70 Fla. 340 | Fla. | 1915
Lead Opinion
The alternative writ of mandamus issued from this court alleges that the relator, Edward H. Clarkson, is a citizen and resident of the State of Florida, and has been such for more than five years last past; that by virtue of Section 25 of Chapter 6535 Acts of 1913, any person who has been a bona fide resident of the State of Florida for one year then passed, may procure a hunter’s license for himself or herself by filing his or her affidavit with the county judge of the county in which he or she resides, stating his or her age, place of residence, postoffice address, color, color of his or her hair and eyes and the fact whether her or she can write his or her name, and by paying one dollar to said county judge; that petitioner on October 15, 1915, filed his affidavit with the county judge in and for Duval county, Florida, the county in which he resides, stating his age, place of residence, postoffice address, color, color of his hair and eyes, and stating that he could write his name, and had been a bona fide resident of the State for fifteen years, and tendered to the county judge one dollar and demanded a hunter’s license, and was by virtue of said section 23 of Chapter 6535 entitled to have a hunter’s license issued to him, giving him the privilege of' hunting in and throughout Duval county, Florida; that the county judge refused to issue said license to petitioner, and assigned as a reason therefor that under and by virtue of Section 19 of Chapter 6969 Acts of 1915, he
A demurrer to the alternative writ, having the effect of a motion to quash the writ, challenges the right of the relator on this writ to assail the Act of 1915 as being unconstitutional, and asserts the validity of the Act and of the sections assailed.
A court will not listen to- an objection made to the constitutionality of an act by a party whose right it does not affect and who has therefore no interest in defeating it. Cooley’s Const. Limitations (6th ed.) 196; Supervisors v. Stanley, 105 U. S. 305; Clark v. Kansas City, 176 U. S. 114, 20 Sup Ct. Rep. 284. A person who does
One cannot raise an objection to the constitutionality of a part of a statute, unless- his rights are in some way injuriously affected by the statute, or unless the constitutional feature renders the entire act void. Gherna v. State, Arizona , 146 Pac. Rep. 494.
The constitutionality of a provision of a statute cannot be tested by a party whose rights or duties are not affected by it, unless the provision is of such a nature that it renders invalid a provision of the statute that does affect the party’s rights or duties. Stinson v. State, 63 Fla. 42, 58 South. Rep. 722.
“Chapter 6969, Acts of 1915.
“An Act Declaring the 'Ownership- of Game and Birds in the Several Counties of the State; to Provide for the P'rotection of same; Providing Open and. Closed Seasons; Providing for Hunter’s Licenses, and for Game Wardens, and Repealing Chapters 6534 and 6535, Acts of 1913, Relating to the Same Subjects.
“Section 1. Ownership and -Title. — The ownership and title to all wild birds and game in the State of Florida are hereby vested in the respective counties of the State, for the purpose of regulating -the use and disposition of the same.”
“Sec. 19. Any person who has been a bona fide resident of the State for twelve months'and of the county
“Sec. 20. Any person who has been a bona fide resident of the State for twelve months, then last past, may procure a hunter’s license in any other county than that of his residence, which license is hereby designated a “Non-Resident County License,” by filing application with the County Judge of the county in which the applicant desires to hunt, accompanied by the certificate of the County Judge of the county in which the applicant resides stating- that the applicant is a bona fid.e resident of said county and of the State, and by paying- the said County Judge of the county in which the applicant desires to hunt, the sum. of three ($3.00) dollars.”
“Sec. 22. No' license shall be required of persons hunting- within the limits of the voting precinct in which they actually reside, or of resident Confederate Veterans who are entitled to the payment of a pension under the laws of Florida.”
“Sec. 26. For the purpose of carrying out and enforcing the provisions of this Act, immediately after its pássage and approval, the Board of County Commissioners of the several counties of the State shall employ a fit and competent person, resident of the county, as County Game Warden, who shall be such Game Warden unless sooner removed for cause, until Tuesday after the first Monday in January, A. D. 19x7, and the Board of
“Sec. 27. The County'Game Wardens shall each, before entering- upon the discharge of their duties, enter into bond in the sum of one thousand ($1,000.00) dollars, with two or more sureties, payable to the Governor of the State and to be approved as are the official bonds of County officers, conditioned that he will well and faithfully perform the duties enjoined upon him1 by law, and shall also take and subscribe the oath of affirmation required by the Constitution of the State.
