TOOMER ET AL. v.
WITSELL ET AL.
334
MR. CHIEF JUSTICE VINSON delivered the opinion of the
Court.
This is a suit to enjoin as
unconstitutional the enforcement of several
The three-judge
n1 The court was convened pursuant to § 266 of the Judicial Code, 28
n2 73 F.Supp. 371 (1947).
n3 The appeal is authorized by § 266 of the Judicial Code, 28
[***1467]
The fishery which
n4 See Johnson and Lindner, Shrimp Industry of the
South Atlantic and Gulf States (U.S. Dept. of Commerce, Bureau of Fisheries
Investigational Rep. No. 21, 1934); Annual Rep. of S. C. State Board of
Fisheries (1946).
n5 At least three of the States (
n6 See Fla. Stat. Ann. § 374.14 (3) (Supp. 1946), as amended by 1947
Gen. Laws of Fla., Act 163; Ga. Code Ann. § §
45-216, 45-217 (1937); N. C. Gen. Stat. Ann. § 113-238, as amended 1947 Session Laws of N.
C., c. 256; S. C. Acts of 1947, Act 281, § §
1, 2, 5. See also statements by
the S. C. State Planning Board that "In revising these [shrimp] laws . . .
non-resident licenses [should be] placed on a par or reciprocal basis with
those of other states in the South Atlantic group" and "Under
existing regulations our fishermen are discriminated against."
[*389]
[**1159]
n7 S. C. Code Ann. §
3410 (Supp. 1944).
n8 S. C. Code Ann. §
3408.
The statutes appellants challenge
relate to shrimping during the open season in the three-mile belt: Section 3300
of the South Carolina Code provides that the waters in that area shall be
"a common for the people of the State for the taking of fish." n9
Section 3374 imposes a tax of 1/8 cent a pound on green, or raw, shrimp taken
in those waters. n10 Section 3379,
[***1468] as amended in 1947,
requires payment of a license fee of $ 25 for each shrimp boat owned by a
resident, and of $ 2,500 for each one owned by a non-resident. n11 Another
statute, not integrated in [*390] the Code, conditions the issuance of
non-resident licenses for 1948 and the years thereafter on submission of proof
that the applicants have paid South Carolina income taxes on all profits from
operations in that State during the preceding year. n12 And § 3414 requires that all boats [*391]
licensed to trawl for shrimp in the State's waters dock at a South
Carolina port and unload, pack, and stamp their catch "before shipping or
transporting it to another State or the waters thereof." n13 Violation of
the fishing laws entails suspension of the violator's [**1160]
license as well as a maximum of a $ 1,000 fine, imprisonment for a year,
or a combination of a $ 500 fine and a year's imprisonment. n14
n9 "The waters and bottoms of the bays, rivers,
creeks and marshes within the State or within three miles of any point along
low water mark on the coast thereof, not heretofore conveyed by grant from the
Legislature or lawful compact with the State, shall continue and remain as a
common for the people of the State for the taking of fish . . . ."
n10 "The following fisheries' tax is hereby
imposed upon all fish or fisheries products taken or canned, shucked or shipped
for market, to-wit . . . on each pound of green shrimp, one-eighth of one cent.
. . ."
n11 Prior to 1947 there was imposed on resident and
non-resident shrimpers alike a boat tax of $ 1.50 per ton; a personal license
tax of $ 5; and a tax of $ 5 for each shrimp trawl net. S. C. Code Ann. § § 3375, 3376, 3379. These taxes, with the possible exception of
§ 3375 imposing a boat tax graduated by
tonnage, apparently remain in effect and, in addition, § 3379 was amended as follows:
". . . All owners of shrimp boats, who are
residents of the State of South Carolina shall take out a license for each boat
owned by him, and said license shall be Twenty-five ($ 25.00) dollars per year,
and all owners of shrimp boats who are non-residents of the State of South
Carolina, and who have had one or more boats licensed in South Carolina during
each of the past three years, shall take out a license for each boat owned by
him and said license shall be One hundred and fifty ($ 150.00) dollars per
year, and all owners of shrimp boats who are non-residents of the State of
South Carolina and who have not had one or more boats licensed during each of
the past three years, shall take out a license for each boat owned by him and
said license shall be Two thousand five hundred ($ 2,500.00) dollars per
year." S. C. Acts of 1947, Act 281, §
1.
