Ex Parte Powell

• Decision Date: 18 November 1915
• Citation: 70 Fla. 363,70 So. 392
• Parties: Ex parte POWELL.
• Court: Florida Supreme Court

70 So. 392

70 Fla. 363

Ex parte POWELL.

Florida Supreme Court

November 18, 1915

Rehearing Denied Dec. 21, 1915.

Original habeas corpus by Thomas Powell. Petitioner remanded.

Syllabus by the Court

SYLLABUS

Where general public interests are directly involved in an application for a writ of habeas corpus, the Supreme Court will, within its discretion, issue the writ that the state's interests may be conserved.

The provisions of chapter 6877, Acts of 1915, requiring dealers in fish, and owners, etc., of boats used in fishing, to procure a license and to pay a tax therefor, are germane to and properly connected with the subject of protecting and regulating the salt water fishing industry as expressed in the title of the act. Considered with reference to the body of the act, the title is not misleading.

After the United States acquired by treaty of cession from Spain the territory known as East and West Florida, such territory was held subject to the Constitution and laws of the United States. The lands under navigable waters, including the shores, were held by the United States for the benefit of the whole people, to go to the future state for the use of the whole people of the state.

The admission of the state of Florida 'Into the Union on equal footing with the original states, in all respects whatsoever,' gave to the state of Florida all rights and powers as to property and sovereignty possessed by the original states of the Union, except such as were withheld by the act admitting the state.

The rights of the people of the states in the navigable waters and the lands thereunder, including the shore or space between ordinary high and low water marks, relate to navigation, commerce, fishing, bathing, and other easements allowed by law. These rights are designed to promote the general welfare, and are subject to lawful regulation by the states, and such regulation is subordinate to the powers of Congress as to interstate commerce, navigation, post roads etc., and to the constitutional guaranties of private property rights.

Under the laws of this state, the public waters and the fish therein are held by the state for the benefit of the people of the state, subject to such regulations of the use thereof as the lawmaking power may provide.

The right of individuals to fish in the public waters of the state is subject to state regulation for the general welfare. This regulation may be of any character and to any extent that does not, in effect, destroy the right.

A legislative imposition of a license tax and other incidental regulations upon the persons who deal in fish and those who desire to fish, and upon boats used in fishing, is a proper exercise of the regulating sovereign police power of the state, and such power is limited only by the provisions of the state and federal Constitutions.

Such of the provisions of section 14, c. 6877, Acts 1915, as require licenses to be taker out for the use of boats in fishing in the said waters of the state, and making the license tax to depend upon the size of the boat, do not, in effect constitute a 'duty of tonnage' in violation of the federal Constitution. The tax is not upon vessels or boats engaged in commerce to or from a port, but upon boats used in fishing in the waters of the state.

As the right of the people of the state to fish in the public waters of the state is subject to legislative regulation for the public welfare, lawful regulations do not deny 'rights retained by the people' within the meaning of section 24 of the Declaration of Rights of the state Constitution.

The provisions of section 14, c. 6877, Acts 1915, requiring the shellfish commissioner to collect all license taxes under the act, does not violate the Constitution.

The provision of section 22, c. 6877, Acts of 1915, that the state comptroller shall issue a warrant drawn on the state treasury to pay accounts, claims, or bills approved by the shellfish commissioner does not deprive the comptroller of his constitutional right and duty to 'examine, audit adjust and settle the accounts of all officers of the state.'

The policy, the wisdom, and the economy of a statute are not judicial questions when the act does not violate organic law.

Where a petitioner claims a release on the ground that the statute under which he is held is unconstitutional, he will be remanded if the act is not invalid.

COUNSEL W. J. Oven, of Tallahassee, and T. B. Ellis, Jr., of Gainesville, for petitioner.

T. F. West, Atty. Gen., for the State.

OPINION

WHITFIELD, J.

