Harper v. Galloway

• Citation: 51 So. 226,58 Fla. 255
• Parties: HARPER v. GALLOWAY, Sheriff.
• Decision Date: 10 January 1910
• Court: United States State Supreme Court of Florida

51 So. 226

58 Fla. 255

HARPER v. GALLOWAY, Sheriff.

Florida Supreme Court

January 10, 1910

In Banc. Error to Circuit Court, Marion County; W. S. Bullock Judge.

Habeas corpus by Noah Harper against John P. Galloway, Sheriff. From a judgment remanding petitioner to custody, he brings error. Reversed and remanded, with directions to discharge petitioner.

Syllabus by the Court

SYLLABUS

Where a person is held in custody under a judgment of conviction, and the judgment is assailed on the ground that it is not merely erroneous, but void, because it is based on a charge made under an invalid provision of a statute, and the charge constitutes no offense under the laws of the state, the validity of the statutory provison defining the offense may be determined in habeas corpus proceedings, and if the statute is invalid, and the charge constitutes no offense under the laws of the state, the petitioner may be discharged from custody under the charge.

If a duly enacted statute contains provisions that are invalid because in conflict with organic law, and such invalid portions may be severed, and the remainder of the statute may then be made effective for the purpose designed, and will not cause results not intended by the Legislature, and it does not appear that the statute would not have been enacted without the invalid portions, the invalid portions of the act should be disregarded, and the valid portions enforced, if it can be done to effectuate the legislative intent.

Under the common law of England the title to animals ferae naturae or game is in the sovereign, for the use and benefit of the people; the killing or taking and use of the game being subject to governmental control and regulation for the general good.

The power to control and regulate the killing and use of game was vested in the colonial governments of America, and passed with the title to game in its natural condition to the several states as they became sovereigns, for the use and benefit of all the people of the states, respectively subject to any provision of the federal Constitution that may be applicable to such control and regulation.

The Constitution of the state does not forbid the passage of special or local laws upon the subject of game, and it contains no express provision relative to game. Therefore the Legislature may by a duly enacted law make any provision within its discretion for the preservation and conservation of the game in the state, for the use and benefit of the people of the state, by regulating the taking or killing and use of certain or all kinds of game in any part of the state and during any periods, where such laws do not deny to any one having rights in the premises the due process of law or the equal protection of the laws, that are guaranteed to all persons by the state and federal Constitutions.

In exercising its power and discretion to control and regulate the subject of hunting game, the Legislature may enact any law it may deem advisable; but regulations should affect alike all persons similarly situated and conditioned with reference to the subject regulated.

Classifications of persons may be made in connection with regulations for the protection of game; but such classifications should have some just relation to real differences with reference to the subject regulated, and should not be unjustly discriminatory or merely arbitrary. If this rule is not observed classifications of persons in connection with the regulation of the hunting of game may deny to some residents of the state the equal protection of the laws.

The discretion of the Legislature in classifying those who are to be affected by a regulation for the protection of game will not be disturbed by the courts, where the classification has some just, fair, and practical basis in real differences with reference to the subject regulated, and all doubts will be resolved in favor of the validity of a statute.

When a statute, designed for the protection of game, by its plain terms excludes from its benefits a portion of the residents of the state, or imposes upon some of the residents of the state burdens not put upon other residents of the state with reference to the subject regulated, and there appear to be no real differences in conditions with reference to the regulation to fairly justify the classification as made, the statute may in effect deny to residents of the state the equal protection of the laws, in violation of the fourteenth amendment of the federal Constitution.

The provisions of section 8 of chapter 6005, Acts of 1909, that require of residents of the state of Florida who are not residents of Marion county a previous notice of intention to hunt and the payment of a special license tax for the privilege of hunting game in Marion county, while no notice or license tax is required of residents of Marion county, are in effect a denial to the residents of the state who are not residents of Marion county of the equal protection of the laws of the land, in violation of the fourteenth amendment to the Constitution of the United States, and are inoperative as to residents of this state.

