Milliken v. State, s. 40002
| Decision Date | 30 June 1961 |
| Docket Number | Nos. 40002,40003,s. 40002 |
| Citation | 131 So.2d 889 |
| Parties | Alton MILLIKEN, Appellant, v. STATE of Florida, Appellee. O'Neil CASION, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Ehrich & Zuckerman, Miami, for appellants.
Richard W. Ervin, Atty. Gen., and Joe L. McClung, Asst. Atty. Gen., for appellee.
These cases are before us on direct appeals from the criminal court of record of Monroe County. They were tried separately but have been consolidated on appeal because the same basic issue is common to both cases. Our jurisdiction is based on direct rulings of the court below on the validity of a state statute.
At the time of the alleged offenses the appellant Milliken was the master of a shrimping vessel named 'The Captain Don', and appellant Caison was the master of another shrimper named 'The Rock and Roll'. These vessels were seen on several separate occasions dragging shrimp nets in an area known and designated by statute as the Tortugas Shrimp Beds. Thereafter appellants were arrested and charged by informations with 'dragging shrimp nets in a prohibited area' on the several occasions in violation of Section 370.151(5), F.S.A.
Milliken's case was tried by a jury but Caison waived jury trial. Both appellants were adjudged guilty and sentenced to pay fines. Prior to trial in each case the appellants filed motions to quash the informations. The motions were identical as to the grounds raised in support thereof.
It was alleged that subsequent to the enactment of Section 370.151, F.S.A. in 1957, the United States and Cuba entered into a treaty designed to set up a commission composed of members from the two countries to promulgate regulations for the conservation of shrimp in the Tortugas area. It was urged that as a result of the entry of the United States into this treaty the control and enforcement of shrimp conservation measures in the Tortugas area became a matter exclusively and solely within the jurisdiction of the federal government and that the Florida statute which covers the same subject matter is no longer operative.
Inasmuch as the motions to quash set up but one ground in their attack on the informations, that ground being the validity of a state statute, and since the trial court denied the motions, it follows as a matter of course that there was inherent in the trial court's denial of the motions a direct ruling on the validity of the state statute in question. Accordingly we hold that we have jurisdiction of this case on direct appeal. Article V, Section 4(2). Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, Fla., 111 So.2d 439; Evans v. Carroll, Fla., 104 So.2d 375.
It is true that it has been held that a state law in conflict with or purporting to regulate the same matter as a federal treaty has been said to be merely unenforceable, suspended or superseded, rather than invalid. See Blythe v. Hinckley, 127 Cal. 431, 59 P. 787. This, however, seems to be placing a hypertechnical meaning on the word validity, and we are of the opinion that under Article V our jurisdiction does not depend on such niceties of construction. If there were merit in the points raised in the motions to quash, then our statute would be, for all practical purposes, 'invalid' in that it would be unenforceable.
In addition to being the basis for our jurisdiction, the ruling of the trial court on the motions to quash presents us with the basic issue on the merits common to both cases. In order to resolve this issue it is necessary to consider the terms of both the state statute and the treaty.
The purpose of Section 370.151 as stated in subparagraph (1) is the conservation of the supply of shrimp in the Tortugas Shrimp Bed. The statute endows the director of the department of conservation with the power to declare the Tortugas Shrimp Beds or portions thereof closed for the purpose of taking shrimp. Upon such closing it is provided that notice shall be given by appropriate buoys or other markings, in newspapers and by radio. Subparagraph (5) of the statute provides that the master or owner of any shrimp vessel dragging its nets in a closed area shall be deemed guilty of a misdemeanor.
The subject treaty, which was signed at Havana, Cuba, August 15, 1958, and which became effective September 4, 1959, applies to 'the waters of the Gulf of Mexico off the coast of Cuba and the Florida coast of the United States, including territorial waters, in which are found stocks of shrimp of common concern', Article I. Article II, paragraph 1 of the treaty provides in part:
'The Contracting Parties agree to establish and operate a commission * * * which shall carry out the objectives of this convention'. (Italics supplied.)
This article goes on to provide for the membership and administration of the commission. Article III gives the commission responsibility for obtaining scientific information concerning shrimp in the convention area, publishing its findings and adopting such regulations as are necessary to effectuate the purposes of the convention.
Article V of the treaty makes provisions for enforcement by the Contracting Parties of 'any regulations which enter into force pursuant to Article III of this Convention.'
Article VII provides:
'Nothing in this Convention shall be construed as preventing either of the Contracting Parties or in the case of the United States, any of the States, from making or enforcing laws or regulations which in the absence of this Convention would be valid relative to any fisheries of the Convention area so far as such laws or regulations do not preclude the discharge of the Commission's responsibilities.'
The appellants contend that the entry into this treaty by the United States serves to preempt the field of shrimp conservation in the subject area and that therefore any Florida statute purporting to regulate the taking of shrimp in the Tortugas Shrimp Beds is inoperative and unenforceable.
We are unable to agree with this contention. In the first place it is noted that the Contracting Parties agreed 'to establish and operate a commission'. The record is completely devoid of any evidence tending to show that such a commission was ever established either by implementing federal legislation or by executive proclamation. Moreover, our research has failed to reveal the establishment or operation of such a commission. It is well settled that a treaty provision will not operate to supersede or suspend a state statute if the treaty is not self-executing and if no implementing legislation has been enacted. Cameron Septic Tank Company v. City of Knoxville, 227 U.S. S. 39, 33 S.Ct. 209, 57 L.Ed. 407; Fujii v. State, 38 Cal.2d 718, 242 P.2d 617. See also cases cited in Sections II a. of the...
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...bears a heavy burden of establishing its invalidity.” Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999) (citing Milliken v. State, 131 So.2d 889, 892 (Fla.1961) ). And “[e]ven in those few Florida cases which have considered the intention and application of the excessive punishments......
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...validity of a statute bears a heavy burden of establishing its invalidity." Wright, 739 So.2d at 1231 (citing Milliken v. State, 131 So.2d 889 (Fla.1961)). However, an exception to the general constitutional presumption enjoyed by statutes and ordinances exists respecting regulations affect......
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Wright v. State, 98-2326.
...a defendant who challenges the constitutional validity of a statute bears a heavy burden of establishing its invalidity. Milliken v. State, 131 So.2d 889 (Fla.1961). Our sister court recently addressed similar constitutional challenges to the same version of section 794.05 in State v. Walbo......
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