State Ex Rel. Gray v. Stoutamire

• Decision Date: 08 March 1938
• Citation: 179 So. 730,131 Fla. 698
• Parties: STATE ex rel. CRAY v. STOUTAMIRE, Sheriff.
• Court: Florida Supreme Court

179 So. 730

131 Fla. 698

STATE ex rel. CRAY v. STOUTAMIRE, Sheriff.

Florida Supreme Court

March 8, 1938

Error to Circuit Court, Leon County; E. C. Love, Judge.

Habeas corpus proceeding by the State of Florida, on the relation of F. C. Gray, against Frank Stoutamire, as Sheriff of Leon County, Fla. F. C. Gray was remanded to the sheriff's custody, and F. C. Gray brings error.

Reversed.

COUNSEL J. Lewis Hall, of Tallahassee, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen for defendant in error.

OPINION

WHITFIELD Presiding Justice.

The title and sections 1 and 2 of chapter Florida Power Corporation on said River May 25, 1937, are as follows Gadsden and Leon in the State of Florida; Taking Fresh Water Fish from Certain Parts of the Ochlockonee River Lying Within the Counties of Liberty, Gadsden and Leon in the State of Florida and Providing a Penalty for Violation of the Provisions of this Act.

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. For a period of two years from and after this Act becomes effective, it shall be unlawful for any person or persons to fish in, or to take or remove by any means whatsoever, fish of any and every kind from the waters of those parts of the Ochlockonee River situated any lying between the bridge on State Road No. 19 across said River and the dam of the Florida Power Corporation on said ,River and located in the counties of Liberty, Gadsen and Leon in the State of Florida; provided that the Commission of Game and Fresh Water Fish of the State of Florida may remove or cause to be removed any Gar Fish, Mud Fish, or other predatory fish when in its judgment their removal is desirable.

'Section 2. Any person or persons, firm or corporation violating the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than $500 or by imprisonment in the county jail for not more than 6 months or by both such fine and imprisonment.'

Section 2 violates section 20, article 3, of the Constitution, but, if section 1 of chapter 18731 is constitutional, a penalty for its violation is prescribed by section 7104(5005), C.G.L. Douglas v. Smith, 66 Fla. 460, 63 So. 844; Snowden v. Brown, 60 Fla. 212, 53 So. 548.

'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. 1015. See Ex Parte Powell, 70 Fla. 363, 70 So. 392.

On writ of habeas corpus issued by Honorable E. C. Love, judge of the Second judicial circuit, the return of the Honorable Frank Stoutamire, sheriff of Leon county, was that he holds the petitioner by reason of a warrant issued by a justice of the peace of the Fourth district of Leon county, Fla., charging that on November 30, 1937, in the county and district aforesaid, 'one F. C. Gray, did then and there fish in that part of the Ochlockonee River situate, lying and being between the bridge on State Road No. 19 across said river and the dam of the Florida Power Corporation on said River.'

The judge rendered the following final order:

'This cause coming on to be heard on Writ of Habeas Corpus heretofore issued, to-wit, on the 20th day of December, A.D. 1937, returnable before the undersigned, as Circuit Judge, and said cause being submitted to the Court on the return filed by Respondents and the arguments of Counsel, and it appearing to the Court that F. C. Gray was arrested on the 30th day of November, A.D.1937, under and by virtue of a warrant issued by the Honorable Avery Hartsfield, Justice of the Peace of the Fourth District of Leon County, and it further appearing to the Court that F. C. Gray filed Petition for Habeas Corpus on the 20th day of December, A.D.1937, and that on the same day Writ of Habeas Corpus issued from the above entitled Court, and on the same day was duly served upon the Respondent herein his on the same day the Respondent filed his return to the Writ of Habeas Corpus and it appearing to the Court that the only question of Law involved in said proceedings is the constitutionality of chapter 18731 of the [Special] Acts of the Legislature of the State of Florida, 1937, and the Court having considered the same, and there being in the mind of the Court a reasonable doubt as to the constitutionality of said Act, and it further appearing that said reasonable doubt should be resolved in favor of the constitutionality of said Act and against Petitioner; and the Court being of the opinion that said Act is a general Act because affecting the interest of, and equally binding upon, all the people of the State of Florida, whether residing in the particular locality or not, and being local only so far as the place where the provisions of said Act may be violated:

'It is ordered and adjudged That Petitioner be and he is hereby remanded to the custody of respondent.'

Upon writ of error to this court allowed by the circuit judge, the plaintiff in error presents the following question:

'Is a statute valid which regulates fishing in a portion of a specified river, which portion is only one-half mile in length, when notice of intention to apply for the passage of said Act was not given in accordance with article 3, section 21 of the Constitution of the State of Florida?'

The Constitution of Florida does not forbid the enactment of special or local laws regulating fishing in the public waters of the State, but it does contain the following:

'No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the Legislature of such a bill, and in the manner to be provided by law.' Section 21, art. 3, as amended in 1928.

There is no definition of general or local or special bills or laws in the Constitution; but it has been stated that 'a statute relating to * * * subjects or to persons or things as a class, based upon proper distinctions and differences that inhere in or are peculiar or appropriate to the class, is a 'general law'; while a statute relating to particular subdivisions or portions of the state, or to particular places of classified localities, is a 'local law'; and a statute relating to particular persons or things or other particular subjects of a class, is a 'special law." State ex rel. v. Daniel, 87 Fla. 270, 287, 99 So. 804, 809.

The statute here considered does not regulate fishing in the entire State; nor does it operate within a classified portion of the State; but it forbids any fishing in a particular portion of a river between a designated highway bridge and the dam of a particular power corporation. It is therefore local as to the area in which it operates, and it is conceded that notice of enactment was not published as is expressly required for 'special or local laws' by the Constitution and by the statute which the Constitution required to be enacted as to such published notice. The statute has no referendum provision. Section 21, art. 3.

But it is argued for the State that publication of notice was not required because the statute is not a local law within the provision of the Constitution requiring notice to be given of its proposed enactment for the reason that the fish in such river belong to the people of the State; and that 'the mere fact that a law is local as to its point of violation, does not make is a local law so long as it operates on the people of the State as a whole.' 25 R.C.L. 818; 59 C.J. 728-731, are cited. See, also, State v. Corson, 67 N.J.L. 178, 50 A. 780; State v. Hand, 96 Fla. 799, 119 So. 376.

Such a rule might be applicable here if the fish were the absolute property of the State, as are the properties of State institutions, State buildings, State lands, State funds, and other property owned by the State in its proprietary capacity. See State v. Clements, 220 Ala. 515, 126 So. 162.

The authorities cited in support of the State's contention are not in entire harmony with previous decisions of the courts of this State as to the enactment of local laws regulating fishing in the public waters of the State. See Lipscomb, as Sheriff, v. Gialourakis, 101 Fla. 1130 133 So. 104; Harper v. Galloway, 58 Fla. 255, 51 So. 226, 26 L.R.A.,N.S., 794, 19 Ann.Cas. 235. See Barker v. State Fish Commission, 88 Wash. 73, 152 P. 537, Ann.Cas 1917D, 810; State v. Phillips, 70 Fla. 340, 70 So. 367, Ann.Cas.1918A, 138; Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437; Snowden...