Fishermen who were citizens and residents of Georgia, and an
incorporated fish dealers' association, sued in a federal court in
South Carolina to enjoin state officials from enforcing statutes of
that State regulating commercial shrimp fishing in the three-mile
maritime belt off the coast, challenging the statutes as violative
of the Federal Constitution.
Held:
1. Since the record does not show that enforcement of the
statutes would irreparably injure the association of fish dealers,
the association has no standing to ask a federal court to enjoin
their enforcement. P.
334 U. S.
391.
2. Since the state law permits any taxpayer who believes a tax
illegal to pay it under protest and sue in a state court to recover
the amount so paid, and since the individual plaintiffs made no
showing that they could not utilize that procedure to raise their
constitutional objections to a statute imposing upon nonresidents
an income tax on profits from operations in the state, it cannot be
said that they are without an adequate remedy at law; and equitable
relief was properly denied as to that statute. Pp.
334 U. S.
391-392.
3. Since defiance of other statutes defendants were attempting
to enforce would involve risks of heavy fines and long
imprisonment, and since compliance with them or withdrawal from
further fishing until a test case could be litigated to a final
conclusion would result in substantial financial losses for which
no compensation could be obtained under the laws of the state, the
individual plaintiffs sufficiently showed the imminence of
irreparable injury for which there was no plain, adequate and
complete remedy at law; and, if those statutes were
unconstitutional, equitable relief against their enforcement was
appropriate. Pp.
334 U. S.
391-392.
4. Since the fact that some of the individual plaintiffs had
previously been convicted of shrimping out of season and in inland
waters had no relation to the constitutionality of the challenged
statutes, this misconduct did not call for application of the clean
hands maxim. P.
334 U. S.
393.
Page 334 U. S. 386
5. Since the present case evinces no conflict between South
Carolina's regulatory scheme and any assertion of federal power,
the State has sufficient interests in the shrimp fishery within
three miles of its coast so that it may exercise its police power
to protect and regulate that fishery -- within the confines of
generally applicable constitutional limitations. Pp.
334 U. S.
393-394.
6. Section 3374, S.C.Code, which imposes a tax of 1/8� a pound
on green shrimp taken in the maritime belt, does not tax imports or
unduly burden interstate commerce in violation of Art. I, §§ 8 and
10, of the Constitution. Pp.
334 U. S.
394-395.
7. Section 3379, S.C.Code, requiring nonresidents of South
Carolina to pay a license fee of $2,500 for each shrimp boat and
residents to pay a fee of only $25, violates the privileges and
immunities clause of Art. IV, § 2, of the Constitution. Pp.
334 U. S.
395-403.
(a) The privileges and immunities clause was intended to outlaw
classifications based on the fact of noncitizenship unless there is
something to indicate that noncitizens constitute a peculiar source
of the evil at which the statute is aimed, and, in this case, there
is no convincing showing of a reasonable relationship between the
alleged danger to the shrimp supply represented by noncitizens, as
a class, and the severe discrimination practiced upon them. Pp.
334 U. S.
396-399.
(b) Commercial shrimping in the marginal sea, like other common
callings, is within the purview of the privileges and immunities
clause.
McCready v. Virginia, 94 U. S.
391, distinguished. Pp.
334 U. S.
399-403.
8. Section 3414, S.C.Code, 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 in shrimp in violation of the commerce
clause of Art. I, § 8, of the Constitution.
Geer v.
Connecticut, 161 U. S. 519,
distinguished. Pp.
334 U. S.
403-407.
73 F.
Supp. 371, affirmed in part and reversed in part.
A federal district court denied an injunction against the
enforcement of certain allegedly unconstitutional South Carolina
statutes governing commercial shrimp fishing in the three-mile
maritime belt off the coast of that State.
73 F.
Supp. 371. On direct appeal to this Court,
affirmed in part
and reversed in part, p.
334 U. S.
407.
