Untitled Texas Attorney General Opinion ( 1945 )

545
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
RonorableA. C. %nborn
crL%InalDistrict Attorney
Rarris County
Eouston2, Texas
Gear Sir: Opinion No. O-6525
Re:
' Tour request for 'en=;+)
reads in part, 3s follows:
y thi G~overl
nor anenaing Ii0 er 11, Acts
of the 46th La nonresident
nt cozkieroi31
ses for 3ame.
licenses to
to nonresident
st 31st of
your opinion 3s
ct cencels 311 licenses
ued to nonresident
ng the above inquiry as it pertains to
cm131 fisherman*3 license, ?Veinvite
ction 1 of House Dill 683, Chapter 11,
xth LeGisletuce,appenring 3s Article
nnoteted Pen31 Code. said section read-
.%ec. 1. A *nonresidentcomercial fisher-
man* for the purpose of this Act is hereby Gefined
3s folloV~s:
"'Any person v&o is a citizen of any other
stete, or any person who has not contlnusllybeen
flonorable
A. C, Nlnborn, Pag3 2
a bone fide resident of thia state for a period
of tdme more than twelve (12) months, end who
takes, catches, or assists in taking or cotching,
fish or shrimp or oysters or any other edible
aquatic life from the tidal sslt waters of this
State for pay or for the purpose ofsale, b3rter,
or excb3.npe,'n
Section 1 of House Bill No. 211,'Aots of the Forty-
3bt.hLegislature, in emending the above quoted Artiole reads
88 follows:
Wection 1. A 'Non resident ComnercielFisher-
menf,for the purpose or this Act is hereby defined
as follorvs:
*'Any person who is 3 citizen -ofeny State,
or ans DCrUOnvihoh3s not continuallybeen 3 bona
fide "tihabitantof this state for 3 bsriod of t&e
more than Welvs (12) :nonths,the word person shsll
Include partnerships,associatiions 3ncicorpor3tions
U&o have not continuallyhad 3 bona fide place of-
business in this state for a period of ti1
116more
than twelve (12) months, and who tekes, assists iu
taking or catching,fish or shrimp or oysters, or
eny other edible aquatic life from the tidsl salt
waters of this state for pay or forthe purpose of
sale, bertor or exchanee+(" (Emphasisadded)
A comparisonof the above sections discloses that
the amending legislationfunctions only to broaden the scope
of those persons required to hold 3 nonresidentco~mmeroiel~
‘-.
”
fisherman'slicense. This view is supported in that the Two
hundredDollar (+200.00)iee for such licenses remains nn-
: i
ch3ng3a.
Therefore, it is our opinion that House Bill No.
211,Aots of the Fortg-ninthLegislaturedoea not canoe1 said
licensesand those fishermen operstinp,thereundermay continue
untilAuGust 91, 1945, the normal date of expiration.
)n determiningyour inquiry 3s to whether Seotion
4 of House Dill Xo, 211, Aots of the Forty-ninthLegislature,
canoelsall prior licenses issued on nonresidentcdnucercial
fishermen'sboata, we call to your ettention that prior to
,i<
_,_ c _.__.. -... .)
A. C, Winborn, Pege 3
JJJnorable
passage of the above Act, the law contained no speoific pro-
visionpertaining to the licensingof nonresident commercial
fishing boots. Resident and nonresident oo,amercial fisher-
can both receiving tholr boat llcenoea by virtue of Article
9943, Section 3, Subsection 7, V.A.P.C., sa%a subsection
readingas follows:
"Fish Boat License; for boats equipped with
e motor of any kind or with sells, fee Three Dol-
lers‘($3).n
Seotions 2 and 4 of Eouse Bill no. 211, Acts of
the Forty-ninthLegislnture,have made specific provisions
for thenlicensing of nonresident commercial fishing boats;
said sections reodlng es follov~s:
Sea. 2. A *IJonresid&tCommercialFishing
Boat' for the purposea of this Act is Imreby de-
fined as follows:
"'Any boat or vessel, which Is reglstered~in
any other State, or which hasnot continually been
registered in this State f6r a period of time more
than twelve (12) months, or which is not owned by
any person,.partnership,association of persons
or corporationwhich has h8d e bona fide place of
business in this State for 3 period of time more
than twelve (12) months, end which is used for,the'
purpose of tekingj or assisting in taking or catch-
ing, fish, shrimp, oysters or any other edible
aquatic life from the tidal salt waters of this
Steto for pay or for the purpose of sale, barter
or exchange."
"Sec. 4. License for Nonrealdent Commercial
Fishing Peak required;-amount of fee. Before any
*NonresidentCommercial Fishing Boat' shall be
used for the purpose of taking or assisting in
taking or catching, fish, shrimp, oysters or any
other edible aquatic life from the tidal salt
waters of this State for pay or for the purpose
3 license to be knovm
of sale, barter or 'exchan.Se,
es 'lionresidentCo-mmeroielFishing Poet License',
shall first be procured from the Came, Fish 3nd
Oyster Coa31aslon of Texas, or one of its author-
ized agents, privilegingthem.90 to do.