The appellants cannot qualify for $ 150 licenses and
hence are subject to the $ 2,500 provision.
As introduced in the legislature and passed by the South Carolina House
of Representatives, the bill to amend §
3379 did not contain the $ 150 provision. That provision was inserted by amendment in
the Senate at the instance of a senator from
Other parts of the same 1947 statute, not attacked in
this case, limit to 100 the number of non-resident boats which may be licensed
and forbid altogether the issuance of licenses, even on payment of the $ 2,500
fee, to residents of States which do not grant licenses to fish in their waters
to South Carolina residents at the same or a lower fee.
n12 "The Board of Fisheries, before issuing any
non-resident licenses in the year 1948 and thereafter, shall require proof that
the owner of the non-resident boat has paid all income taxes due to the State
of
n13 "All boats licensed by this State to trawl
for shrimp in the waters of the State of South Carolina shall land or dock at
some point in South Carolina, and shall unload their catch of shrimp, and pack
and properly stamp the same before shipping or transporting it to another State
or the waters thereof. . . ." The stamping refers to tax stamps.
n14 S. C. Acts of 1947, Act 281, § 4; S. C. Code Ann. § § 3407, 3414.
First. We are confronted at the outset with appellees'
contention, rejected by the District Court, that injunctive relief is
inappropriate in this case, regardless of the validity of the challenged
statutes, since appellants failed to show the imminence of irreparable injury and
did not come into court with clean hands.
[***HR1] As to the corporate appellant, we agree with
the appellees that there [***1469] has been no showing that enforcement of the
statutes would work an irreparable injury.
The record shows only that the corporation is an association of fish
dealers and that it operates no fishing boats. Indeed, neither the record nor
the appellants' brief sheds any light on how the statutes affect the
corporation, let alone how their enforcement will cause it irreparable
injury. Under such circumstances, the
corporation has no standing to ask a federal court to take the extraordinary
step of restraining enforcement of the state statutes. The remainder of this opinion will therefore
be addressed to the individual appellants' case.
[***HR2] As to them, it is agreed that the appellees
were attempting to enforce the statutes.
It is also clear that compliance with any but the income tax statute
would have [*392] required payment of large sums of money for
which South Carolina provides no means of recovery, that defiance would have
carried with it the risk of heavy fines and long imprisonment, and that
withdrawal from further fishing until a test case had been taken through the
South Carolina courts and perhaps to this Court would have resulted in a
substantial loss of business for which no compensation could be obtained. Except as to the income tax statute, we
conclude that appellants sufficiently showed the imminence of irreparable
injury for which there was no plain, adequate and complete remedy at law. n15
n15 Appellees stress American Federation of Labor
v. Watson, 327 U.S. 582 (1946). We think the doctrine of that case
applicable to one of the arguments made against § 3374, supra note 10. See the third division of this opinion, infra
p. 394. As to all the other statutes
except that relating to state income taxes, however, we agree with the District
Court that there is neither need for interpretation of the statutes nor any
other special circumstance requiring the federal court to stay action pending
proceedings in the State courts.
[***HR3] Appellants' position on the income tax
statute n16 is that it is unconstitutional for
n16 See note 12 supra.
n17 S. C. Code Ann. §
2469. This section provides that
a taxpayer may institute suit to recover the amounts paid within thirty days of
the payment under protest. See Argent
Lumber Co. v. Query, 178 S. C. 1, 5, 182 S. E. 93, 94 (1935).
[*393]
[***HR4] Some of the individual appellants had
previously been convicted of shrimping out of season and in inland waters. The
District Court held that this previous misconduct, not having any relation to
the constitutionality of the challenged statutes, did not call for application
of the clean hands maxim. We agree.
[***HR5] Second.
The appellants too press a contention which, if correct, would dispose
of [**1161] the case.
They urge that
n18 332
Since the present case evinces no
conflict between
n19 Appellants also contend that until 1924
[*394]
It does not follow from the existence of power to regulate, however,
that such power need not be exercised within the confines of generally
applicable Constitutional limitations.