Page 334 U. S. 387
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
This is a suit to enjoin as unconstitutional the enforcement of
several South Carolina statutes governing commercial shrimp fishing
in the three-mile maritime belt off the coast of that State.
Appellants, who initiated the action, are five individual
fishermen, all citizens and residents of Georgia, and a nonprofit
fish dealers' organization incorporated in Florida. Appellees are
South Carolina officials charged with enforcement of the
statutes.
The three-judge Federal District Court which was convened to
hear the case [
Footnote 1]
upheld the statutes, denied an injunction and dismissed the suit.
[
Footnote 2] On direct appeal
from that judgment, [
Footnote
3] we noted probable jurisdiction.
The fishery which South Carolina attempts to regulate by the
statutes in question is part of a larger shrimp fishery extending
from North Carolina to Florida. [
Footnote 4] Most of
Page 334 U. S. 388
the shrimp in this area are of a migratory type, swimming south
in the late summer and fall and returning northward in the spring.
Since there is no federal regulation of the fishery, the four
States most intimately concerned have gone their separate ways in
devising conservation and other regulatory measures. While action
by the States has followed somewhat parallel lines, efforts to
secure uniformity throughout the fishery have, by and large, been
fruitless. [
Footnote 5] Because
of the integral nature of the fishery, many commercial shrimpers,
including the appellants, would like to start trawling off the
Carolinas in the summer, and then follow the shrimp down the coast
to Florida. Each State has been desirous of securing for its
residents the opportunity to shrimp in this way, but some have
apparently been more concerned with channeling to their own
residents the business derived from local waters. Restrictions on
nonresident fishing in the marginal sea, and even prohibitions
against it, have now invited retaliation to the point that the
fishery is effectively partitioned at the state lines; bilateral
bargaining on an official level has come to be the only method
whereby any one of the States can obtain for its citizens the right
to shrimp in waters adjacent to the other States. [
Footnote 6]
Page 334 U. S. 389
South Carolina forbids trawling for shrimp in the State's inland
waters, [
Footnote 7] which are
the habitat of the young shrimp for the first few months of their
life. It also provides for a closed season in the three-mile
maritime belt during the spawning season, from March 1 to July 1.
[
Footnote 8] The validity of
these regulations is not questioned.
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."
[
Footnote 9] Section 3374
imposes a tax of 1/8� a pound on green, or raw, shrimp taken in
those waters. [
Footnote 10]
Section 3379, 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 nonresident. [
Footnote 11] Another statute, not integrated in
Page 334 U. S. 390
the Code, conditions the issuance of nonresident 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. [
Footnote 12] And § 3414 requires
that all boats
Page 334 U. S. 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." [
Footnote 13]
Violation of the fishing laws entails suspension of the violator's
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.
[
Footnote 14]
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.
As to the corporate appellant, we agree with the appellees that
there has been no showing that enforcement of the statute 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.
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
Page 334 U. S. 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. [
Footnote 15]
Appellants' position on the income tax statute [
Footnote 16] is that it is unconstitutional
for South Carolina to require Georgia residents to pay South
Carolina income taxes on profits made from operations in South
Carolina waters. Another South Carolina statute, however, permits
any taxpayer who believes a tax to be "illegal for any cause" to
pay the tax under protest and then sue in a state court to recover
the amounts so paid. [
Footnote
17] In the absence of any showing by appellants that they could
not take advantage of this procedure to raise their constitutional
objections to the tax, we cannot say that they do not have an
adequate remedy at law.
Page 334 U. S. 393
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.
Second. The appellants too press a contention which, if
correct, would dispose of the case. They urge that South Carolina
has no jurisdiction over coastal waters beyond the low-water mark.
In the court below,
United States v. California,
332 U. S. 19
(1947), was relied upon for this proposition. Here, appellants seem
to concede, and correctly so, that such is neither the holding nor
the implication of that case; for in deciding that the United
States, where it asserted its claim, had paramount rights in the
three-mile belt, the Court pointedly quoted and supplied emphasis
to a statement in
Skiriotes v. Florida, 313 U. S.
