State v. Millington, 56681

• Decision Date: 21 November 1979
• Docket Number: No. 56681,56681
• Citation: 377 So.2d 685
• Parties: STATE of Florida, Appellant, v. Earl G. MILLINGTON, Appellee.
• Court: Florida Supreme Court

Page 685

377 So.2d 685

STATE of Florida, Appellant, v. Earl G. MILLINGTON, Appellee.

No. 56681.

Supreme Court of Florida.

Nov. 21, 1979.

Jim Smith, Atty. Gen., and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.

Charles F. Clark and Claude H. Tison, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

ALDERMAN, Justice.

The State of Florida appeals an order of the County Court of Hillsborough County that holds section 370.15(2)(a), Florida Statutes (1977), ¹ unconstitutional, thereby vesting jurisdiction in this Court.

The determinative issue is whether the State of Florida may constitutionally proscribe the possession within its boundaries of "small shrimp" removed from waters outside its boundaries. We reverse and hold that such statutory regulation is not prohibited.

The case arises from the following factual situation. The defendant, Earl Millington, a commercial shrimp fisherman, took from the Gulf of Mexico, at a point outside the boundary of the State of Florida, a quantity of shrimp. The shrimp were subsequently landed at Tampa, Hillsborough County, Florida, and Millington was cited by a Florida Marine Patrol officer for "possession of undersized shrimp" in violation of section 370.15(2)(a). Millington waived his right to be charged by indictment or information and agreed that the prosecution of the charge against him should proceed on the citation. He then moved to dismiss the charge, alleging that section 370.15(2)(a) is unconstitutional because it attempts to extend the state's jurisdiction beyond its boundaries, attempts to regulate natural resources located within the exclusive jurisdiction of the United States, operates to deprive him of his property without due process, denies him the equal protection of the law, and operates to impermissibly burden interstate commerce. The county court granted his motion to dismiss and declared section 370.15(2)(a) "invalid insofar as it attempts to regulate shrimping outside of the territorial limits of Florida and insofar as this defendant is concerned."

The county court, in reaching its decision, focused upon that part of the statute that makes it unlawful for any person, firm, or corporation "to catch, kill, or destroy shrimp or prawn within or without the waters of this state," apparently overlooking the fact that Millington was not charged with any such violation and therefore did not have standing to challenge the constitutionality of this part of the statute. State v. Hill, 372 So.2d 84 (Fla.1979). ²

From the charging document, it appears that Millington was charged only with possession of undersized shrimp at Singleton Dock, on the Ybor Channel, in Tampa, Hillsborough County, Florida, in violation of that part of section 370.15(2)(a) that makes it unlawful for any person, firm, or corporation to "have in his possession any small shrimp or prawn taken in such waters." From the words of the statute alone, it is clear that the legislature intended the prohibition against possession of "small shrimp" to apply to shrimp taken both "within or without the waters of this state." This distinguishes the present case from our prior decision in White v. State, 93 Fla. 905, 113 So. 94 (1927), where, after recognizing the fishing industry to be a proper subject for state legislative regulation and protection, and after concluding that taking and possessing fish of a certain kind below a certain size may be prohibited, we concluded that a statutory proscription against possessing undersized mullet did not apply to mullet caught in the waters of another jurisdiction, absent a provision in the statute clearly showing legislative intent to include within the statutory proscription mullet taken in another jurisdiction.

Having determined that the legislature intended to proscribe the possession in Florida of "small shrimp" taken from both "within or without the waters of this state," we reach the determinative issue in this case: May the State of Florida constitutionally proscribe the possession within its boundaries of "small shrimp" removed from waters outside its boundaries? We hold that such statutory regulation is not prohibited and that this part of section 370.15(2) (a) is constitutional.

Over seventy years ago, the United States Supreme Court, in New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75 (1908) recognized that a state may forbid possession of fish within the state during a closed season, though the effect of such legislation is to prohibit the possession of fish imported from other states. The object of such laws is to protect the local game in the interest of the food supply of the people of the state. The Court held that a New York statute prohibiting the possession of game out of season did not deny due process of law even though the game may have been lawfully taken in a foreign country.

In a more recent case, Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936), the Supreme Court held that a California statute regulating the manufacture, canning, and packing of sardines within that state did not unlawfully interfere with interstate commerce or deny due process and equal protection of the law. The appellant, Bayside, had been engaged in the business of manufacturing fish flour from sardines caught on the high seas beyond the boundaries of the state. The California law, if applied to Bayside, would have prevented it from manufacturing fish flour. The fish flour was made with the expectation that it would be sold and shipped in interstate commerce. The...