. “Sec. 28. The salary of the County Game Warden appointed under this Act shall be fixed by the Board of County Commissioners of their respective counties at their first meeting after the passage and approval thereof, and shall not be changed during the term of office of the appointee, and thereafter such salary shall be fixed by
“Sec. 29. The County Game Warden may at his discretion appoint a deputy warden in each election precinct of the county upon such terms and salary or commission as may be mutually agreed upon, such salary or commission to be payable by the County Game Warden, and in no- case chargeable against the county. The deputy wardens shall hold office during the term of office of the County Warden making the appointment, unless by him sooner removed for cause.
“Sec. 30. The County Game Warden, and his deputies shall enforce all laws now enacted or that may be enacted for the protection, propagation and preservation of game animals and birds in the counties of this State, and shall prosecute all persons who violate such law; and he shall at any and all times seize any and all birds and animals that have been caught or killed at any time, in a manner, or for a purpose, or in possession, or which have been shipped, contrary to the game laws of this State.
“Sec. 31. The County Game Warden and his depúties may serve criminal process as sheriffs and constables or may-arrest without warrant any. person or persons violating- the provisions of this Act.
“Sec. 32. The County Game Warden and his deputies shall be allowed for making arrests for violations of
“Sec. 38. Officer Failing to Perform Duty. — Any official, officer, or warden, who shall fail to perform an act, duty, or obligation enjoined upon him by the provisions of the game laws of this State, shall be punished by a fine of not less than fifty dollars nor more than two hundred.”
It is the duty of the courts to enforce valid provisions of a statute; but a statute that is clearly in conflict with organic law should not be enforced. If a duly enacted statute contains provisions that are invalid because in conflict with organic law, and such invalid portions may be severed, and the remainder of the statute may then be made effective for the purpose designed, and will not cause results not intended by the Legislature, and it does not appear that the statute would not have been enacted without the invalid portions, the invalid portions of the Act should be disregarded and the valid portions enforced if it can be done to effectuate the legislative intent. State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. Rep. 969; State v. Tampa Waterworks Co., 56 Fla. 858, 47 South. Rep. 358, 19 L. R. A. (N. S.) 183; El Paso & N. E. Ry Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct.
Section 25 of Chapter 6535 and Section 19 of Chapter 6969 differ mainly in that under the Act of 1913 the applicant is not required to state that he has been a bona fide resident “of the county for six months then last past,” while under the Act of 1915 he is so required.
If the statute unlawfully discriminates against citizens of the State who have not been residents of a county for six months, because of removals from one county to another or elsewhere, the relator does not show by the writ that he is one of the class so affected, but on the contrary it was admitted at the argument on the demurrer in this original proceeding in this court, that the relator had been a resident of Duval county for some years.
In so far as the relator’s rights are affected by section 19 of Chapter 6969 Acts of 19x5, he, being a resident of Duval county for six months, gets no less’benefits than he would have under section 25, Chapter 6535 Acts of 1913. Yet if section 19 is invalid as it affects residents of the State for twelve months who' have not been for six months residents of the county in which they may reside at any particular time, and such invalidity renders the entire section invalid, or if any of the other sections of Chapter 6969 alleged in the alternative writ to be unconstitutional renders section 19 or the whole act unconsti
In determining whether a classification for purposes of legislative regulation is in effect a denial of the equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution, the following rules have been adopted by the Supreme Court of the United States: “1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having- some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Bactel v. Wilson, 204 U. S. 36, 41; Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36; Ozan Lumber Co. v. Union County Bank, 207 U. S. 251, 256; Munn v. Illinois, 94 U. S. 113, 132; Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 615; Lindsley v. Natural Carbonic Gas Company, William S. Jackson, Attorney General of the State of New York
No question of interstate commerce arises in this case. License taxes are not required to be equal or uniform, but they can not lawfully be imposed so as to deny the equal protection of the law. The State has a wide discretionary power in imposing license taxes, and unless there can be no substantial basis for discriminations made in classifications and in fixing the amount of license taxes so that such discriminations must be regarded as purely arbitrary and unreasonable under every conceivable condition in practical affairs, the courts will not interfere with legislative regulations of such matters. Ferguson v. McDonald, 66 Fla. 494, 63 South. Rep. 915; Singer Sewing Machine Co. v. Brickell, 233 U. S. 304. Sup. Ct. Rep. ; Ohio River and Western Railway Co. v. Ditty, 232 U. S. 576, Sup. Ct. Rep. ; Metropolis Theater Co. v. City of Chicago, 228 U. S. 61, 33 Sup. Ct. Rep. 441; Bradley v. City of Richmond, 227 U. S. 477, 33 Sup. Ct. Rep. 318. The burden is on one who complains that he has been denied the equal protection of the laws to sustain the complaint. Peninsular Casualty Co. v. State, 68 Fla. 411, 67 South. Rep. 165.
