Ex Parte Brandamour

| Fla. | May 7, 1926

In habeas corpus proceedings, it appears that H. F. Brandamour was convicted in the County Court of Martin County on an information charging that he "unlawfully, did then and there, fish or cause to be fished a haul seine or drag net in the inside waters of Palm Beach (now Martin) County, Florida." The sentence was to three months imprisonment in the county jail "on failure to pay a fine of $250.00 and costs of court."

The statute provides that "it shall be unlawful for any person, persons, firm or corporation to fish, or cause to be fished, any haul seine or drag net in any of the inside salt waters in the County of Brevard, St. Lucie, Palm Beach, Broward, and all inside salt waters in Dade County north of Biscayne Bay." Chapter 8589, Acts of 1921. Punishment for violating such Chapter, it being a local law, is provided for in Section 5005, Revised General Statutes of 1920, which is as follows:

"The punishment for commission of crimes other than felonies in this State, when not otherwise provided by statute, or when the penalty provided by such statute is ineffectual because of constitutional provisions, or because the same is otherwise illegal or void, shall be a fine not exceeding two hundred dollars or imprisonment not exceeding ninety days, or both, at the discretion of the court."

Snowden v. Brown, 60 Fla. 212" court="Fla." date_filed="1910-06-15" href="https://app.midpage.ai/document/snowden-v-brown-4917615?utm_source=webapp" opinion_id="4917615">60 Fla. 212, 53 South. Rep. 548; Stimson v. State, 63 Fla. 42" court="Fla." date_filed="1912-01-15" href="https://app.midpage.ai/document/stinson-v-state-4917949?utm_source=webapp" opinion_id="4917949">63 Fla. 42, 58 South. Rep. 722.

The title to Chapter 8589, Acts of 1921, apparently does not violate Section 16, Article III, Constitution. By Chapter 10180, Acts of 1925, the County of Martin was created out of portions of Palm Beach and St. Lucie Counties.

The provisions of Chapter 8589, Acts of 1921, have reference to the territory then embraced in the counties named therein and the subsequent formation of the new County of Martin from portions of the territory referred to in Chapter 8589 does not affect the operation of the statute over the same territory within the newly formed county. See McGriff v. State, 66 Fla. 332" court="Fla." date_filed="1913-11-11" href="https://app.midpage.ai/document/mcgriff-v-state-4918390?utm_source=webapp" opinion_id="4918390">66 Fla. 332,63 South. Rep. 724.

The information charging illegal fishing "in the inside waters of Palm Beach (now Martin) County, Florida" shows the alleged illegal act was within the prohibited territory, but the allegation "in the inside waters" does not bring the charge within the provision of the statute which is "in any of the inside salt waters in," etc. Besides this, the sentence is to imprisonment in the county jail for three months "on failure to pay a fine of $250.00 and costs of court," when the penalty provided by the statute, Section 5005, Revised General Statutes of 1920, is "a fine not exceeding two hundred dollars or imprisonment not exceeding ninety days, or both at the discretion of the court.

The information being fatally defective and the sentence in excess of that fixed by the statute, the petitioner is discharged.

TERRELL AND BUFORD, J. J., concur.

BROWN, C. J., AND ELLIS AND STRUM, J. J., concur in the opinion.