71 Fla. 250 | Fla. | 1916
Upon petition to the Chief Justice a writ of Habeas Corpus issued, returnable before the
That your petitioner had complied with Chapter 6877, laws of Florida, Acts Legislature, 1915, and was engaged at the time of his arrest in fishing under a license issued under and by virtue of said Act, Chapter 6877, Laws 1915, duly issued out of and under the authority of the Commissioner of Agriculture of the State of Florida, as will appear from a license hereto attached, and marked Exhibit ‘B,’ with the usual prayer for reference thereto as often as may be necessary.
That said, affidavit charges no offense in this; that it does not allege that the St. Johns river is not connected with or borders on the Atlantic Ocean, or the Gulf of Mexico, and it is apparent that the St. Johns river comes within the purview of Section 1, Chapter 6877, Laws of Florida, Acts of Legislature 1915, ‘Being an Act to Pro
Your petitioner would further show that he is held in custody by said sheriff of Volusia County, Florida, without warrant or authority of law, in that the State relies solely upon Chapter 7120, Act 1915, which said Chapter amends Chapter 6806, Laws of Florida, Acts 1913, which is a local Act being applicable only as is apparent from the title of said Act to the waters in Volusia and Lake counties and not to- the waters in Volusia and Seminole counties, or to the waters of the State of Florida, bordering on or connected with the Atlantic Ocean or the Gulf of Mexico.
Your petitioner would further show that he is held in custody by said sheriff of Volusia County, Florida, without warrant or authority of law, in that Chapter
Your petitioner would further show that he is held in custody by said Sheriff, Volusia County, Florida, without warrant, or authority of law, in that Chapter 7120, is against the organic law, and is in conflict with the General Act, Chapter 6877, Laws of Florida, 1915, in that Section 1, of said Chapter 6877, recognizes the right of the people of the State, to take and usé the fish in the public waters of the State, subject to the regulations therein specified, and especially recognizes the public right, and the privileges of the people, by stating therein what shall be the public waters of the State, and said Local Act, 7120, does not recognize the right of an individual to fish in the public waters of the State; but is so worded, and of such a character, that it does in effect destroy such right, and is in direct conflict with the Constitution of the State of Florida, in that it denies rights retained by the people within the meaning of Section 24 of the Declaration of Rights of the State Constitution, of the State of Florida, and therefore, the said Act, Chapter 7120, Local Laws, of the State of Florida, 1915, is void, and unconstitutional, and is contrary and repugnant to the Constitution of the State of Florida, in that on its face it deprives your petitioner of his property rights, and his liberty without due process of law, and denies to him the equal protection of law which is guaranteed by the Constitution.
Your petitioner would further show that he is held in custody by said Sheriff of Volusia County, without
The return of the Sheriff to the writ presents no new facts and the petition sufficiently indicates the points sought to be presented.
In the argument for the petitioner, it was earnestly urged upon us that the general act regulating the salt water fishing industry of the State, Chapter 6877, controlled the right to fish in the St. Johns River, rather than the special or local act, prohibiting the hauling and dragging of seines in the fresh water rivers in Volusia and Lake counties, Chapter 7170. Both acts were passed at the same session, the general act having been approved May 25, 1915, and the local act bearing date June 4, 1915.
The two acts being in pari materia and having their
Does Chapter 7120 leave any room for construction, for a holding that so much of St. Johns River as lies within the county of Volusia, should be excluded from the inhibition of the local act? That it is a river having its source in the interior of the State admits of no question, and being such a river it is a fresh water river, as defined by section two and legislated upon in section one. Is it a river “in” Volusia county? The legislation creating the county makes its westerly boundary go down the middle of this river; not only was this general act of the boundaries of the counties of the State before the legislature, but the special act removes, all doubt as to the intention to include the St. Johns River within its protection, in the proviso to section one that none of its provisions shall apply to those waters known as Lake George lying in Volusia county. This lake is a part of the St. Johns River, which flows through it. It too is a boundary of Volusia, not lying wholly within that county, but belongs in part to that county, in part to Lake county, and in part to Putnam county. We are constrained to hold therefore that a part at least of the St. Johns River is a fresh water river in Volusia county, and that the legislature has made it unlawful to haul or drag seines in
The power of the legislature over the fishing industry of the State has been so recently and elaborately gone into by this court, that we need only refer to our opinion in Ex Parte Powell. 70 Fla. 363, 70 South. Rep. 392.
We may not consider the financial losses of those engaged in the fishing industry; such matters of policy are for the legislature. Courts are established to apply the law, not to make it.
The petitioner relies on a Salt Water Fishing License, granted by the Commissioner of Agriculture, as being a practical construction of the legislation in his favor by the Executive Department. Two answers present themselves to this suggestion. The courts yield to such constructions only in cases of doubt, and again the license does not purport to permit the hauling and dragging of seines in the St. Johns River in Volusia or Lake counties.
The writ is discharged and the petitioner is remanded.