In the view we take, the heart of this case is whether
[***HR6] Third. Appellants contend that § 3374, n20 which imposes a tax of 1/8 cent a
pound on green shrimp taken in the maritime belt, taxes imports and unduly
burdens interstate commerce in violation of § §
8 and 10 of Art. I of the Constitution.
We agree with the court below that there is no merit in this position.
n20 See note 10 supra.
[***HR7] Since
n21 See American Federation of Labor v. Watson,
327 U.S. 582 (1946); cf. Rescue Army
v. Municipal Court, 331
[***HR8] Nor does the statute violate the commerce
clause. It does not discriminate against interstate commerce in shrimp, and the
taxable event, the taking of shrimp,
[*395] occurs before the shrimp
can be said to have entered the flow of interstate commerce. n22
n22 See Hope Natural Gas Co. v. Hall,
274 U.S. 284 (1927); Lacoste v. Dept. of Conservation, 263 U.S.
545 (1924); Oliver Iron Co. v. Lord, 262 U.S. 172 (1923); Heisler
v. Thomas Colliery Co., 260 U.S. 245 (1922); Coe v. Errol,
116 U.S. 517 (1886).
Fourth. Appellants' most vigorous attack is directed at
§ 3379 n23 which, as amended in 1947,
requires non-residents of [**1162]
n23 See note 11 supra.
Article IV, § 2, so far as relevant, reads as follows:
"The Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the several
States."
[***HR9] The primary purpose of this clause, like the clauses
between which it is located -- those relating to full faith and credit and to
interstate extradition of fugitives from justice -- was to help fuse into one
Nation a collection of independent, sovereign States. It was designed to insure to a citizen of
State A who ventures into State B the same privileges which the citizens of
State B enjoy. n24 For protection of such equality the citizen of State A was
not to be restricted to the uncertain remedies afforded by diplomatic processes
and official retaliation. n25
[*396] "Indeed, without some
provision of the kind removing from the citizens of each State the disabilities
of alienage in the other States, and giving them equality of privilege with
citizens of those States, the Republic would have constituted little more than
a league of States; it would not have constituted the Union which now
exists." Paul v.
n24 See Paul v.
n25 Travis v. Yale & Towne Mfg. Co.,
supra note 24, at 82.
[***HR10] In line with this underlying purpose, it was
long ago decided that one of the privileges which the clause guarantees to
citizens of State A is that of doing business in State B on terms of
substantial equality with the citizens of that State. n26
n26 Ward v. Maryland, 12 Wall. 418
(1870); see also Chalker v. Birmingham & N. W. R. Co., 249
U.S. 522 (1919); Shaffer v. Carter, 252 U.S. 37, 52-53 (1920).
[***HR11] Like many other constitutional provisions,
the privileges and immunities clause is not an absolute. It does bar discrimination against citizens
of other States where there is no substantial reason for the discrimination
beyond the mere fact that they are citizens of other States. But it does not preclude disparity of
treatment in the many situations where there are perfectly valid independent
reasons for it. Thus the inquiry in each
case must be concerned with whether such reasons do exist and whether the
degree of discrimination bears a close relation to them. n27 The inquiry must
also, of course, be conducted with due regard for the principle that the States
should have considerable leeway in analyzing local evils and in prescribing
appropriate cures.
n27 See Travis v. Yale & Towne Mfg. Co.,
252 U.S. 60, 79 (1920).
[***HR12] [***HR13]
With these factors in mind, we turn to a consideration of the
constitutionality of § 3379.
By that statute South Carolina
plainly and frankly discriminates against non-residents, and the record leaves
little doubt but what the discrimination is so great that its [*397]
practical effect is virtually exclusionary. n28 This the appellees do
not seriously dispute. Nor do they argue
that since the statute is couched in terms of residence [***1472]
it is outside the scope of the privileges and immunities clause, which
speaks [**1163] of citizens.
Such an argument, we agree, would be without force in this case. n29
n28 The parties stipulated that in 1946, the year
before non-residents had to pay higher fees than residents, 100 non-resident
boats were licensed and that in 1947 only 15 such boats were licensed. Even
those 15 were presumably owned by persons who had fished in South Carolina
waters the three preceding years and were thus eligible for $ 150 licenses,
since the appellees conceded on oral argument here that no $ 2,500 licenses had
been taken out. See note 11 supra.
n29 See Blake v. McClung, 172 U.S. 239,
247 (1898); Chalker v. Birmingham & N. W. R. Co., 249 U.S. 522
(1919); Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 79
(1920).