In determining whether any portions of the act complained of renders the whole act or section 19 invalid, the rights of the relator, as a resident citizen of the State, in the wild game in the State, should be considered.
“Under the Common Law of England the title to animals ferae naturae or game is in the sovereign for the use and benefit of the people, the killing or taking and use of the game being subject to governmental control and
“The Constitution of the State does not forbid the passage of special or local laws upon the subject of game, and it contains no express provision relative to game; therefore the legislature may by a duly enacted law make any provision within its discretion for the preservation and conservation of the game in the State for the use and benefit of the people of the State, by regulating the taking or killing- and use of certain or all kinds of game in any part of the State and during any periods, where such laws do not deny to any one having rights in the premises the due process of law or the equal protection of the laws that are guaranteed to all persons by the State and Federal constitutions. See Blackstone’s Com. 394, 410; Freund on Police Power, Chap. 419; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. Rep. 600; 3 Cyc. 306.”
“The power and discretion of the legislature to control and regulate the subject of hunting- game is not limited by the organic law, and the subject regulated, may be as restricted in manner and extent as the legislature deems advisable; but the regulations should affect aliike all persons similarly situated and conditioned with reference to the particular regulations. Classifications of persons may be in connection with the regulations, but such classifica
“While there may be 110 absolute private property right in game in its natural condition, and while the State may by statute regulate the use of game in any manner and to any extent desired by the lawmaking power, yet the beneficial use of the game in the State belongs to all the people of the State, and a regulation that unjustly discriminates against any of the people of the State may in effect be a denial of the equal protection of the laws to those so unjustly discriminated against. The legislature in protecting game may in its discretion limit a statute in the extent and purpose of its operation, but the regulation must operate upon all persons alike under practically similar conditions and circumstances. The discretion of the legislature in classifying those who are to be affected by a regulation for the protection of game will not be disturbed, by the courts where the classification has some just, fair and practical basis in real differences with reference to the subject regulated and all doubts will be resolved in favor of the validity of a statute. See State v. Sherman, Wy. , 105 Pac. Rep. 299;
In Harper v. Galloway it was held that a statute was invalid as denying the equal protection of the laws, wherein it gave to residents of Marion County certain privileges with reference to game in that county that were denied to residents of other counties of the State while citizens of Marion County were not denied in other counties the same privileges as to game therein as residents of such counties had.
The purported vesting of the ownership and title to all wild birds and, game in the State in the respective counties, may be unimportant in so far as the bare legal title is concerned, if the provisions of the act “regulating the use and disposition of the same,” do not in effect materially impair the rights of “all the people of the State” therein.
The Legislature may have contemplated circumstances that may arise in enforcing the prescribed regulations, that would justify the difference in the amount of the license tax, and it does not on the showing here made and the consideration here required clearly appear beyond all reasonable doubt that the discrimination has no lawful basis whatever and is wholly arbitrary and oppressive' upon residents of the State who desire-to hunt in counties other than that of their residence the game in which-they have a qualified property interest in common with all the people of the State.
Under the constitution of this State the expenses of prosecutions for crime are borne by the county where the crime is committed. Violations of the statute are made a crime and are punishable as such. As the violations occur in counties where the game is, and as the expenses of prosecutions are borne by the county, it seems reasonable that persons from other counties should pay a larger license tax. The license tax requirement affects alike all residents of the State who desire to hunt in a county other than the one in which they reside. The bur
The objection to section 22 that it discriminates in favor of Confederate veterans, is not argued, and as the effect of the section may be negligible the question as to it is treated as abandoned.
