Nash v. Vaughn

• Decision Date: 18 July 1938
• Court: Florida Supreme Court
• Parties: NASH v. VAUGHN, Chief of Police.

182 So. 827

133 Fla. 499

NASH v. VAUGHN, Chief of Police.

Florida Supreme Court

July 18, 1938

Original habeas corpus proceeding by Barney Nash against E. D. Vaughn as Chief of Police of the City of St. Petersburg, Florida for release from arrest for violating a city ordinance.

Petitioner discharged.

COUNSEL L. P. Hardee and Rancy H. Martin, both of St Petersburg, for petitioner.

Carroll R. Runyon, Lewis T. Wray, Harry I. Young, Arthur R. Thompson and Frank M. Harris, all of St. Petersburg, for respondent.

OPINION

BROWN Justice.

The above cause is before the Court on writ of habeas corpus issued by this Court directed to E. D. Vaughn, as Chief of police of St. Petersburg, and his return thereto. Petitioner was arrested for a violation of Ordinance No. 789-A on a warrant, issued by the Judge of the Municipal Court. The sole issue is the validity of the ordinance in question, which, omitting the caption, is as follows:

'Section 1. That from and after the passage of this ordinance, it shall be unlawful for any person, firm or corporation to take any fish from the waters within the corporate limits of the City of St. Petersburg, with any gill net, seine, drag net or by stopping the course of any waterway (cast nets be excepted).

'Section 2. Any person violating the provisions of this ordinance and after conviction therefor, shall be fined in a sum not exceeding $200.00 or confined in the jail of said city not exceeding 90 days, either or both, in the discretion of the Judge of the Municipal Court trying said case.

'Section 3. It is further ordained that all ordinances or parts of ordinances in conflict with the provisions hereof, be and the same are hereby repealed.

'Passed on its first reading the 4th day of December, A. D. 1933.

'Passed on its second reading the 11th day of December, A. D. 1933.

'Passed on its third and final reading the 18th day of December, A. D. 1933.'

The warrant alleges that 'Barney Nash did unlawfully from the waters of Boca Ciega Bay within the corporate limits of the City of St. Petersburg take fish by the use of a gill net,' contrary to Ordinance 789-A. Section 1.

Petitioner contends that the ordinance aforesaid is invalid for two reasons: (1) That the City of St. Petersburg has no specific charter power enabling it to enact such an ordinance or to regulate the taking of fish within its corporate limits and that the broad general powers granted by the charter are not sufficient to enable the city to pass this ordinance; (2) at least one week did not elapse between the first and second reading of the ordinance, as is necessary under the mandatory requirements of the Charter Act.

It is acknowledged that the City of St. Petersburg has no specific legislative power to enact or enforce the ordinance under attack, but respondent seeks to justify it under the exercise of the police powers granted to the City of St. Petersburg in the most general terms, see chapter 15505, Sp.Acts of 1931, and further because the ordinance does not conflict with any State law.

In State v. Stoutamire, 179 So. 730, this Court, in discussing the ownership and regulation of fish, adopted the generally accepted view that (page 732):

"Fish are classified in the law, largely perhaps because of their migratory characteristics and want of a fixed habitat, as animals ferae naturae. Their ownership, while they are in a state of freedom, is in the state, not as a proprietor, but in its sovereign capacity as the representative and for the benefit of all its people in common; in other words, the right of property in fish, so far as any can be asserted before they are taken and reduced to possession, is common to all the people and cannot be claimed by any particular individuals.

"Upon this fact of public ownership rests to a large extent the governmental power of regulation of fishing.' 11 R.C.L. 1016. See Ex parte Powell, 70 Fla. [363] 366, 70 So. 392.'

And in the same case, text 733, it was stated: 'There is a real distinction and difference between the right of the State in its lands and personal property and its right in fish in the public waters of the State. In its proprietary property it has absolute rights. In fish in the public waters the State has a sovereign right primarily and essentially of preservation, conservation, and regulation for the people of the State, whose right is to take fish from the public waters subject to the regulations imposed by the State for the benefit of the people of the State. People of the State may take fish from the public waters unless forbidden by law.'