Thomas Powell presented to this court a petition for a writ of habeas corpus, in which petition it is alleged that Powell is detained in the custody of the sheriff of Levy county under a commitment which charges that Powell did, on October 1, 1915, unlawfully engage in the business of a retail dealer in salt water fish, without having first paid the license tax required by chapter 6877 of the Laws of Florida, approved May 25, 1915, and also that Powell on said date did unlawfully engage in the fishing industry in the salt waters of Florida, within a stated district, by taking and catching fish from said waters from a certain boat more than 16 feet long, without first procuring a police license from the commissioner of agriculture of Florida, as required by section 14 of chapter 6877 of the Acts of 1915, approved May 25, 1915, and without displaying the boat license number or license year tag, as required thereby; that his detention is unlawful, in that the statute (chapter 6877) is contrary and repugnant to the Constitution of the state of Florida, in that the title is misleading and insufficient; that the act embraces more than one subject and matter properly connected therewith; that the Legislature is without authority to tax the people of the state for taking fish from the waters of the state; that it deprives persons of property and liberty without due process of law and lays a tonnage tax in violation of the Constitution of the United States, and in other particulars violates organic law.

In view of the general public interests involved, a writ of habeas corpus was issued by this court. The Attorney General contends that the petitioner should be remanded because, as he argues, the return, stating that the petitioner is held as alleged, is sufficient, in that section 14 of chapter 6877, under which the petitioner is held, in so far as it affects the petitioner in this proceeding, does not offend organic law as alleged, and that if some other portions of the statute be unconstitutional, section 14 is not thereby rendered invalid. See State ex rel. Clarkson v. Philips, Judge, 70 So. 367, this day decided.

The title and sections 1 and 14 of chapter 6877, Acts of 1915, are as follows:

'An act to protect and regulate the salt water fishing industry of the state of Florida, and to provide penalties for the violation of this act.'

'Section 1. That all fish in the rivers, bayous, lagoons, lakes, bays, sounds and inlets bordering on or connected with the Gulf of Mexico and the Atlantic Ocean, or in the Gulf of Mexico or Atlantic Ocean, within the jurisdiction of the state of Florida, are hereby declared and shall continue and remain the property of the state of Florida, and may be taken and used by citizens of this state and persons not citizens of this state, subject to the restrictions and reservations hereinafter imposed by this act.'

'Sec. 14. No person, persons, firm or corporation, shall engage in the business of wholesale fish dealer until such person, persons, firm or corporation shall have first procured from the commissioner of agriculture of the state of Florida, an annual fish dealer's license for which a charge of ten dollars shall be made. All retail fish dealers shall pay a license tax of five dollars per annum. A wholesale fish dealer shall be considered any one who sells fish to a retail dealer other than the person who catches the fish, and a retail dealer shall be considered any one who sells fish directly to the consumer; provided, however, that any one holding a merchandise license may sell salt cured fish without payment of such retail dealer's license.

'Any and all boats or vessels engaged in the fishing industry in the salt waters of the state, before beginning operations, must first procure a police license from the commissioner of agriculture, and for this purpose the owner, captain or agent of such vessel must present in writing to the said commissioner of agriculture an application setting forth the name and description of such vessel, name and post office of the owner, the number of nets carried by such boat, and any such further data as said commissioner of agriculture shall deem necessary, on blanks to be furnished by the commissioner of agriculture, and thereupon the commissioner of agriculture shall register such boat or vessel and shall issue necessary license on payment of cost thereof. All licenses shall be granted to the boat or vessel according to the following schedule:

'Boats under 16 feet long and under 4 feet beam, $1.00; Boats over 16 feet long and over 4 feet beam, 20 cents for each additional foot or fraction thereof of length or beam.

'Provided, that any person paying the above license shall not be required to pay an additional license for fishing in any fresh water.

'An additional license tax of ten dollars shall be required of all aliens or nonresidents of the state of Florida on each boat or vessel engaged in the fishing industry in this state, operated in whole or in part by such alien or nonresident, in addition to the boat license tax required in this section. The failure of any alien or nonresident to secure such additional license, for such boats, before engaging

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