Ex Parte Lewis
| Decision Date | 26 May 1931 |
| Citation | 101 Fla. 624,135 So. 147 |
| Parties | Ex parte LEWIS. |
| Court | Florida Supreme Court |
Original proceeding for a writ of habeas corpus by Oscar S. Lewis to secure release of petitioner from custody.
Motion to discharge the petitioner from custody granted.
Carter, Solomon & Pierce, of Marianna, and H. V McClellan, of Blountstown, for petitioner.
Cary D Landis, Atty. Gen., for respondent.
The warrant under which petitioner was arrested charges that petitioner, O. S. Lewis, then and there being, did then and there unlawfully take fish or attempt to take fish in the fresh waters of Calhoun county, Fla., to wit, in a portion of the Dead Lakes in said county; it then and there being closed season on taking or attempting to take fish in said fresh waters.
Section 71A of chapter 13644, Laws of Florida, Acts of 1929, provides as follows:
The petition alleges, and the accompanying exhibits show, that the fresh waters referred to in the warrant of arrest lie in two or more counties, namely, the adjoining counties of Gulf and Calhoun.
It was therefore necessary, in order to prescribe a closed season in these waters, that there should have been a concurrence of the boards of county commissioners of each of the above-named counties in a resolution adopted by them for that purpose. The brief for the state admits that there was no such concurrence, and for this reason the prisoner is entitled to his discharge, because the conditions necessary to give effect to the statutory provision for closing the waters is shown not to have existed at the time petitioner was arrested, and therefore the statute could not have been violated.
But the principal ground urged by the petitioner for his discharge is that the statute under which he was arrested is unconstitutional as an unauthorized delegation of legislative power to the boards of county commissioners of the several counties to enact a closed season for fishing in such counties.
We are not unmindful of the general rule that, where a case can be disposed of on objections other than constitutional grounds, the court will not pass upon or discuss the validity of a statute which is under attack. Rorick v. Stilwell (Fla.) 133 So. 609, and cases cited.
But it is also true that this court, as well as the Supreme Court of the United States, has at times given its opinion concerning matters of great importance involving important principles of constitutional law affecting the powers and duties of public officials, even though a decision on the constitutional points in the particular case was unnecessary to dispose of it.
For an example of this practice see the holding of this court in the case of State ex rel. Railroad Com'rs v. Southern Tel. & Const. Co., 65 Fla. 67, 61 So. 119, where this court emphasized the fact that the case then before it embraced grave questions affecting the authority and duties of the Railroad Commissioners, which the public had an interest in having determined on the legal points raised, and accordingly refused to dismiss the writ of error, although any decision on the constitutional points raised in that case was wholly unnecessary to the rendition of judgment by the appellate court to dispose of it.
Likewise the case of Florida v. Mellon, 273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511, is an example of a similar practice followed by the Supreme Court of the United States. There the federal Supreme Court, after holding that the state of Florida had no standing in that court to maintain a case to challenge the constitutionality of a federal inheritance tax deduction statute as applied to Florida, nevertheless proceeded to deliver a lengthy opinion on the merits and to hold the federal statute to be entirely constitutional as against the objections urged by the state which the court said had no right to make them because of a lack of interest to be affected adversely by the federal law. Such opinion has been adhered to in at least one subsequent case.
So in this case we feel warranted, though we discharge the prisoner on other grounds, in passing upon the serious constitutional question argued because of its importance to the protection of one of the great natural resources of the state, its fish, as well as to form a precedent for the future guidance of officials and citizens in their conduct with reference to the power given by the statute. The case on the constitutional point has been fully and exhaustively briefed for the petitioner, and a decision on the subject by this court under the circumstances is by no means ex parte in so far as petitioner and others similarly situated may be concerned.
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