State v. Farroba

9 So. 2d 539, 201 La. 259, 1942 La. LEXIS 1281

• Court: Supreme Court of Louisiana
• Decided: March 2, 1942
• Docket: No. 36527.
• Status: Published

Opinions

O’NIELL, Chief Justice.

The five defendants were prosecuted under separate bills of information for catching salt-water shrimp in the waters of the state without having resided in the state continuously for two years. The charge was brought under Section 4 of Act 50 of 1932, as amended by Section 3 of Act 314 of 1940. The case was triable by the judge, without a jury. Each of the defendants filed a demurrer, contending that the statute was unconstitutional in that it undertook to discriminate arbitrarily against a certain class of individuals, including the defendants, in violation of the provision in the 14th Amendment of the Constitution of the United States, forbidding any State to deny to any person within its jurisdiction the equal protection of the laws.

By agreement of the prosecuting attorney and the attorney for the defendants the five cases were consolidated and were tried and submitted together, on a stipulation of facts, reserving to ’ the defendants the right to have the judge dispose of the demurrers before deciding the question of guilt or innocence. The judge maintained the demurrers, holding that the penal clauses in the 4th section of the statute, as amended by the 3rd section of Act 314 of 1940, violated the equal protection clause in the 14th Amendment of the Constitution of the United States. The state is appealing from the decision.

. Section 4 of Act 50 of 1932, as originally enacted and as amended, makes it a penal offense for any nonresident of the state, or for any firm or association not composed of residents of the state, or for any corporation not domiciled in or incorporated under the laws of the state, to catch salt-water shrimp in the waters of the state, or to can, pack or dry in any factory or on any platform in the state any salt-water shrimp taken from the waters of the state. Section 3 of Act 314 of 1940 added to Section 4 of the act of 1932 this definition of a resident of the state: “A resident of this State, for .the purpose of this Act, is defined to be one who has had a continual [continuous] residence in the State of Louisiana for two years prior to taking, canning, packing or drying salt water shrimp and any person who was actually present and residing in tho State on June 1, 1940.” But for the words “any person”, in the last clause in this definition, it would require that a person, in order to be a resident of the state within the meaning of the act, should have both qualifications; that is, he should have had a residence in the state for two years continuously, and should have been “actually present and residing in the State on June 1, 1940”. Without these words “any person”, the definition would read thus: “A resident of the State, for the purpose of this Act, is defined to be one who has had a continual (continuous) residence in the State of Louisiana for two years prior to taking * * * salt-water shrimp and * * * who was actually present and residing in the State on June 1, 1940”. But the attorneys all concede — as we understand — that the wording of the definition exempts two classes of persons from prosecution for catching salt-water shrimp in the waters of the state, namely, first, any person who has resided in the state continuously for two years prior to catching the shrimp, — even though he may not have been actually present or residing in the state on June 1, 1940, — and, second, “any person who was actually present and residing in the State on June 1, 1940”,— even though he may not have resided in the state continuously for two years prior to catching the shrimp. Accordingly, a non-resident, in the meaning of the statute, is a person who lacks both qualifications; that is, one who did not reside in the state continuously for two years prior to catching the shrimp and who was not actually present and residing in the state on June 1, 1940. Any person having either of these qualifications is a resident of the state, in the meaning of the statute, and is therefore allowed to catch salt-water shrimp in the waters of the state. That is how the judge of the district court construed the law, in the very able opinion which he rendered; and that is obviously its true meaning; otherwise no citizen of the state would be allowed to catch salt-water shrimp in the waters of the state — no matter how long he might have resided here — unless he was “actually present and residing in the State on June 1, 1940”.

The evidence on which the case was submitted — reserving to each defendant the benefit of his demurrer — consists of admissions as to what the witnesses for the state would have sworn to if called to the witness stand. The purpose of .the evidence was to show the status of each of the five defendants, with reference to his residence in or out of the state. Each defendant was the captain of one of five trawlers, moored at Patterson, in the Parish of St. Mary, where there is an establishment in which the shrimp are prepared for shipment. It appears that the vessels some times landed in the basin on the gulf side of Franklin, the parish seat, where there is another establishment for preparing shrimp for shipment. The evidence shows that all of the defendants resided in the Parish of St. Mary, either in Franklin or in Pat.terson, continuously for a year or more previous to the date of the trawling, for which they are being prosecuted,' — August 18, 1941. The boats left Patterson for the trawling grounds about August 12 and were trawling on August, 18, 1941, — according to the bills of information. One of the defendants — Henry Farroba — rented an apartment in 'Franklin and moved into it on August 3, 1940. He moved out on February 10, 1941, but there is no evidence as to whether he remained elsewhere in Franklin, or went to Patterson, or was elsewhere in the state up to the date of the hearing of the evidence, — October 23, 1941. Ralph Johnson and his family moved into a rented apartment in Franklin on July 10, 1940, and they remained there continuously from that date to the date of the hearing of the evidence. Perry F. Smith and his wife moved into a rented apartment in Franklin on September 19, 1940. He came to Franklin some time before that date, but was not actually in the state on June 1, 1940, because he was then on his vessel, on the Gulf, en route from_ Florida to Franklin, where he arrived only a few days after the 1st day of June. He and his family resided in Franklin continuously from the date of his arrival in the early part of June, up to the date of the hearing of the evidence. Carlos Pinho rented an apartment in Franklin on June 14, 1940, and he and his wife and four children moved into the apartment on July 19, 1940. He had resided in this State, in Jefferson. Parish, where he was employed by an oil company, from the latter part of 1937 until some time in 1938. He and his family moved to Florida in 1938 and returned to Louisiana in April, 1940; that was a year and four months before he did the trawling, for which he is being prosecuted. A few days before the first day of June, 1940, he went to Florida to bring a boat to Franklin, Louisiana, and was on the boat, on the gulf, en route to Franklin, on June 1, 1940. He arrived in Franklin a few days after the 1st of June. From that time up to the date of the hearing of the evidence he and his family resided continuously in Franklin, where his children attended school.

