Game and Fresh Water Fish Com'n v. Williams

• Decision Date: 20 December 1946
• Citation: 28 So.2d 431,158 Fla. 369
• Court: Florida Supreme Court
• Parties: GAME AND FRESH WATER FISH COMMISSION v. WILLIAMS et al.

28 So.2d 431

158 Fla. 369

GAME AND FRESH WATER FISH COMMISSION v. WILLIAMS et al.

Florida Supreme Court

December 20, 1946

Rehearing Denied Jan. 13, 1947.

Earl D Farr, of Punta Gorda, and Mabry, Reaves, Carlton, Anderson Fields & Ward, of Tampa, for petitioner.

Bell &amp Bell, of Miami, for respondents.

BUFORD, Justice.

On October 18, 1946 the Game and Fresh Water Fish Commission of the State of Florida filed its petition for prohibition in this Court wherein it was prayed that the Honorable Ross Williams as Judge of the Circuit Court of Dade County, Florida, and H. G Stewart be prohibited from proceeding further with the disposition of a certain cause then pending before the said Judge Ross Williams as Judge of the Circuit Court in and for Dade County, wherein the said H. G. Stewart sought an injunction against the Game and Fresh Water Fish Commission of the State of Florida, its agents, employees and enforcement officers enforcing within Dade County, Florida its Rule 14.01 and Rule 9, including the Resolutions adopted as a part thereof; and that the defendant be required to make answer to the amended bill of complaint, but not under oath, answer under oath being hereby specifically waived; and that upon final hearing the said defendant be permanently enjoined from exercising jurisdiction or control over Lake Okeechobee, and be permanently enjoined from enforcing Rule 14.01, and Rule 9 and the Resolutions adopted as a part thereof.

The bill of complaint attacks the validity of Rule of the Commission numbered 14.10 and what appears to be two Rules 9, Resolutions. These rules are as follows:

'Rule 14.01 Sale of Fresh Water Fish Prohibited.

'No person or persons shall sell, offer for sale, barter, purchase, offer to purchase, or exchange for merchandise or transport, transport for sale, or transport out of the State of Florida any large of small mouth black bass, speckled perch, jack, bream, shell cracker, warmouth perch, red breast, pike, stump knocker, or any other species of bream; provided that holders of valid fishing licenses may carry out of the State or transport as personal baggage one day's bag limit thereof; and provided further that the Director may issue permits for transportation of black bass, speckled perch, jack, bream, shell cracker, warmouth perch, red breast, pike, stump knocker, or any other species of bream within or out of the State of Florida for propagation or scientific purposes only, No common carrier shall knowingly transport or receive for transportation within the State of Florida, any black bass, speckled perch, jack, bream, shell cracker, warmouth perch, red breast, pike, stump knocker, or any other species of bream. It is the intention of this Rule to prohibit within the limits of the State of Florida, the sale and shipment of any species of fresh water fish except garfish, catfish, mudfish or blackfish, whether such fresh water fish were caught from the waters within the State of Florida or elsewhere.

'Rule 14.01 Sale of Black Bass Prohibited (Page 50 of the Printed Code)

'This Rule is amended effective October 1, 1946.

'Rule 9 Resolution:

'Whereas, The Legislature of the State of Florida from time to time, by statutory decree has determined that the fresh water of Lake Okeechobee is salt notwithstanding the known fact that the water of the said Lake Okeechobee is known to be fresh, and is used for drinking purposes by both humans and animals, and is also extensively used for the irrigation of tender vegetable crops and

'Whereas Lake Okeechobee is historically known as one of the largest fresh water Lakes lying wholly within the United States, and is nationally regarded as a sportsman's paradise for fresh water fish, and

'Whereas, the fish heretofore commercially taken from Lake Okeechobee are predominantly fresh water fish, and

'Whereas, the waters of Lake Okeechobee constitute a breeding ground for fresh water fish, for the waters of Caloosahatchee River, Fish Eating Creek, Kissimmee River, St. Lucie Canal and many other bodies of fresh water where commercial fishing with seines, nets and traps is not permitted, and

'Whereas, the netting of said Okeechobee Lake Waters disturbs, injures and destroys the breeding grounds of black bass and other fresh water fish species,

'Now, Therefore, The Game and Fresh Water Fish Commission of the State of Florida, finds and declares the following rule to be reasonable and necessary for the purpose of the proper management, restoration, conservation and regulation of fresh water fish in the waters of the said Lake Okeechobee, State of Florida, to-wit:

'1. That the Rule and Regulation shall be enforced on and after October 1, 1946, in order that all commercial interests may be duly advised and may arrange their future commercial operations accordingly.

'2. That on and after the effective date of this Regulation, no person may take or attempt to take any fresh water fish from the waters of Lake Okeechobee, State of Florida, by means of any device excepting hook and line, rod and reel, bob, spinner, troll or trotline. The taking of fresh water fish from the waters of Lake Okeechobee by any other means of any other device excepting the foregoing is hereby expressly forbidden.

'Rule 9 Resolution:

'Whereas, the waters of the State of Florida are known as a Sportman's Paradise for fresh water fish, and

'Whereas, the responsibility for the management, restoration, conservation and regulation of fresh water fish in the waters of the State of Florida is vested in the Game and Fresh Water Fish Commission of the State of Florida,

'Now, Therefore, the Game and Fresh Water Fish Commission of the State of Florida finds and declares the following Rule to be reasonable and necessary for the purpose of the proper management, restoration, conservation and regulation of fresh water fish in the waters of the State of Florida, to-wit:

'1. That this Rule shall not be enforced until on and after October 1, 1946, in order that all commercial interests may be duly advised and that they may arrange their future commercial operations accordingly.

'2. That on and after the effective date for the enforcement of this Rule, no person may lawfully take or attempt to take any fresh water fish from the waters of the State of Florida by means of any device excepting hook and line, rod and reel, bob, spinner, troll or trotline. The taking of fresh water fish from the waters of the State of Florida by any other means or any other device excepting the foregoing is hereby expressly forbidden.

'3. That this Rule shall not be construed to permit the taking of fresh water fish commercially for the period expiring October 1, 1946, in any of the waters of the State of Florida where said fresh water fish are not at this time permitted to be taken commercially.'

As to Lake Okeechobee the contention is that fresh water fish in Lake Okeechobee come within the purview of Sec. 32(33) of Article XVI of the State Constitution because of Sections 374.15 and 374.20, Fla. Statutes 1941, same F.S.A. Subsections 1, 4 and 7 of Sec. 30 of Article IV of the Constitution provide as follows:

'1. From and after January 1, 1943, the management, restoration conservation and...