State v. Hand

• Decision Date: 17 December 1928
• Citation: State v. Hand, 119 So. 376, 96 Fla. 799 (Fla. 1928)
• Parties: STATE ex rel. OGLESBY v. HAND, Sheriff.
• Court: Florida Supreme Court

119 So. 376

96 Fla. 799

STATE ex rel. OGLESBY v. HAND, Sheriff.

Florida Supreme Court, Division A.

December 17, 1928

Error to Circuit Court, Seminole County; W. W. Wright, Judge.

Habeas corpus by the State, on the relation of Eugene Oglesby against C. M. Hand, Sheriff. To review a judgment remanding petitioner to custody of the sheriff to abide judgment of county court, petitioner brings error.

Affirmed.

(Syllabus by the Court.)

COUNSEL

J. U. Gillespie, of New Smyrna, for plaintiff in error.

Fred H Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for defendant in error.

OPINION

ELLIS C.J.

Eugene Oglesby was charged with unlawfully attempting to take fresh-water fish from Lake Monroe in Seminole county by means of a drag seine more than 200 yards in length, and was convicted and sentenced to pay a fine of $10, with an alternative sentence of 30 days in jail in default of payment of the fine.

While in custody of the sheriff under the judgment the petitioner applied for a writ of habeas corpus and moved for his discharge upon the ground that the act under which he was convicted was unconstitutional. The circuit judge before whom the writ was returned remanded the petitioner to the custody of the sheriff to abide the judgment of the county court. Oglesby took a writ of error to that judgment.

An attack is made upon the validity of chapter 11838, Laws of Florida 1927.

The offense with which the accused was charged is denounced by section 25 of the above-named act, which prohibits the taking, or attempting to take, any fresh-water fish from the fresh waters of the state by means of any device except hook and line, rod and reel, bob, spinner, or troll, unless specifically permitted by the act. Section 74 of the act provides for the punishment to be inflicted upon the person found guilty of violating any of the provisions of the act.

It is contended that the act is bad because its title fails to express the different subjects covered by the act.

The purpose of the act was to create the department of game and fresh-water fish, and the office of state game commissioner, and to provide for the protection and conservation of game, nongame birds, fresh-water fish, and fur-bearing animals. The title of the act is unnecessarily full. Its subject is set out in the first two lines: 'An Act Relating to Game, Non-Game Birds, Fresh Water Fish and Fur-Bearing Animals.' The remainder of the title deals with the means or agencies through which the purpose of the legislation shall be developed and executed.

Unnecessary or superfluous matter contained in the title is not calculated to deceive or mislead. While the title need not be an index to the contents of the act, it is not rendered bad by amplification to embrace matters germane to and properly connected with the general subject. See State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929; State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 363, 27 So. 221.

Where all the provisions of an act are germane to the subject and are properly connected with it, the criticism that it violates constitutional provisions restricting each law to one subject is not well founded. Article 3, § 16, Constitution.

The provision forbids the Legislature to embrace in one act two unconnected subjects. See Schiller v. State, 49 Fla. 25, 38 So. 706; Fine v. Moran, 74 Fla. 417, 77 So. 533; Smith v. Chase, 91 Fla. 1044, 109 So. 94.

Only the subject and not matters properly connected therewith is required by the Constitution to be expressed in the title to an act. See Hayes v. Walker, 54 Fla. 163, 44 So. 747; Thompson v. State, 66 Fla. 206, 63 So. 423; Ex parte Pricha, 70 Fla. 265, 70 So. 406; Ex parte Gilletti, 70 Fla. 442, 70 So. 446.

Where the title of an act expresses its subject with sufficient certainty to give reasonable notice of matters dealt with by the act and of its scope, and reasonably leads to inquiry as to its contents, it is sufficient. See Lainhart v. Catts, 73 Fla. 735, 75 So. 47.

There must be a plain case of violating the constitutional requirement before the court will nullify statutes as not being within the subject embraced in the title and of matter properly connected therewith. See Rushton v. State ex rel. Collins, 75 Fla. 422, 78 So. 345; State ex rel. Terry v. Vestel, 81 Fla. 625, 88 So. 477; Lewis v. Leon County, 91 Fla. 118, 107 So. 146.

Wide latitude must of necessity be allowed the Legislature in its enactments of law. 'The subject of an enactment may be as broad or as restrictive as the Legislature may determine, in the absence of controlling organic provisions.' See Smith v. Chase, supra.

The act deals with the subject of the conservation of fish and game in this state. Fish can and should be classed as game. See 8 Am. and Eng. Ency. Law, 1023.

Blackstone, in writing of animals ferae naturae, classes fish with fowls of the air, there being in nature no distinction between one species of wild animals and another. 2 Blackstone's Com. 403. See, also, 2 Kent's Com. 416.

Fish within the waters of a state are a species of property commonly designated as wild game. See State v. Southern Coal Co., 71 W.Va. 470, 76 S.E. 970, 43 L. R. A. (N. S.) 401; 26 C.J. 594.

In the case of People v. Truckee Lumber Co., 116 Cal. 397, 48 P. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183, it is held that fish within the waters of a state constitute the most important part of that species of property commonly designated as 'wild game,' the general right and ownership of which is in the people of the state. The right to protect such property for the common use and benefit is one of the recognized prerogatives of the sovereignty. This right of the state is abundantly sustained by the highest authority. McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248; Geer v. State of Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793.

The act is not amenable to the criticism that it embraces more than one subject and matter properly connected therewith, because it creates a state department of game and fresh-water fish and the office of state game commissioner and prescribes his powers, duties, and compensation and provides for the appointment of a 'wild life conservation commission' and prescribes its duties. All such matters, as well those which prohibit fishing and hunting without license as those regulating the method or means by which wild animals or fish may be captured and providing penalties for violating the act, are proper provisions in connection with the subject.

It is no constitutional objection to an act that the Legislature has provided in it for unnecessary, cumbersome, expensive, and complicated machinery for the execution of the idea which constitutes the subject of the legislation. Such criticism may go to the wisdom but not the power of that body of lawmakers. It might have divided the subject into as many parts as there are species of wild game to be conserved and provided cumbersome and expensive machinery for the execution of the statute in each case, but that it puts all species of 'wild life' under the jurisdiction of one agency of the government in one act is more to be commended than adversely criticized. That it provides too much machinery, too many officers, agents, deputies, etc., and vests them with too many and varied powers, goes to the judgment of those who make the laws for the state, but not to their power in Legislature assembled.

It is contended that the act is bad because, while it purports to be a general law, it contains provisions that are local in character and...