[***HR14] As justification for the statute, appellees
urge that the State's obvious purpose was to conserve its shrimp supply, and
they suggest that it was designed to head off an impending threat of excessive
trawling. The record casts some doubt on
these statements. n30 But in any event,
[*398] appellees' argument assumes
that any means adopted to attain valid objectives necessarily squares with the
privileges and immunities clause. It
overlooks the purpose of that clause, which, as indicated above, is to outlaw
classifications based on the fact of non-citizenship unless there is something
to indicate that non-citizens constitute a peculiar source of the evil at which
the statute is aimed.
n30 It is relevant to note that the statute imposes no
limitation on the number of resident boats which may be licensed, and it was
stipulated that while the number of non-resident boats fell from 100 to 15
between 1946 and 1947, the total number of boats licensed increased during that
time from 254 to 271.
The reports of the State Board of Fisheries for
several years back, while expressing solicitude as to the need for conservation
measures, reveal equal concern with methods for increasing the market for
shrimp -- by advertising, air shipments, etc. -- and contain frequent
references to the economic importance of the shrimp industry to the State. The 1945 report, for example, said that
"The shrimp business in our State is quite an industry, it employs numbers
of men and boat crews spend large sums of money on repairs, gasoline, oil and
food besides the money that is spent by the individuals personally." In
connection with the possibility of air shipments to large consuming centers
such as New York, the same report said that air transportation "should
increase the consumption of same [i. e., seafoods] in large quantities; it will
also create a much greater demand for shrimp and seafoods all over the
universe, and it will place them in sections where they are very seldom
consumed with the result that many more people will get sold on the idea of
eating same." And the 1946 report's section on shrimp concluded with the
statement that "To be able to make this report is certainly a pleasure to
the State Board of Fisheries as we are able to show that the catch of shrimp
this season was nearly twice as large as in the previous year."
[***HR15] In this connection appellees mention, without
further elucidation, the fishing methods used by non-residents, the size of
their boats, and the allegedly greater cost of enforcing the laws against
them. One statement in the appellees'
brief might also be construed to mean that the State's conservation program for
shrimp requires expenditure of funds beyond those collected in license fees --
funds to which residents and not non-residents contribute. Nothing in the record indicates that
non-residents use larger boats or different fishing methods than residents,
that the cost of enforcing the laws against them is appreciably greater, or
that any substantial amount of the State's general funds is devoted to shrimp
conservation. But assuming such were the
facts, they would not necessarily support a remedy so drastic as to be a near
equivalent of total exclusion. The State
is not without power, for example, to restrict the type of equipment used in
its [*399] fisheries, n31 to graduate license fees
according to the size of the boats, n32 or even to charge non-residents a
differential [***1473] which would merely compensate the State for
any added enforcement burden they may impose or for any conservation
expenditures from taxes which only residents pay. We would be closing our eyes to reality, we
believe, if we concluded that there was a
[**1164] reasonable relationship
between the danger represented by non-citizens, as a class, and the severe
discrimination practiced upon them.
n31 See Fla. Stat. Ann. § 374.14 (5) (Supp. 1946); 1947 Gen. Laws of
Fla., Act 654; Ga. Code Ann. § 45-109
(1937); Johnson and Lindner, Shrimp Industry of the South Atlantic and Gulf
States (U.S. Dept. of Commerce, Bureau of Fisheries Investigational Rep.
No. 21, 1934) 62-63.
n32 South Carolina has itself imposed such a graduated
tax in years past. S. C. Code Ann.
§ 3375 (1942). See also Ga. Code Ann. § 45-210 (1937); N. C. Gen. Stat. Ann. § 113-165 (Supp. 1945).
Thus, § 3379 must be held unconstitutional unless
commercial shrimp fishing in the maritime belt falls within some unexpressed
exception to the privileges and immunities clause.