69,
313 U. S. 75
(1941), that
"It is also clear that Florida has an interest in the proper
maintenance of the sponge fishery, and that the [state] statute,
so far as applied to conduct within the territorial waters of
Florida, in the absence of conflicting federal legislation, is
within the police power of the State. [
Footnote 18]"
Since the present case evinces no conflict between South
Carolina's regulatory scheme and any assertion of federal power,
the District Court properly concluded that the State has sufficient
interests in the shrimp fishery within three miles of its coast so
that it may exercise its police power to protect and regulate that
fishery. [
Footnote 19]
Page 334 U. S. 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 South Carolina's admitted
power has been so exercised. We now proceed to various aspects of
that problem.
Third. Appellants contend that § 3374, [
Footnote 20] which imposes a tax of 1/8� 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.
Since South Carolina has power to regulate fishing in the
three-mile belt, at least where the federal government has made no
conflicting assertion of power, fish caught in that belt cannot be
considered "imports" in a realistic sense of the word. Appellants
urge, however, that the tax is imposed on shrimp caught outside, as
well as within the three-mile limit. On its face, the statute has
no such effect, and appellants call our attention to no South
Carolina decision so interpreting it. Since we do not have the
benefit of interpretation by the State courts, and since this suit
for an injunction does not present a concrete factual situation
involving the application of the statute to shrimping beyond the
imaginary three-mile line, it is inappropriate for us to rule in
the abstract on the extent of the State's power to tax in this
regard. [
Footnote 21]
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,
Page 334 U. S. 395
occurs before the shrimp can be said to have entered the flow of
interstate commerce. [
Footnote
22]
Fourth. Appellants' most vigorous attack is directed at
§ 3379, [
Footnote 23] which,
as amended in 1947, requires nonresidents of South Carolina to pay
license fees one hundred times as great as those which residents
must pay. The purpose and effect of this statute, they contend, is
not to conserve shrimp, but to exclude nonresidents, and thereby
create a commercial monopoly for South Carolina residents. As such,
the statute is said to violate the privileges and immunities clause
of Art. IV, § 2, of the Constitution and the equal protection
clause of the Fourteenth Amendment.
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."
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.
[
Footnote 24] 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. [
Footnote
25]
Page 334 U. S. 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.
Virginia, 8 Wall. 168,
75 U. S. 180
(1868).
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. [
Footnote 26]
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. [
Footnote 27] The inquiry must also, of
course, be conducted with due regard for the principal that the
States should have considerable leeway in analyzing local evils and
in prescribing appropriate cures.
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 nonresidents, and the record leaves little
doubt but what the discrimination is so great that its
Page 334 U. S. 397
practical effect is virtually exclusionary. [
Footnote 28] This the appellees do not
seriously dispute. Nor do they argue that, since the statute is
couched in terms of residence, it is outside the scope of the
privileges and immunities clause, which speaks of citizens. Such an
argument, we agree, would be without force in this case. [
Footnote 29]
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. [
Footnote 30]
But, in any event,
Page 334 U. S. 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 noncitizenship unless there is something to indicate that
noncitizens constitute a peculiar source of the evil at which the
statute is aimed.
In this connection, appellees mention, without further
elucidation, the fishing methods used by nonresidents, 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 nonresidents contribute.
Nothing in the record indicates that nonresidents 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
Page 334 U. S. 399
fisheries, [
Footnote 31]
to graduate license fees according to the size of the boats,
[
Footnote 32] or even to
charge nonresidents a differential 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 reasonable relationship between the
danger represented by noncitizens, as a class, and the severe
discrimination practiced upon them.
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.
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
Page 334 U. S. 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. [
Footnote 33] 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. [
Footnote 34] In that case, the Court sanctioned a
Virginia statute applied so as to prohibit
Page 334 U. S. 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." And an
analogy was drawn between planting oysters in a river bed and
planting corn in state-owned land.