Sections 26, 27, 28, 29, 30, 31 and 32 must be eliminated as clearly violative of the provisions of the constitution requiring such officers to be appointed by the Governor or elected by the people and their compensation to be fixed by law. State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 South. Rep. 721; Board of Commrs. of Hillsborough County v. Savage, 63 Fla. 337, 58 South. Rep. 835. But such elimination will not necessarily render the entire act inoperative. It may be enforced by other officers, such as the sheriffs and their deputies.
As the assumed invalid portions of the act do not necessarily render the entire act, or section 19 thereof, inoperative for any useful purpose as intended, section 19 with the stated elimination therefrom remains opera
The demurrer to the alternative writ is sustained.
Taylor, C. J., and Cockrell and Ellis, JJ., concur.
Shackleford, J., absent on account of illness.
Rehearing
On Rehearing.
In a petition for rehearing it is stated in effect that the court failed to consider the validity, the intent and the effect of section 1 of Chapter 6969, asserted to have been passed not as a revenue act or as a police regulation but upon the legal theory of the ownership of the game by the respective counties and making' the license taxes imposed merely incidental to the protection of the game; and failed to consider that the important part of the act are the provisions for officers having especially in charge the enforcement of the act, and that to allow the valid sections of the act to stand would accomplish a result not intended by the Legislature; and failed to consider the validity and effect of sections 18 and 39 and a portion of section 25 of the act; and failed to consider and define the term “bona fide resident” as used in sections 19 and 20, and to consider that the elimination of portions of the act leaves the game without the special protection sought to be given by the act, and does not revive other laws expressly repealed by section 39, and to consider that the main purpose of the act is the preservation and protection of game and not the incidental issuing of hunting licenses in each county where hunting is done, and to consider that the invalid portions neces
Though the relator was not asserting a right to a license in any county except the one in which he resides, the opinion indicates the rights of all bona fide residents of the State to obtain licenses to hunt in any county of the State. There was nothing in the pleadings calling for a definition of a "bona fide resident.” The opinion expressly states that the main purposes of the act are the preservation and protection of game and the issuing of hunter’s licenses in each county where hunting is done; and this determination is clearly right in view of the title and the language of the act considered alone or in connection with previous laws on the subject. It is also clear that the act intended to provide special officers to enforce the provisions of the act; but though this portion of the act is violative of the constitution and therefore inoperative, the other portions of the act are not thereby rendered inoperative, since as distinctly held, the provisions -of the act may be enforced by the established authority of the county officers. The portion of section 25 relating to the compensation of officers attempted to be provided for necessarily falls with the inoperative sections relating to such attempted officers.
The fact that section 18 provides that fines and penalties and forfeitures under the act shall go into the fine and forfeiture fund of the county and that half of the fines and penalties shall be paid witnesses, does not necessarily render illegal the requirement that a license tax
The act is regarded as a police regulation for the protection of the game in the State, for the benefit of the whole people of the State; and, as expressly held in the main opinion, the provision of section i as to the vesting of the bare legal title in the counties, is not material in view of the purpose of the act to protect the game for the people of the State, the unlawful discriminations as to time of residence in a county being eliminated as inconsistent with the rights of all the residents of the State.
Section 39 repeals Chapters 6534 and 6535, and all other inconsistent laws, but this does not destroy the effectiveness of the sections of the act held to be operative, nor does the elimination of the invalid portions of the act accomplish a result of primal consequence that was not intended by the Legislature. A consideration of the title or the body of the act does not show that its main and essential purpose was to establish game wardens to protect game, but to protect game with a change in the method of issuing license that would be fairer to the counties in which game is found, the provision as to game wardens being not a primary purpose of the act.
The net proceeds of license taxes collected are required to be paid into the county school fund, but on the pleadings in this case it is not material whether the act is or is not in part a revenue measure or whether revenue
A rehearing is denied.
Taylor, C. J., and Cockrell, Whitfield and Ellis, JJ., concur.
Shackleford, J., takes no part.