Brooks v. Tripp.

DOUGLAS, J., dissenting. *Page 113 This is an action to restrain the execution of chapter 414, Laws 1903, its unconstitutionality being averred on the ground that it lays a tax of three cents per bushel on clams, two cents per bushel on oysters in the shell and two cents per gallon on shucked oysters "shipped out of said county," and not also upon the shellfish situate, dug or consumed within said county, and that the said tax amounts to an impost or export tax and is not levied for the purpose of inspection. The act in question is entitled "An act to protect and promote the shellfish industry of Brunswick." If such is its true purport and object, it is within the police power of the State, and a tax levied for such object would be legal although laid only upon shellfish in that county. If levied upon shellfish in that county only for the purpose of raising revenue for the State treasury, it would be forbidden by the Constitution because not laid by "uniform rule." State v. (160)Moore, 113 N.C. 697, 22 L.R.A., 472. But the presumption is that a statute is constitutional unless the contrary clearly appears.Sutton v. Phillips, 116 N.C. 502. An examination of the statute shows that for the purpose of enforcing the laws and regulations to protect shellfish, and especially the prohibition of disturbing their beds during the prescribed "close season," the Governor is authorized to appoint a shellfish commissioner at a salary of $400 per annum, and such commissioner is empowered to appoint "two or more subshellfish commissioners to aid him in his work, who shall receive $25 each per month while so employed, and that the fund raised by the above tax is to be paid to the county treasurer, and the surplus (if any) shall be paid by him into the State treasury after "first deducting" the salaries of the aforesaid officers. It is further provided that such officers shall receive no compensation whatever except out of said funds. From the title and general purport of the act, and especially the provision for the appointment of an unlimited number of deputies, it is clear that there was no expectation or intention to raise any money for the State treasury (and none has been paid into the State treasury from this source), but that the object was solely to provide salaries for those engaged in enforcing the regulations for the protection of shellfish in Brunswick *Page 114 County. It must clearly appear that the object was not that recited, but was in fact to raise revenue for the State before the act can be declared unconstitutional. The statute may be unguarded in not restricting the number of subshellfish commissioners, but the Legislature may have thought this was sufficiently done by providing that the officer should receive no compensation except from this fund. If there is a defect in this regard, making the act liable to abuse, this is (161) a matter for legislative correction, but it does not render the statute unconstitutional. The tax required for the enforcement of a police regulation is not a tax within the meaning of our Constitution requiring uniformity and equality in taxation, but "is a proper mode of providing for the compensation" of an officer designated to enforce such regulation in the prescribed territory "and the payment of any expenses incidental to this" duty. State v. Tyson,111 N.C. 687. Local legislation in the nature of police regulation has always been sustained — see as to the sale of liquor, sale of seed cotton, fence laws, cattle running at large, working public roads and such legislation for many other purposes, the authorities collected in State v.Sharp, 125 N.C. 632, 74 Am. St. Rep., 663. In fact, this statute applies uniformly to all citizens of Brunswick and all others, whether residents or nonresidents of this State, who go to that county to take shellfish for shipment. But even if the act had forbidden nonresidents of this State to take shellfish in that county, it would have been competent for the Legislature to so enact, for the ownership of game and fish is in the State, and license to hunt or fish is not an immunity or privilege of the citizens of this State. State v.Gallop, 126 N.C. 983, and cases cited; McCready v. Virginia,94 U.S. 391. In Chambers v. Church, 14 R. I., 398, 51 Am. Rep., 410, it is held that a State "may forbid nonresidents from catching fish in its waters for manure and oil, and manufacturing manure and oil from fish caught in its waters." In Harvey v. Compton, 36 N.J. Law, 507, in the matter of prohibiting nonresidents from gathering oysters within the waters of New Jersey, the Court says: "Such enactment for the protection of property must be considered as a matter of internal police, and not a regulation of commerce with foreign nations or among the States. Neither does it controvert the provisions of the United (162) States Constitution that the citizens of each state shall be entitled to all the privileges of citizens of the several states. But this statute, in fact, makes no discrimination in favor of the citizens of North Carolina. *Page 115 It is further and chiefly contended that the act is unconstitutional in that it levies the tax solely upon shellfish shipped out of the county and not also upon the other shellfish situate, dug or consumed in said county. The tax could not be levied upon all the shellfish "situate" in Brunswick County, because there is no possible means to ascertain this. It would also be difficult to ascertain the number dug and consumed. The ascertainment of the number shipped out of the county is more practical, and the levy of a tax thereon is a reasonable method of deriving funds for the enforcement of the regulations for the protection of shellfish, and is not for revenue. It is not unreasonable that no tax is laid upon shellfish consumed for the sustenance and support of the people residing in the county. The tax laid is not an export tax, but is simply the method chosen by the Legislature as the least onerous and most practical system of raising the necessary funds to defray the expenses of protecting the shellfish industry in the county of Brunswick. The regulation of fishing and hunting is, as above said, a matter entirely within the discretion of the State. Lawton v. Steele,151 U.S. 133; State v. Gallop, 126 N.C. 984. In refusing to hold the statute unconstitutional there was No error.