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 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 satisfactory 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,
252 U. S. 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.
Page 334 U. S. 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. [
Footnote 35] 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. [
Footnote 36]"
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. [
Footnote 37] 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.
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.
Page 334 U. S. 403
Thus, we hold that commercial shrimping in the marginal sea,
like other common callings, is within the purview of the privileges
and immunities 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.
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.
Fifth. Appellants contend that § 3414, [
Footnote 38] 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 in shrimp in violation of Art.
I, § 8, of the Constitution.
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
Page 334 U. S. 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-Fountain 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
Page 334 U. S. 405
taken and all the products thereof to be shipped and sold in
interstate commerce, the state necessarily releases its hold, 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. [
Footnote 39]"
In
Johnson v. Haydel, 278 U. S. 16
(1928), the same conclusion was reached, on the basis of the
Foster-Fountain Packing Co. case, as to a similar statute
relating to oysters.
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. [
Footnote 40] Thus, even if we assume that South
Carolina could retain for local consumption shrimp caught
Page 334 U. S. 406
in the maritime belt to the same extent as if they were taken in
inland waters, the
Geer case would not support § 3414.
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� a pound tax. [
Footnote 41] 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.
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
Page 334 U. 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 judgment of the Court and all
of the opinion except part
Fifth.
[
Footnote 1]
The court was convened pursuant to § 266 of the Judicial Code,
28 U.S.C. § 380.
[
Footnote 2]
73 F.
Supp. 371 (1947).
[
Footnote 3]
The appeal is authorized by § 266 of the Judicial Code, 28
U.S.C. § 380.
[
Footnote 4]
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).
[
Footnote 5]
At least three of the States (Florida, Georgia, and South
Carolina) belong to the Atlantic States Marine Fisheries
Commission, one of the principal aims of which is to secure the
enactment of uniform fisheries laws. The Commission was established
pursuant to an interstate compact which has been ratified by at
least thirteen eastern States. Its duties, however, are largely
consultive and advisory, and, to date, its efforts have produced
little in the way of concrete results insofar as the South Atlantic
shrimp fishery is concerned.
See 56 Stat. 267 (1942);
Fla.Stat.Ann. § 374.43; Ga.Code Ann. § 45-1001
et seq.
(Supp.1947); S.C.Code Ann. (1944 Supp.) § 1776-1; Annual Rep. of
the S.C. State Board of Fisheries (1943);
id. (1944);
id. (1945);
id. (1946).
[
Footnote 6]
See Fla.Stat.Ann. § 374.14(3), as amended by 1947
Gen.Laws of Fla., Act 163, c. 23777; 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 . . . , nonresident 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." S.C. State Planning Board Bull No. 14, p. 59 (1944).
[
Footnote 7]
S.C.Code Ann. § 3410 (Supp. 1944).
[
Footnote 8]
S.C.Code Ann. § 3408.
[
Footnote 9]
"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. . . ."
[
Footnote 10]
"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.
. . ."
[
Footnote 11]
Prior to 1947, there was imposed on resident and nonresident
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 nonresidents 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 nonresidents 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 Beaufort County, which is the coastal county adjoining
Georgia.
See House Bill 555; Senate Bill 576; Senate
Journal No. 69, May 9, 1947, pp. 53-5; Charleston News and Courier,
May 17, 1947, p. 1, cols. 2-3.
Other parts of the same 1947 statute, not attacked in this case,
limit to 100 the number of nonresident 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.
Id., §§ 2, 5.
[
Footnote 12]
"The Board of Fisheries, before issuing any nonresident licenses
in the year 1948 and thereafter, shall require proof that the owner
of the nonresident boat has paid all income taxes due to the State
of South Carolina for profits made from operations in South
Carolina during the preceding year."
Id., § 3.
[
Footnote 13]
"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.