HonorableA. C. Sinborn, Page 4
.,. ‘.
.I._. :
“The fee ‘fora Nonresident CoznmercialFishing
Boa’tLicense shall be Two Thousand Five Bundred
($2500.00)Dollars.”
For a oonslderationof the constitutionalityof
: ., the above sections of House Bill No. 211, Aots of the Porty-
..*. ninth Le&slature, rvequote from the following authorities:
Voluma 11, Seotion 34, Ruling Case Law, page 1046,
reading, in part, as follows:
“By reason of,the fact that title to fish
and Earnowithin the boundaries of a state is vest-
ed in the ~onle of the state in their sovoreion
capacity, ihe-Legislaturebas greater pov:erov&
such property than it has over almost any other
conznodity,and in order to preserve such property
to the people of the state, the &~vnakin& asselrl-
bly may cneot that only citizens of the state shall
take fish from the weters v:lthinits jurisdiotion
. . .
“. . . Likewise, the state( having pov;erto
exclude nonresidents from fishing In the state,
may grant them the privilec,eupon conditions&if-
ferent from those it imposes on its residentsas,
for example requiri~nga larger boat license fee.”
(Emphasisadded)
On this point see McCready v. Va., 94 U. S. Tieports
395;Qroer v. Bonn., 161 I?.3. Reports 519; People v. Setun-
“ky,126 N. Vi, 844, 161 &?itih.
624.
Bearing in mind that the state through its sovereign
Foviersmay oonstitutional.lyexclude nonresidentsaltagether
fromits territorialwaters,.,weinvite your attention to Vol- .
Rae 33, Section 21 of American Jurisprudence,pas!o342, read--
in&,In pert, es,follows:
“Sec. 21. The oonstitutionalinhibitionas
to impairment of .the obligationof’aontractsdoes
not extend to licenses. A license itself is not
a oontract between ,thesovereigntyand the licensee,
and is not property in ‘any constitutionalsense.
It does not oonfer a vested, permanent or absolute
right, but only a personal privilege to be exar-
cised under existing restrictionsand such as may
.
. I
. .
.
,::
Honorable A. C. Wnborn, Pace 5
thereafterbe reasonably imposed. Free latitude
is reserved by the povernmentolauthority to im-
pose new or additional burdens on the licensee or
to revoke the license. Moreover, this is I& pen-
era1 rule notwithstanding,the expondituroof money
: . _. by a licensee in relianoo upon the license. .,. a"
IDnphasis added) .
.On this point see State ex rel Ohsnan EzSons Co.,
:‘; Ino,, V, Starkweather, 7 N. X. 26 747; Olson et al. v. State
ConservationCommission, 293 N. %. 262, 255 ':!is;473.
Thus it is seen that the state, after choosing to
crant liccnsas to nonresidents,mey impose nevior additional
burdens upon these liaensoas, or may revo!cessid licenses
altogether,without abridging the obligationsof a contraat,
This being true, Article 4, Seotion 2, of the Fed-
eral Constitution,entitled the nDrivilegesand &munitios*~
clause, is the remaining fsctor to be met in our determina-
tion of the effect of House l3111No. 211, Acts of tho Forty-
ninth Legislature,as pertains to nonresidentco.mneroi3l
fishermen'sboat lioonsos. In this oonnection,we direct
your attention to State v. Ashman, 135 S. Y. 325; 123 Term.
654, a case which contains a good statement of tha .majority
rule in the United States. Said statement reads as follows:
"The rights, privileges, and inmunitieswhich
are secured by this clause to the ~inhabltantsof
the several states do not include 8ny riflhtsin
the,property of the several statesheld in trust
for their own inhabitants, and laws which prohibit
them in whole or in part from participatingin the
benefits.of that property do not deprive-themof
any constitutionalrights. The majority of the
states have enaoted laws prohibiting or limiting
the rights of nonresidents to take game or fish
within.their respective .boundaries,and, upon the
prinqiples above stated, thia legislationhas been
Invariablyupheld by all the oourts."
In the light of the above oited suthorities, it is
the opinion of this department that Section 4 of House Bill
no. 211, Acts of tho Forty-ninth ~JeGiSIStUro, cancels all
_ . 1 : 550
i
.
i
.“::‘,::“ ~onoradleA. C. i&born,‘Page 6
’ exfstinglicenses issued on nonresfdentcomerolal rishing
.-
boats;the bill having become effeotive as of April 2, 1945,
by passing v;iththe required number of votes In eaoh house
. .
of th.eLegislature and sipned by the Governor.
..
..I Yours vory truly
.
:
ATTORQq GENmL OF TEXLS
, .: .,
.~,._
Benjamin xoodall
Assistant
:~.
. BW:mp
:
.
. 3
-
:
%. .~.
:,
..
.
..
.I ..
*, ;
’