[***HR16] Appellees strenuously urge that there is such
an exception. Their argument runs as
follows: Ever since Roman times, animals ferae naturae, not having been
reduced to individual possession and ownership, have been considered as res
nullius or part of the "negative community of interests" and
hence subject to control by the sovereign or other governmental authority. More recently this thought has been expressed
by saying that fish and game are the common property of all citizens of the
governmental unit and that the government, as a sort of trustee, exercises this
"ownership" for the benefit of its citizens. In the case of fish, it has also been
considered that each government "owned" both the beds of its lakes,
streams, and tidewaters and the waters themselves; hence it must [*400]
also "own" the fish within those waters. Each government may,
the argument continues, regulate the corpus of the trust in the way best suited
to the interests of the beneficial owners, its citizens, and may discriminate
as it sees fit against persons lacking any beneficial interest. Finally, it is said that this special
property interest, which nations and similar governmental bodies have
traditionally had, in this country vested in the colonial governments and
passed to the individual States.
Language frequently repeated by
this Court appears to lend some support to this analysis. n33 But in only one
case, McCready v. Virginia, 94 U.S. 391 (1876), has the Court
actually upheld State action discriminating against commercial fishing or
hunting by citizens of other States where there were advanced no persuasive
independent reasons justifying the discrimination. n34 In that case the Court
sanctioned a Virginia statute applied so as to prohibit [*401]
citizens of other States, but not Virginia citizens, from planting
oysters in the tidal waters of the Ware River.
The right of Virginians in Virginia waters, the Court said, was "a
property right, and not a mere privilege or immunity of citizenship." [***1474] And an analogy was drawn between planting
oysters in a river bed and planting corn in state-owned land.
n33 The most extended exposition appears in the
majority opinion in Geer v. Connecticut, 161 U.S. 519 (1896).
n34 Appellees rely also upon Patsone v. Pennsylvania,
232 U.S. 138 (1914), and Haavik v. Alaska Packers Assn., 263 U.S.
510 (1924). The Patsone case involved a 1909 Pennsylvania statute
forbidding resident aliens to kill game or to possess firearms useful for that
purpose. On the record before it, the
Court concluded that it could not say that the Pennsylvania legislature was not
warranted in assuming that resident aliens were at that time "the peculiar
source of the evil that it desired to prevent." The statute was therefore
held not to violate the Fourteenth Amendment.
But the theory of the case was that there was a substantial reason for
the discrimination beyond the mere fact of alienage. The Haavik case involved the validity,
under an Act of Congress, of an Alaskan statute imposing on non-residents, but
not residents, a $ 5 fishing license fee.
In upholding the statute the Court pointed out that "We are not
here concerned with taxation by a State." And in considering the power of
Congress to authorize such a tax, it was added that the fee was a reasonable
contribution toward the protection which the local government afforded to non-residents.
It will be noted that there are at
least two factual distinctions between the present case and the McCready
case. First, the McCready case
related to fish which would remain in Virginia until removed by man. The present case, on the other hand, deals
with free-swimming fish which migrate through the waters of several States and
are off the coast of South Carolina only temporarily. Secondly, the McCready case involved
regulation of fishing in inland waters, whereas the statute now questioned [**1165]
is directed at regulation of shrimping in the marginal sea.
Thus we have, on the one hand, a
single precedent which might be taken as reading an exception into the
privileges and immunities clause and, on the other, a case which does not fall
directly within that exception. Viewed
in this light, the question before us comes down to whether the reasons which
evoked the exception call for its extension to a case involving the factual
distinctions here presented.
However satisfactorily the
ownership theory explains the McCready case, the very factors which make
the present case distinguishable render that theory but a weak prop for the
South Carolina statute. That the shrimp
are migratory makes apposite Mr. Justice Holmes' statement in Missouri
v. Holland, 252 U.S. 416, 434 (1920), that "To put the claim of the
State upon title is to lean upon a slender reed. Wild birds are not in the possession of
anyone; and possession is the beginning of ownership." [*402]
Indeed, only fifteen years after the McCready decision, a
unanimous Court indicated that the rule of that case might not apply to
free-swimming fish. n35 The fact that it is activity in the three-mile belt
which the South Carolina statute regulates is of equal relevance in considering
the applicability of the ownership doctrine.