[
Footnote 14]
S.C.Acts of 1947, Act 281, § 4; S.C.Code Ann. §§ 3407, 3414.
[
Footnote 15]
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.
334 U. S. 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.
[
Footnote 16]
See note 12
supra.
[
Footnote 17]
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).
[
Footnote 18]
332 U. S. 332 U.S.
19,
332 U. S. 38
(1947).
[
Footnote 19]
Appellants also contend that, until 1924, South Carolina had
itself limited its boundaries by the low-water mark, and had
asserted no power over the maritime belt. But, as the District
Court held, the statute cited by appellants need not be given the
effect which they would attribute to it, and, even if it were so
construed, it did not impose a constitutional limit on the power of
future legislatures.
[
Footnote 20]
See note 10
supra.
[
Footnote 21]
See American Federation of Labor v. Watson,
327 U. S. 582
(1946);
cf. Rescue Army v. Municipal Court, 331 U.
S. 549 (1947).
[
Footnote 22]
See Hope Natural Gas Co. v. Hall, 274 U.
S. 284 (1927);
Lacoste v. Dept. of
Conservation, 263 U. S. 545
(1924);
Oliver Iron Mining 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).
[
Footnote 23]
See note 11
supra.
[
Footnote 24]
See Paul v.
Virginia, 8 Wall. 168,
75 U. S.
180-181 (1868);
Travis v. Yale & Towne Mfg.
Co., 252 U. S. 60,
252 U. S. 78
(1920).
[
Footnote 25]
Travis v. Yale & Towne Mfg. Co., supra, note 24 at
252 U. S.
82.
[
Footnote 26]
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,
252 U. S. 52-53
(1920).
[
Footnote 27]
See Travis v. Yale & Towne Mfg. Co., 252 U. S.
60,
252 U. S. 79
(1920).
[
Footnote 28]
The parties stipulated that, in 1946, the year before
nonresidents had to pay higher fees than residents, 100 nonresident
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.
[
Footnote 29]
See Blake v. McClung, 172 U. S. 239,
172 U. S. 247
(1898);
Chalker v. Birmingham & N.W. R. Co.,
249 U. S. 522
(1919);
Travis v. Yale & Towne Mfg. Co., 252 U. S.
60,
252 U. S. 79
(1920).
[
Footnote 30]
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 nonresident 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
"[t]o 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."
[
Footnote 31]
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.
[
Footnote 32]
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).
[
Footnote 33]
The most extended exposition appears in the majority opinion in
Geer v. Connecticut, 161 U. S. 519
(1896).
[
Footnote 34]
Appellees rely also upon
Patsone v. Pennsylvania,
232 U. S. 138, and
Haavik v. Alaska Packers' Ass'n, 263 U.
S. 510 (1924). The
Patsone case involved a 1909
Pennsylvania statute, P.L. 466, 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 nonresidents, 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 nonresidents.
[
Footnote 35]
Manchester v. Massachusetts, 139 U.
S. 240,
139 U. S. 265
(1891). In that case, appellant, a citizen of Rhode Island, was
convicted of violating a Massachusetts statute which regulated
fishing in Buzzard's 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.
[
Footnote 36]
332 U. S. 332 U.S.
19,
332 U. S.
31.
[
Footnote 37]
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.
[
Footnote 38]
See note 13
supra.
[
Footnote 39]
278 U. S. 278 U.S.
1,
278 U. S. 13.
[
Footnote 40]
See note 30
supra. The District Court thought that the
Foster-Fountain 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
"[i]t 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. 297 U.S.
422,
297 U. S.
425-426.
[
Footnote 41]
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.
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.I V, § 2, of the Constitution.
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,
326 U. S.
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 by the States of
powers
Page 334 U. S. 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 its
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
Page 334 U. S. 409
McCready doctrine by referring to
"the regulation or the 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,
239 U. S.
39-40.
But a State cannot project its powers 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 of 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
Page 334 U. S. 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 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.