This Court has never doubted that the protection and regulation of the salt water fishing industry of the State is a proper subject for legislative activity and has always recognized that the legislature may enact special or local laws for the protection of fish in this State. White v. State, 93 Fla. 905, 113 So. 94; Snowden v. Brown, 60 Fla. 212, 53 So. 548; Stinson v. State, 63 Fla. 42, 58 So. 722; Jones v. State, 93 Fla. 603, 112 So. 556; State v. Stoutamire, supra.

The regulatory power of the State over the fish within its borders being vested in its law making body, the legislature may, as it has been doing for many years, exercise its power by the enactment of statutes dealing with the subject, or, to a certain extent, it may delegate its power of regulation to a board or commission. Likewise the legislature may delegate to a municipality the power to regulate the taking of fish within its corporate limits. It is contended by respondent that a municipality in the exercise of the general police powers granted it by the legislature may enact such regulations for the protection of wild game and fish within its borders as may not be in conflict with general laws of the State, without specific authorization from the legislature.

This Court has never considered the question here presented, and there appears to be but slight authority from the decided cases of other jurisdictions.

In the case of Ex parte John C. Bailey, 155 Cal. 472, 101 P. 441, 31 L.R.A., N.S., 534, 132 Am.St.Rep. 95, the California Supreme Court was considering a similar ordinance of the town of Santa Monica which prohibited the use of any fishing net within said town less than 1000 feet from any wharf, dock or pier located in said town. That Court did not decide whether the municipality had the power to regulate fish within its corporate limits without express authority from the legislature, but gracefully sidestepped the question and decided that the purpose of such an ordinance was not for the preservation and protection of the fish for the benefit of the people of the State, but that its object was to make such wharves, etc., more advantageous for fishing with hook and line and therefore it was clearly beyond the power of the town to enact.

It is stated in Farnham on Waters and Water Rights, Vol. 2, Section 401, page 1431: 'The legislature has the right to confer upon a municipal corporation the power to regulate the fisheries within its limits. But except in private waters of which the municipality has the title, it has, in the absence of statute or custom, no title to, or exclusive control over, the fisheries within its limits.'

And in 11 R.C.L. 1043, it is said: 'The fish swimming in the waters within the boundaries of a state belong to the people of the state, not to the residents of a particular municipality of the state, and therefore, where the state has not delegated to a municipality any power relative to the taking of fish within its limits, it can make no regulations affecting the common right of fishing in public waters.'

In State v. Bunker, 98 Me. 387, 57 A. 95, the Supreme Court of Maine, considering a municipal regulation, stated (page 96): 'It is equally clear that without legislative authority the inhabitants of a town have no power to adopt by-laws or regulations controlling the subject of seashore fisheries.'

The legislature has enacted a great many laws restricting and regulating the taking of fresh and salt water fish in the public waters of this State. See Sections 1826 and 1879, Compiled General Laws of Florida 1927. Also Sections 1902 to 1977 C.G.L.; Chapter 14511, Acts of 1929, Ex.Sess.; Chapter 13799, Acts of 1929; Chapter 15635, Acts of 1931, Ex.Sess., etc.

Section 1826, Compiled General Laws (Chapter 6877, Section 1, Acts of 1915), provides: 'Ownership of fish vested in State.--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 Article.'

It is our conclusion that the legislature, by enacting numerous special and general laws dealing with the conservation of fish and the regulation and restriction of salt water fishing in the public waters within the territorial jurisdiction of the State, clearly indicated that it did not intend that the charter act of the City of St. Petersburg, and similar charters of other municipalities, granting ordinary police powers in general terms, should operate as a delegation to the cities of the power to regulate fishing, in that portion of bays, inlets, etc., that are within the corporate limits of a municipality. The City of St. Petersburg (nor its citizens) have no such proprietary interest in the fish swimming in Boca Ciega Bay, Tampa Bay or the Gulf of Mexico within the corporate limits of the town as would...