artificial bait, trot line, set line, or cast net or minnow seine of more than twenty feet in length for catching bait, or have in his possession any seine, net or trawl in or on the waters of the Gulf shore line one-fourth mile from mean low tide from the South end of Padre Island to a point on Mustang Island two miles north of Corpus Christi Pass," and appropriate penalties are prescribed for violation of said provisions.

As amended by an act effective January 1, 1930 (chapter 119, Gen. Laws 41st Leg...