Section 4 of Act 50 of 1932, before it was amended by the Act of 1940, merely made it unlawful for any person not a resident of the state, or for any firm or association not composed of residents of the state, or for any corporation not domiciled in or incorporated under the laws of this state, to catch salt-water shrimp in the waters of the state, or to can, pack or dry in any factory or on any platform in the state, any 'salt-water shrimp taken from the waters of the state. All residents of the state were treated alike, regardless of their time or term of residence in the state. It was permissible, of course, for the Legislature to discriminate — as it did discriminate in the act of 1932 — between residents and nonresidents of the state, by permitting the residents and forbidding the nonresidents to catch salt-water shrimp in the waters of the state. A state has the right to enact laws making the fish and game, called wild life, the property of the state, and to conserve such natural resources for the exclusive benefit of the residents of the state. A state statute that permits the residents and forbids all nonresidents of the state to fish in the waters of the state does not thereby deny to any person the equal protection of the laws, in the meaning of the equal protection clause in the Federal Constitution; nor does such a statute conflict with the provision in the Federal Constitution that the citizens of each state shall be entitled to all the privileges and immunities of the citizens in the several states. Haavik v. Alaska Packers’ Association, 263 U.S. 510, 44 S.Ct. 177, 68 L.Ed. 414. See, also, McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248, and Patsone v. Com. of Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539. But any classification of persons, made in a statute, for the purpose of distinguishing between or among the classes so created, must be a reasonable classification, founded upon a real distinction, which must have a fair and substantial relation to the object sought to be accomplished by the statute. Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666; Cotting v. Godard, 183 U.S. 79, 22 S.Ct. 30, 46 L.Ed. 92; Southern Railway Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247; Atchison, Topeka & Santa Fe Railway Co. v. Vosburg, 238 U.S. 56, 35 S.Ct. 675, 676, 59 L.Ed. 1119, L.R.A.1915E, 953. In the latter case the court said, of the equal-protection clause:

. “It does not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the dbject so.ught to be accomplished by the legislation.”

The object sought to be accomplished by 'Act 50 of 1932 is declared in its title to be to encourage, protect, conserve, regulate and develop the shrimp industry of the state.’ We cannot imagine how the distinction which is made in the act of -1940, — by allowing all persons who were actually present and residing in the state on June 1, 1940, to catch salt-water shrimp in the waters of the state, and by making it a crime for any other resident of the state, who has not resided here continuously for two years, to catch salt-water shrimp in the waters of the state, — can have a fair and substantial relation to the object sought to be accomplished by this legislation. There was no suggestion in the argument and there is none in the brief for the state as to the purpose of this discrimination in the statute; and the judge of the district court in his written opinion informs us that he was not given any information on the subject. The residents of the state who were engaged in the shrimp industry but who had not resided in the state continuously for two years were not given any warning that they should be actually present and residing in the state on June 1, 1940, in order to protect themselves against prosecution for continuing in their occupation. That date had passed, not only when the law went into effect,, but even when the bill was introduced in the Legislature. The bill was read by title on June 23 and was finally passed and sent to the Governor for executive approval on July 10, 1940, according to the House Calendar, p. 420. The act was approved by the Governor on July 19, and, according to Section 27 of Article III of the Constitution, See Act No. 384 of 1940, it went into effect on July 31, 1940,— that day being the twentieth day after the Legislature adjourned.

It is argued in the brief for the state that it may be assumed, for the sake of argument, that the provision in the statute which exempts from prosecution “any person who was actually present and residing in the State on June 1, 1940,” is unconstitutional, without denying to the state her right to prosecute a person for catching salt-water shrimp in the waters of the state without having resided in the state continuously for two years before catching the shrimp. ' It is argued also in the state’s brief that there are two ways in which to violate the statute, — namely, first, by catching .salt-water shrimp in the waters of the state without having been actually present and residing in the state on June 1, 1940, and, second, by catching salt-water shrimp in the waters of the state without having resided in the state continuously for two years before catching the shrimp. But it is obvious that an indictment charging that a person caught salt-water shrimp in the waters of the state without having been actually present and residing in the state on June 1, 1940, would not accuse him of violating the statute, unless it is alleged al so in the indictment that the person accused did not reside in the state continuously for two years before catching the shrimp. In the same way, an indictment charging that a person caught salt-water shrimp in the waters of the state without having resided in the state continuously for two years before catching the shrimp would not accuse him of violating the statute, unless it is alleged also in the indictment that the person accused was not actually present and residing in the state on June 1, 1940. The bills of information in this instance were defective in that they charged merely that the parties accused caught the salt-water shrimp in the waters of the state without having resided in the state continuously for two years before catching the shrimp, but did not charge that the parties accused were not actually present and residing in the state on June 1, 1940. The defendants might have demurred on that ground if they had not preferred to -have a stipulation of facts on the subject, and to plead that the penal clauses in the statute were unconstitutional. Our conclusion is that the judge of the district court was right in adjudging the penal clauses in the statute unconstitutional.

The judgment is affirmed.

ODOM, J., takes no part. HIGGINS, J., concurs in the decree. FOURNET, J., dissents. McCALEB, J., dissents with reasons.