While United States v. California, 332 U.S. 19 (1947), as
indicated above, does not preclude all State regulation of activity in the
marginal sea, the case does hold that neither the thirteen original colonies
nor their successor States separately acquired "ownership" of the
three-mile belt. n36
n35 Manchester v. Massachusetts, 139
U.S. 240, 265 (1891). In that case appellant, a citizen of Rhode Island, was
convicted of violating a Massachusetts statute which regulated fishing in
Buzzards Bay. The Court upheld
Massachusetts' power to enact the regulation, but pointed out that the statute
"makes no discrimination in favor of citizens of Massachusetts and against
citizens of other States." Ibid.
n36 332 U.S. 19, 31.
The whole ownership theory, in
fact, is now generally regarded as but a fiction expressive in legal shorthand
of the importance to its people that a State have power to preserve and
regulate the exploitation of an important resource. n37 And there is no
necessary conflict between that vital policy consideration and the
constitutional command that the State exercise that power, like its other
powers, so as not to discriminate without reason against citizens of other
States.
n37 See, e. g., Pound, An Introduction to
the Philosophy of Law, 197-202. The
fiction apparently gained currency partly as a result of confusion between the
Roman term imperium, or governmental power to regulate, and dominium,
or ownership. Power over fish and game was, in origin, imperium. Ibid.
These considerations lead us to
the conclusion that the McCready exception to the privileges and
immunities clause, if such it be, should not be expanded to cover this case.
[*403]
Thus we hold that commercial shrimping in the marginal sea, like other
common callings, is within the purview of the privileges and immunities [***1475]
clause. And since we have
previously concluded that the reasons advanced in support of the statute do not
bear a reasonable relationship to the high degree of discrimination practiced
upon citizens of other States, it follows that § 3379 violates Art. IV, § 2, of the Constitution.
[***HR17] Appellants maintain that by a parity of
reasoning the statute also contravenes the equal protection clause of the
Fourteenth Amendment. That may well be
true, but we do not pass on this argument since it is unnecessary to
disposition of the present case.
[***HR18] Fifth. Appellants contend that § 3414, n38 which requires that owners of
shrimp boats fishing in the maritime belt off South Carolina dock at a South
Carolina port and unload, pack, and stamp their catch (with a tax stamp) before
"shipping or transporting it to another state," burdens interstate
commerce [**1166] in shrimp in violation of Art. I, § 8, of the Constitution.
n38 See note 13 supra.
The record shows that a high
proportion of the shrimp caught in the waters along the South Carolina coast,
both by appellants and by others, is shipped in interstate commerce. There was
also uncontradicted evidence that appellants' costs would be materially
increased by the necessity of having their shrimp unloaded and packed in South
Carolina ports rather than at their home bases in Georgia where they maintain
their own docking, warehousing, refrigeration and packing facilities. In addition, an inevitable concomitant of a
statute requiring that work be done in South Carolina, even though that be
economically disadvantageous to the fishermen, is to divert to South Carolina
employment and business which might otherwise go to Georgia; the necessary
tendency of the statute is to
[*404] impose an artificial
rigidity on the economic pattern of the industry.
Appellees do not contest the fact
that the statute thereby burdens, to some extent at least, interstate commerce
in shrimp caught in waters off the South Carolina coast. Again, however, they
rely on the fact that the commerce affected is in fish rather than some other
commodity. They urge that South
Carolina, because of its ownership of the shrimp, could constitutionally
prohibit all shipments to other States.
It follows, they imply, that the State could impose lesser restrictions,
such as those here at issue, on out-of-state shipments.
There is considerable authority, starting
with Geer v. Connecticut, 161 U.S. 519 (1896), to support the
contention that a State may confine the consumption of its fish and game wholly
within the State's limits. We need not
pause to consider whether this power extends to free-swimming fish in the
three-mile belt, for even as applied to fish taken in inland waters it has been
held that where a State did not exercise its full power, but on the contrary
permitted shipments to other States, it could not at the same time condition
such shipments so as to burden interstate commerce. In Foster Packing Co.
