114 SALMON GEAR LIMITATION 



not survive. The Texas court did not, however, invaUdate the scheme 

 on the basis of Article IV of the federal constitution, as the result 

 in Toomer v. Witsell might have indicated or been sufficient to do; 

 rather, the Texas court put its decision on the due process clause of 

 the state constitution. ^^^ 



The Texas court traced the history of Texas legislation as to 

 nonresidents, pointing out that just prior to the enactment of the 

 quota system under attack, the Texas laws had provided substan- 

 tially the same type of highly discriminatory taxation against non- 

 resident fishermen which had been invalidated in Toomer v. Witsell 

 and that on the basis of the Toomer decision a federal court had 

 invalidated the Texas system. Faced with this result, Texas enacted 

 a scheme for limiting the number of licenses to be available to those 

 persons who wished to take "edible aquatic life" in the offshore 

 waters of the state. 



The new statute was challenged by a group of nonresident shrimp 

 fishermen. As previously indicated, the court struck down the statute 

 on the ground that it did not meet the requirements of the state 

 constitution's due process clause. The state had argued that the 

 measure was enacted in order to further the conservation of the 

 fisheries resources, on the simple theory that if there were fewer 

 boats there would be more fish. The court simply was not convinced 

 that the scheme provided any really rational means to accomplish 

 that end. To say the least, the statutory scheme was most approxi- 

 mate. For one thing, the licensing scheme made no attempt to deal 

 separately with the separate fisheries which the Texas waters sup- 

 ported. The court was at pains to point out that what might be wise 

 in the way of increase in the number of licenses for one fishery might 

 be disastrous for another fishery which captured some other form 

 of "edible aquatic life." Yet the administrator had no way under 

 the statute in which to make the limitations upon number of par- 

 ticipants separately applicable to the various fisheries. Also, the statute 

 apparently provided only for increasing the number of licensees 

 beyond a certain number, should the administrator find it appropriate 

 to do so; there was no ability to reduce the fishing should the need 

 arise. Furthermore, there was no relationship established between 

 the kinds of gear to be used in the catching of the products, even 

 within the same kind of product. Putting all these gross ambiguities 

 together with their highly speculative effect upon the promotion of 



171. Dobard v. State, 149 Tex. 332 233 S.W. 2d435 (1950), 



