Caldwell v. Mann
| Decision Date | 25 June 1946 |
| Citation | 157 Fla. 633,26 So.2d 788 |
| Parties | CALDWELL et al. v. MANN. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Leon County; Hugh M. Taylor judge.
J. Tom Watson, Atty. Gen., and D. Fred McMullen, Asst. Atty. Gen for appellants.
J. Irvin Walden, of Sarasota, for appellees.
Sworn amended bill of complaint was filed in the Circuit Court of Leon County Florida, 'by Harry Mann, trading and doing business as the Mann Seafood Co., St. Petersburg, Pinellas County; Herman Gerhling, trading and doing business as the Palmetto Fish Co., Palmetto, Manatee County; A. L. Mellis, trading and doing business as the Star Fish Co., Cortez, Manatee County Jim Guthrie, trading and doing business as the Bay Shore Fish Co., Cortez, Manatee County; Tink Fulford, trading and doing business as the Fulford Fish Co., Cortez, Manatee County; Ralph Chadwick, trading and doing business as Chadwick Fisheries, Sarasota, Sarasota County; Stewart Anderson, trading and doing business as Lemon Bay Fisheries, Englewood, Sarasota County; Walter Gault, trading and doing business as Gasparilla Fisheries, Gasparilla, Charlotte County; W. E. Guthrie, trading and doing business as the Punta Gorda Fish Co., Punta Gorda, Charlotte County; G. P. Santini, trading and doing business as the Kleen Fish Co., Fort Myers, Lee County; J. T. Smoot, trading and doing business as the South Fish Co., Fort Myers, Lee County; A. H. Snodgrass, trading and doing business as the Dixie Fish Co., Fort Myers, Lee County; E. L. Combs, trading and doing business as the Combs Fish Co., Naples, Collier County; Wade Rigby, trading and doing business as the Neilson Fisheries, Naples, Collier County; Kelly Ghant, trading and doing business as the Ghant Fish Co., Collin City, Collier County; A. R. Royal, trading and doing business as the Royal Fish Co., Bonita Springs, Collier County; Lloyd House, trading and doing business as the Lloyd House Fish Co., Everglades, Collier County; Wynn Tiner, trading and doing business as Rigg Fish Co., Everglades, Collier County; B. N. Stokes, trading and doing business as the Stokes Fish Co., Leesburg, Lake County; B. Bacon, trading and doing business as the Lemon Street Fish Market, Sebring, Highlands County and M. F. Bannister, trading and doing business as M. F. Bannister, Wauchulla, Hardee County' against 'Millard F. Caldwell, Governor of the State of Florida; R. A. Gray, Secretary of State, State of Florida; J. Tom Watson, Attorney General of State of Florida; J. M. Lee, Comptroller, State of Florida, J. Edwin Larson, Treasurer, State of Florida; Colin English, Supervisor Public Instruction; Nathan Mayo, Commissioner of Agriculture, State of Florida; as and constituting the State Board of Conservation, State of Florida and J. T. Hurst, Supervisor of Conservation, State of Florida'.
The bill challenged the constitutionality of Sec. 2 of Chapter 10123, Acts of the Legislature of 1925, which now appears as Section 374.23, Fla. Statutes 1941, same F.S.A., as applied to the plaintiffs and their places of business located as alleged in the bill of complaint and prayed for an injunction against the enforcement of the statute insofar as it prohibits one situated as the complainants each is to have in his possession, buy, sell or offer for sale or ship any fresh or freshly salted mullet or mullet roe in this State between the 1st day of December of any year and the 20th day of January of the next succeeding year.
After motion to dismiss was denied answer was filed and the cause being submitted on bill and answer, final decree was entered as prayed in the bill of complaint.
The Court will take judicial cognizance of the fact that mullet is a saltwater fish having its habitat in the coastal waters of Florida.
The pleadings showed that the challenged Act applied to the entire State of Florida when it was passed, but that since that time the legislature has by enactments, the constitutionality of which has not been challenged, eliminated from the operation of the Act 13 counties on the Gulf Coast of Florida and 1 conuty on the East Coast of Florida which border on the salt waters and it is also eliminated from the operation of the Act 16 counties which do not border on the salt waters of this State and has left within the purview of the Act 10 counties bordering on the Gulf and 11 counties bordering on the Atlantic Ocean and 16 counties which do not border on the salt water of the State.
So it is we find that plaintiffs in the court below, appellees here, fall in two different classifications. Those having their place of business in Pinellas, Manatee, Charlotte and Collier Counties are all in Gulf Coastal counties which remain in the purview of the Act, while those who have their places of business in Lake, Highlands and Hardee Counties are not within a county bordering on the salt waters and, therefore, are not within a county in which mullet may be taken from the natural habitat of such fish. Stated another way, the first mentioned set of plaintiffs, appellees here, are within counties where this class of fish is protected during the closed season and the second class of plaintiffs in the court below, appellees here, are in counties where there is none of the class of fish sought to be protected in their natural habitat.
On authority of our opinion and judgment in the cases of Holland et al. v Roberts, 149 Fla. 308, 5 So.2d 608, and White v. Penton, 92 Fla. 837, 110 So. 533, we hold that the enforcement of the Act in those counties which were included within the purview of the Act by Legislative Act and which border on the salt waters of the State, and therefore have within their borders fish which it is the purpose of the Act to protect, is not contrary to the constitutional rights of the party or person engaged in the business of selling fish in those counties. This is true because that portion of the Act which prohibits the buying, selling or possession of mullet within a certain period each year is incidental to the principal object of the Act which is the protection of salt water...
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...to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation.” Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788, 790 (1946). Unless a suspect class or fundamental right protected by the Florida Constitution is implicated by the challenged pro......
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