Delmonico v. StateDelmonico v. State
Petition for rehearing in this cause brings to light a circumstance not heretofore made known in either the trial or appellate consideration of this proceeding, the fact of сompliance with the constitutional requirements for local legislation, Section 21 of Article III, Florida Constitution, F.S.A., in the enactment of the statute here involved, Chapter 57-303, Laws of Florida, included in and designated as one of the General Acts of 1957. While the initial presentation of such matter on rehearing is clearly improper under the rules,1 and involves in this case the defense of the statute on a theory not argued below or in briefs here, we deem it advisable in the situation at bar to withdraw the former opinion predicated on lack of published notice or referendum and to trеat the remaining issues upon which the appeals were prosecuted.
These appeals were taken from judgments of conviction entered in the Criminal Court of Record in and for Monrоe County and, upon motion, transferred from the District Court of Appeal, Third District, to this Court and consolidated for disposition as appeals from final judgments of a trial court directly passing upon thе validity of a statute.2
The appellants, defendants below, were arrested by an agent of the Florida State Board of Conservation on September 26, 1961, in Monroe County, Florida, and charged with possession of spearfishing equipment under F.S. Section 370.172(3), F.S.A.,3 enacted as Chapter 57-303, supra. Upon trial before the court, a jury being waived, defendants were found guilty and penalty imposed under the statute.
Among the several grounds urged for reversal is alleged error in denial of a motion for directed verdict based on constitutional invalidity of the subject statute on several grounds. Fundamental to much of appellants’ argument is the contention that the particular section of the statute here involved, the prohibition within the specified area of the “possession of any spearfishing equipment used for spearfishing,”4 is improper because it fails to require proof of the intent essential to any crime such as a showing that the equipment was possessed with an intent to put it to unlawful use. Instead the law penalizes the mere possession of equipment which in itself is wholly innocent and virtually indispensable
In order to meet constitutional limitations on police regulation, this prohibition, i.e. against possession of objects having a common and widespread lawful use, must under our previous decisions be reasonably “required as incidental to the accomplishment of the primary purpose of the Act.”5 There is little doubt that the penalty against possession of such equipment will simplify the problem of enforcing the primary prohibition against spearfishing in the area covered by the statute. Expediency, however, is not the test, and we conclude that convenience of enforcement does not warrant the broad restriction imposed by Sec. 370.172(3).
The record is conclusive that appellants in this case were not charged with any unlawful acts, conduсt, or use of the equipment in question other than having same in their possession, and the distinction between this offense and the primary proscription of the act, against spearfishing within the closed аrea, is not merely one of degree.6 However legitimate may be the objective sought or public interest protected, interference with private rights must be justified as a necessary means of accomplishing that objective.7 Recognizing the lack of any judicial prerogative to prescribe the means by which proper legislative ends shall be accomplished, the principle cited nevertheless requires that the provision in question be measured against practical experience to determine whether it is in fact essential or reasonably necessary in order to achieve the statutory objective. In this сase we think it is clear from the nature of the activity prohibited, i.e. spearfishing, that it is neither inherently clandestine nor, as may be the case with use of nets or seines, impossible to prove by visible evidence on the fish taken. When there exist other methods by which violations can be detected, halted and penalized, then the confiscation of equipment or outlawing its possession goes beyond the bounds of “such reasonable interferences with the liberty of action of individuals as [is] really necessary to preserve and protect” the public interest.8
There is also merit, in our оpinion, to the appellants’ contention that this portion of the statute is beyond the scope9 of the title to Chapter 57-303,10 which indicates
We are fully cognizant of the duty of the courts to uphold the validity of actions of the legislative branch of government in all instances where that result can lawfully be reached. On the other hand, thе process by which courts have in the past and must in the future exercise this power is one of enforcing the paramount law — the will of the people expressed in their Constitution. Our task is to determine whether, in the enactment of the law, the constitutional restraints have been disregarded. If so, the act must then fall. Such is the case here.
The judgment of conviction is reversed.
O‘CONNELL and HOBSON (Ret.), JJ., and WALKER, Circuit Judge, concur.
TERRELL, Acting C.J., and THOMAS and THORNAL, JJ., dissent.
Notes
“(3) The use or possessiоn of any spearfishing equipment used for spearfishing is prohibited on the surface of and under the waters in the area in Monroe county set forth in this section [said area shall include all salt waters undеr the jurisdiction of the state board of conservation beginning at the county line between Dade and Monroe Counties and running south, including all of the keys down to and including Long Key]. * * *
“(5) Any person violating this sectiоn shall upon conviction be fined not less than $100, not more than $500 or imprisoned for not less than 90 days nor more than 6 months, for each offense.”
“* * * This means that the interference with or sacrifice of the private rights must be necessary, i.e. must be essential, to the reasonable accomplishment of the desired goal. Such interference оr sacrifice of private rights can never be justified nor sanctioned merely to make it more convenient or easier for the State to achieve the desired end. This is so because оne, if not the principal, reason for the existence of a democratic form of government is to guarantee to the individual freedom of action in those pursuits which do not harm his neighbors. If there is a choice of ways in which government can reasonably attain a valid goal necessary to the public interest, it must elect that course which will infringe the least on the rights of the individual.”