v. Haydel, 278 U.S. 1 (1928), the Court held it was an abuse of
discretion for a district court not to enter an order temporarily enjoining, as
an unconstitutional burden on interstate commerce, enforcement of a Louisiana
statute which permitted the shipment of shrimp from Louisiana to other States
only if the heads and hulls had previously been removed. In distinguishing the Geer case, the
following comment was made:
"As the representative of its people, the State
might have retained the shrimp for consumption and use therein. . . . But by permitting its shrimp to be [*405]
taken and all the products thereof to be shipped and sold in interstate
commerce, the State necessarily releases its hold [***1476]
and, as to the shrimp so taken, definitely terminates its control. Clearly such authorization and the taking in
pursuance thereof put an end to the trust upon which the State is deemed to own
or control the shrimp for the benefit of its people. And those taking the shrimp under the
authority of the Act necessarily thereby become entitled to the rights of
private ownership and the protection of the commerce clause." n39
In Johnson v. Haydel, 278 U.S. 16 (1928), the same
conclusion was reached, on the basis of the Foster Packing Co. case, as
to a similar statute relating to oysters.
n39 278 U.S. 1, 13.
Similarly in the present case,
South Carolina has not attempted to retain for the use of its own people the
shrimp caught in the marginal sea. Indeed, the State has been eager to
stimulate interstate shipments and sales as a means of increasing the
employment and income of its shrimp industry. n40 Thus even if we assume that
South Carolina could retain for local consumption [**1167]
shrimp caught [*406] in the maritime belt to the same extent as if
they were taken in inland waters, the Geer case would not support § 3414.
n40 See note 30 supra. The District Court thought that the Foster
Packing Co. and Johnson cases had been rendered inapplicable to this
case by Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936).
The California statute which the Court upheld in that case, however, was of a
far different type than the one with which we are now dealing. The statute in effect limited the number of
fish which could be reduced to fish flour as apart from those processed or sold
in other forms. In rejecting the
appellant's argument that the statute unconstitutionally burdened interstate
commerce, the Court said that "It in no way limits or regulates . . . the
movement of the sardines from outside into the state, or the movement of the
manufactured product from the state to the outside. The act regulates only the manufacture within
the state. Its direct operation,
intended and actual, is wholly local." 297 U.S. 422, 425-26.
[***HR19] In upholding this statute, the court below
adduced a reason not advanced by appellees, that the requirements as to
docking, unloading, packing, and affixing a tax stamp were a proper means of
insuring collection of the 1/8 cent a pound tax. n41 But the importance of
having commerce between the forty-eight States flow unimpeded by local barriers
persuades us that State restrictions inimical to the commerce clause should not
be approved simply because they facilitate in some measure enforcement of a
valid tax.
n41 The District Court also said that the requirements
of § 3414 were a reasonable means of
maintaining the good reputation of products originating in South Carolina. But the appellees do not pretend that the
statute results in better preservation of the shrimp in healthful form. Moreover, since shrimp caught off the shores
of South Carolina are indistinguishable from those taken off the shores of
neighboring States, purchasers would have no reason to suppose that shrimp
packed in Georgia, if inferior, were products of South Carolina.
Thus we hold that § 3414 violates the commerce clause of Art. I,
§ 8 of the Constitution.
To sum up, we hold that the
District Court had jurisdiction to entertain the attacks pressed by the
individual appellants, but not the corporate appellant, on all the statutes
save the one relating to income taxes; that South Carolina has power, in the
absence of a conflicting federal claim, to regulate fishing in the marginal
sea; and that in § 3374 of the South
Carolina Code, though not in § § 3379
and 3414, the State has exercised that power in a manner consistent with restraints
which the Constitution imposes upon the States.
The District Court's [*407] judgment refusing equitable relief is
affirmed with respect to § 3374 and the
income tax statute and reversed with respect to § § 3379 and 3414.
Affirmed in part and reversed
in part.
MR. JUSTICE BLACK concurs in
the [***1477] judgment of the Court and all of the opinion
except part Fifth.
CONCURBY:
FRANKFURTER; RUTLEDGE
CONCUR:
MR. JUSTICE FRANKFURTER, whom MR.
JUSTICE JACKSON joins, concurring.
Barring the portion entitled Fourth,
I join the Court's opinion. While I
agree that South Carolina has exceeded her power to control fisheries within
her waters, I rest the invalidity of her attempt to do so on the Commerce
Clause. The Court reaches this result by what I deem to be a misapplication of
the Privileges-and-Immunities Clause of Art. IV, § 2, of the Constitution.