The Constitution contains no express limitation upon the power of the Legislature to provide for taxes on licenses; but such power should not be so exercised as to deprive any person of property without due process of law, or so as to deny to any person the equal protection of the laws.

The Legislature may enact special or local laws within its discretion for the protection of game in the state, and by valid general laws may prescribe punishments for violations of the special or local laws, so as to avoid any real or apparent conflict with the constitutional provision that all laws 'for the punishment of crime or misdemeanor' 'shall be general and of uniform operation throughout the state' (Const. art. 3, ss 20, 21).

The provisions of section 11, c. 6005, Acts 1909, relating to the disposition of fines collected, are controlled by section 9 of article 16 of the Constitution, as amended, which requires fines collected to be paid into the fine and forfeiture fund of the county.

COUNSEL William Hocker, for plaintiff in error.

Park Trammell, Atty. Gen., for the State.

OPINION

WHITFIELD C.J.

The plaintiff in error, a resident of Lake county, Fla., was convicted in the county judge's court of Marion county for a violation of section 8, and was sentenced to imprisonment under section 10 of chapter 6005, Acts of 1909, being a local game law for Marion county. On writ of habeas corpus before the judge of the Fifth judicial circuit the petitioner was remanded to the custody of the sheriff under the sentence and commitment of the county judge's court. The circuit judge allowed a writ of error, and it is contended here that the act under which the conviction was had is invalid, because (1) it denies to citizens of Florida the equal protection of the laws, contrary to the guaranty of the fourteenth amendment of the Constitution of the United States; and (2) it violates the provisions of the state Constitution that 'the Legislature shall not pass special or local laws * * * for the punishment of crime or misdemeanor,' that such 'laws shall be general and of uniform operation throughout the state,' and that 'the Legislature shall provide for a uniform and equal rate of taxation.'

Where a person is held in custody under a judgment of conviction, and the judgment is assailed on the ground that it is not merely erroneous, but void, because it is based on a charge made under an invalid provision of a statute, and the charge constitutes no offense under the laws of the state, the validity of the statutory provision defining the offense may be determined in habeas corpus proceedings; and if the statute is invalid, and the charge constitutes no offense under the laws of the state, the petitioner may be discharged from custody under the charge. Exparte parte Knight, 52 Fla. 144, 41 So. 786, 120 Am. St. Rep. 191; Hayes v. Walker, 54 Fla. 163, 44 So. 747; Ex parte Bailey, 39 Fla. 734, 23 So. 552; Hardee v. Brown, 56 Fla. 377, 47 So. 834.

It is the duty of the courts to enforce valid provisions of a statute; but a statute that is clearly in conflict with organic law should not be enforced. If a duly enacted statute contains provisions that are invalid because in conflict with organic law, and such invalid portions may be severed, and the remainder of the statute may then be made effective for the purpose designed, and will not cause results not intended by the Legislature, and it does not appear that the statute would not have been enacted without the invalid portions, the invalid portions of the act should be disregarded and the valid portions enforced, if it can be done to effectuate the legislative intent. State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. 969; State v. Tampa Waterworks Co., 56 Fla. 858, 47 So. 358, 19 L. R. A. (N. S.) 183; El Paso & N.E. Ry. Co. v. Gutierrez, 215 U.S. 87, 30 S.Ct. 21, 54 L.Ed. 106. It is presumed that the lawmaking power intended a valid, constitutional enactment. Only the valid legislative intent becomes the law to be enforced by the courts. The Legislature is presumed to act within its powers, and its lawmaking discretion within its powers is not subject to review by the courts.

Under the common law of England the title to animals ferae naturae or game is in the sovereign, for the use and benefit of the people; the killing or taking and use of the game being subject to governmental control and regulation for the general good. The power to control and regulate the killing and use of game was vested in the colonial governments of America and passed with the title to game in its natural condition to the several states...