Hodges v. Filstrup

• Decision Date: 21 November 1927
• Citation: 114 So. 521,94 Fla. 943
• Parties: HODGES, State Shell Fish Commissioner v. FILSTRUP.
• Court: Florida Supreme Court

114 So. 521

94 Fla. 943

HODGES, State Shell Fish Commissioner v. FILSTRUP.

Florida Supreme Court, Division A.

November 21, 1927

Suit by H. L. Filstrup against T. R. Hodges, individually and as State Shell Fish Commissioner, for an injunction.

A motion to dissolve a temporary restraining order was denied a final decree was entered for the complainant, and defendant appeals.

Order denying the motion to dissolve the injunction and final decree reversed, with directions.

Syllabus by the Court

SYLLABUS

'Between,' in speaking of period between certain days, generally excludes days designated as commencement and termination of such period. The word 'between,' when used in speaking of the period of time between two certain days generally excludes the days designated as the commencement and termination of such period (citing Words and Phrases First Series, 768).

Statute establishing closed season for mullet between specified dates covers period between dates, but excludes days designated as period's commencement and termination (Laws 1925, c 10123, § 2). Section 2 of chapter 10123, Laws of 1925, establishes the closed season for mullet 'between the 1st day of December of any year and the 20th day of January of the next succeeding year.' The effect of this language is that such closed season begins with the 2d day of December and closes on and including the 19th day of the following January, thus covering the period between the dates named, but excluding the days designated as the commencement and termination of such period.

Mullet, in dealer's lawful possession on November 30th, held not subject to seizure until after midnight of December 6th (Laws 1925, c. 10123, § 2). Inasmuch as said statute provides that any one having any fresh or unsplit mullet or roe on hand at the beginning of the closed season may have five days in which to dispose of same, mullet which a dealer had come into lawful possession of on the proceding November 30, 1926, were not subject to seizure until after midnight of December 6, 1926.

Sheriff held not authorized to sell frozen and stored mullet lawfully caught, vessel with which they were caught not having been seized (Rev. Gen. St. 1920,§ 5829). Section 5829, Rev. Gen. Stats. 1920, confers no authority upon a sheriff to sell mullet, frozen and stored in the tanks of an ice factory, which had been lawfully caught in the open season, the vessel with which they were caught not having been seized nor proceeded against in the courts; that sale of fish cargo contemplated by such statute being incidental to the proceedings for the forfeiture of the vessel.

Appeal from Circuit Court, Okaloosa County; A. G. Campbell, judge.

COUNSEL

Philip D. Beall and John M. Coe, both of Pensacola, for appellant.

J. McHenry Jones, of Pensacola, for appellee.

This is an appeal to review a final decree of the circuit court of Okaloosa county, Florida, granting a permanent injunction against the appellant, defendant in the court below, T. R Hodges, shell fish commissioner of the state of Florida, forbidding the seizure and sale or destruction by him of 6,000 pounds of frozen mullet, alleged to have been the property of the appellee, H. L. Filstrup. C. G. Meigs, a fish dealer, purchased and received possession of 6,000 pounds of mullet on November 30, 1926. The fish were then brought and placed in an ice plant at Niceville, and there frozen into 300-pound blocks of ice. Deputy Shell Fish Commissioner Townsell saw these fish during the process of freezing, and on the 6th day of December, 1926, seized said mullet, and left them where they were located, in the freezing plant of the ice and power company. A deputy sheriff was with Mr. Townsell at the time of the seizure of the fish, and the fish were turned over to the deputy sheriff by him. The sheriff of Okaloosa county claims that Mr. Townsell instructed him to sell the mullet. This Mr. Townsell denies. After turning the fish over to the deputy sheriff, Townsell communicated with the state shall fish commissioner, and on the afternoon of December 7th he received from his the following telegram:

'17PN AM 49 JM Tallahassee Flo 1252 P. Dec. 7 1926 Wm. F. Townsell Jr Deputy Shell Fish Commissioner Crestview Flo Swear out warrant for manager ice plant and also owner of fish turn fish over to sheriff for sale as provided by section fifty eight twenty nine Revised Statutes suggest sheriff ship fish Alvarez Sea Food Company Savannah Georgia on consignment as would hardly be able sell at Niceville. T. R. Hodges. 119P'

Townsell testified that he received that telegram late in the afternoon of December 7th, and about dark on the same afternoon he delivered the same to the deputy sheriff. The sheriff testified that he heard nothing about this telegram until several days later, and acting under the authority already received from the deputy shell fish commissioner he sold the fish at public sale down at the dock near where they were located, on December 8th; that there were quite a few people present, and that the only bidder was the appellee, Filstrup, to whom he sold the fish for $1 and delivered the purchaser a bill of sale; that at the time he had been informed by the manager of the ice plant that the charges for freezing and storage amounted to about $72. Subsequently, Mr. Townsell, deputy shell fish commissioner, endeavored to seize the fish after Filstrup had thus attempted to purchase them, and also made an effort to have the manager of the ice plant arrested. Filstrup was later arrested for buying the fish from the sheriff. It also appears that the above telegram was not actually delivered to the sheriff until the day after the attempted sale to Filstrup. There was also testimony that it was impracticable, if not impossible, to ship the fish in their then condition, frozen into solid blocks of ice, and that the only way they could be sold, to be of any value, would be through retail fish houses located nearby. When, after the sheriff's sale, the appellant by his deputies attempted to take possession of the fish, this bill for injunction was sued out by Filstrup to prevent him from so doing. The bill claimed that the sale by the sheriff to Filstrup was valid. Upon this bill temporary restraining order issued. Thereafter, on January 7, 1927, respondent filed his motion to dissolve the temporary restraining order, alleging among other things that the bill of complaint was without equity, that complainant did not show title in himself, and that no facts appeared showing threat of irremediable injury. This motion was accompanied by a sworn answer, which admitted the seizure on December 6th, admitted that appellant's deputies attempted to take possession of the fish on December 16th, but denying the title of Filstrup...