[***HR20] To regard any limitation upon the
Privileges-and-Immunities Clause as "some unexpressed exception" and
not give any clue to the basis on which such an "exception" may be
implied is to leave the matter too much at large. It deals with the Constitution as though its
various clauses were discrete and not a coherent scheme for government. Specifically, the Privileges-and-Immunities
Clause, like the Contract Clause, must be put "in its proper perspective
in our constitutional framework." East New York Savings Bank v. Hahn,
326 U.S. 230, 232.
Like other provisions of the
Constitution, the Clause whereby "The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several
States" must be read in conjunction with the Tenth Amendment to the
Constitution. This clause presupposes
the continued retention [**1168] by the States of powers [*408]
that historically belonged to the States, and were not explicitly given
to the central government or withdrawn from the States. I think it is fair to summarize the decisions
which have applied Art. IV, § 2, by
saying that they bar a State from penalizing the citizens of other States by subjecting
them to heavier taxation merely because they are such citizens or by
discriminating against citizens of other States in the pursuit of ordinary
livelihoods in competition with local citizens.
It is not conceivable that the framers of the Constitution meant to
obliterate all special relations between a State and its citizens. This Clause does not touch the right of a
State to conserve or utilize its resources on behalf of its own citizens,
provided it uses these resources within the State and does not attempt a
control of the resources as part of a regulation of commerce between the
States. A State may care for its own in
utilizing the bounties of nature within her borders because it has technical
ownership of such bounties or, when ownership is in no one, because the State
may for the common good exercise all the authority that technical ownership
ordinarily confers.
When the Constitution was adopted,
such, no doubt, was the common understanding regarding the power of States over
their fisheries, and it is this common understanding that was reflected in McCready
v. Virginia, 94 U.S. 391. The McCready case is not an isolated
decision to be looked at askance. It is
the symbol of one of the weightiest doctrines in our law. It expressed the momentum of legal history
that preceded it, and around it in turn has clustered a voluminous body of
rulings. Not only has a host of State
cases applied the McCready doctrine as to the power of States to control
their game and fisheries for the benefit of their own citizens, but in our own
day this Court formulated the amplitude of the
[*409] McCready doctrine
by referring to "the regulation or distribution of the public domain, or
of the common property or resources of the people of the State, the enjoyment
of which may be limited to its citizens as against both aliens and the citizens
of other States." Truax v. Raich, 239 U.S. 33, 39-40.
[***HR21] But a State cannot project its powers [***1478]
over its own resources by seeking to control the channels of commerce
among the States. It is one thing to say
that a food supply that may be reduced to control by a State for feeding its
own people should be only locally consumed.
The State has that power and the Privileges-and-Immunities Clause is no
restriction upon its exercise. It is a
wholly different thing for the State to provide that only its citizens shall be
engaged in commerce among the States, even though based on a locally available
food supply. That is not the exercise of
the basic right of a State to feed and maintain and give enjoyment to its own
people. When a State regulates the sending
of products across State lines we have commerce among the States as to which
State intervention is subordinate to the Commerce Clause. That is the nub of
the decision in Foster-Fountain Packing Co. v. Haydel, 278 U.S.
1. South Carolina has attempted such regulation of commerce in shrimp among the
States. In doing so she has exceeded the
restrictions of the Commerce Clause.
MR. JUSTICE RUTLEDGE, concurring.
I agree with the result and the
Court's opinion, subject to one
interpretation or qualification of the opinion's Fifth part.
The requirement that owners of
boats fishing in the maritime belt dock at a South Carolina port, unload, pack,
and stamp their catch (for tax purposes), before "shipping or transporting
it to another state," is not merely a regulation [*410]
of commerce burdening it in the sense of materially increasing the
shipper's costs. Many valid regulations
of commerce do this. The regulation in
question goes farther. It is aimed in
terms directly at interstate commerce alone, and thus would seem to be
discriminatory in intent and effect upon
[**1169] that commerce. Moreover,
in my opinion, it is of such a character that, if applied, for all practical
purposes it would block the commerce.
Since it was exactly that sort of
state regulation the commerce clause was designed to strike down, I agree that
this one cannot stand. The same
considerations I also think would be applicable to nullify the license fees
levied against nonresidents, since upon the record their transportation of catches
would seem to be exclusively in interstate commerce, or practically so.