114 So. 521 | Fla. | 1927
Section 2 of Chapter 10123 of the Laws of 1925 reads as follows:
"That from and after the passage of this Act it shall be unlawful for any person, persons, firm or corporation to take, have in his or their possession, buy, sell, offer for sale or ship any fresh or freshly salted mullet or mullet roe, in this State between the first day of December of any year and the twentieth day of January of the next succeeding year. The possession of any fresh or freshly-salted mullet, or any fresh or freshly-salted mullet roe, by any person, persons, firm or corporation, during the closed season shall be prima facie evidence of the violation of this Act. Provided, however, that anyone having any fresh or unsplit mullet or roe on hand at the beginning of the closed season may have five days in which to dispose of same." The proviso in the quoted section of Chapter 10123 is not rendered inoperative in Okaloosa County, because of its omission *948 from Section 6, Chap. 10527, the local act, approved a few days previous to Chap. 10123. See Sec. 15 of the latter Act. There is in fact no conflict between the two Acts in this respect; especially in view of the provisions of Sec. 15 of the general Act.
"The word "between" means, according to Webster's New International, "In the space which separates, betwixt; as, New York is between Boston and Philadelphia * * In intermediate relation to, in respect of time, quality, quantity, or degree; as between nine and ten o'clock." When the word "between" is used with reference to a period of time, bounded by two other specified periods of time, such as between two days named, the days or other periods of time named as boundaries are excluded. Winans v. Thorp,
It will be noted that the closed season for mullet as fixed by the above quoted statute is, "between the first day of December of any year and the twentieth day of January of the next succeeding year." It follows that the closed season begins with the second day of December and closes on the 19th day of the following January — in other words it covers the period between the first day of December and the twentieth day of the following January, but *949 excludes the dates which are named in the statute as terminii.
It appears, therefore, that Meigs came into lawful possession of the fish involved in this case on November 30th, and that he had five days after the beginning of the closed season in which to dispose of same; that is, he had up to and including December 6th, Therefore, the seizure of the fish by the Deputy Shell Fish Commissioner on December 6th was without warrant of law.
The sale by the sheriff to appellee Filstrup on December 8th was also unlawful, even if such sale had been made under authority from the Shell Fish Commissioner, upon which the evidence was in conflict. This sale was not based upon a valid seizure, nor can it be justified under Sec. 5829 of the Rev. Gen. Stats. This section provides for the seizure of any vessel and its cargo whose owner, officers or crew are violating the provisions of Sec. 5827, R. G. S., fixing a closed season for mullet, and prescribing a proceedings by suit instituted in the name of the State, by which the vessel and its cargo may be sold and the proceeds paid to the Shell Fish Commissioner or deposited in the State treasury. Clearly this could have no application to the seizure of mullet, frozen in the tanks of an ice factory, for the sale contemplated by the statute is only as an incident to the sale of the vessel, and in this case no vessel was seized nor proceeded against, and it further appears that the mullet were caught in the open season; hence the vessel was not forfeitable.
The conclusion is inevitable that the complainant in the court below, who claims under the sale by the sheriff, did not by that sale, which was entirely without warrant of law and void, acquire any right either of title or possession, which he could have enforced or protected by a court of equity. In fact, the statute above quoted prohibited the *950 sale of such mullet after the 6th day of December, and even their possession after that date was likewise prohibited. The views above expressed renders consideration of the other questions raised unnecessary.
The order denying the motion to dissolve the injunction and the final decree of the court below are therefore reversed with directions to dismiss complainant's bill.
Reversed.
ELLIS, C. J., AND STRUM, J., concur.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion.