Coleman v. State Ex Rel. Cass

On June 24, 1940, Sam Cass was taken into custody under a warrant issued by the justice of the Peace of the Second District of Dade County, Florida, charging that one Sam Cass did unlawfully use a motor boat, to-wit: 10T499 named "Swanee, Jr." for the purpose of fishing, without license, contrary to Chapter 17917, Acts of 1937.

On a petition for a writ of habeas corpus filed in the Circuit Court of Dade County, it was contended that the affidavit and warrant failed to charge a criminal offense under the laws of Florida and that the statute and Act under which the same were drawn were: (a) unconstitutional and void; (b) denied the petitioner the equal protection of the law; (c) deprived him of his liberty; (d) confiscated his property; (e) the said charge in the affidavit and warrant in effect meant the imprisonment of the petitioner for a debt.

The writ of habeas corpus issued and the return thereon as made by the Sheriff of Dade County was that he held the petitioner under a warrant charging the violation of Chapter 17917, Acts of 1937, Laws of Florida, and counsel for the respective parties entered into a stipulation as to facts, viz.:

"IT IS HEREBY STIPULATED AND AGREED by and between Richard H. Hunt, as attorney for petitioner, Sam Cass, and G.A. Worley, as attorney for the respondent, D.C. Coleman, as Sheriff of Dade County, Florida, as follows:

"That petitioner is the captain of the boat "Swanee, Jr.," lying in Miami harbor, which said boat is the property of John Hagan; that the said boat is not used in connection with or as a unit of the fishing industry in any respect, but is used exclusively by the owner for pleasure in yachting and fishing in and about the southeast Florida waters, and in the British West Indies, and that the only type of fishing which the petitioner or the owner, or any guest or invitee upon or making use of said craft, indulges or engages in, is sport fishing by the use of hooks and lines, or rods and reels; that no nets, seines or traps of any description have ever been used upon or in connection with the operations or use of said boat."

On final hearing the lower court discharged the petitioner from custody and the material portions of his order are, viz.:

"The court finds no provisions or terms in the said 1937 Act which could possibly be construed as repealing, either expressly or by necessary implication, any of the terms or provisions of the 1915 Act aforesaid, and particularly the section of said Act which specifically exempts hook and line and rod and reel fishing and fishermen from the terms of said legislation. Construing said statutes together and in parimateria, the court feels compelled to determine and adjudicate the issues of this cause in favor of the petitioner.

"IT IS THEREFORE ORDERED AND ADJUDGED, as follows:

"1. That Chapter 6877, Acts of 1915, does not apply to fishing boats or person fishing only with hook and line, or with rod and red or similar device, and that in fact, persons and boats within this classification are specifically exempt from the terms of said Act. The court further finds that said exemption section and provision, though not specifically carried forward by Chapter 17917, Acts of 1937, is nevertheless continued and maintained in full force and legal effect, both by the express and implied terms of the said 1937 Acts, and that therefore the payment of a license tax or the procuring of any license is not required of persons or boats falling within the aforesaid class.

"2. That in view of these foregoing, the petitioner, who admittedly fishes only with hook and line, or with rod and reel, and hence falls or comes within the exception and exemption provision of the legislation as hereinabove defined and set forth, has committed no offense publishable by or under the terms of either of the aforesaid Acts, and accordingly the respondent, D.C. Coleman, as Sheriff of Dade County, Florida, is ordered and directed forthwith to discharge and release the petitioner from custody."

From the final judgment entered by the Circuit Court discharging the petitioner from custody, a writ of error was sued out and on appeal perfected to this Court and the order of discharge is assigned as error.

The first question propounded by counsel for appellant is, viz.: Is one person who operates a privately owned boat for the purpose of non-commercial sport fishing by the use of hooks and lines, or rods and reels, required to obtain a license on said boat under the provisions of Chapter 17917, Acts of 1937, Laws of Florida?

Section 1 of the Act provides:

"Section 1. That from and after the passage of this Act, there shall be a license required of all boats engaged in or having to do with fishing, such boats being defined as all boats, vessels, schooners and launches that ply in or operate in the tide or salt waters of the State of Florida, engaged in any way in fishing or transporting fishermen or fishing parties or otherwise having to do with fishing or sea foods or other products of the sea or salt waters of the State of Florida. All such boats, vessels, schooners or launches before beginning activities or operating must first procure a license from the Supervisor of Conservation, and for this purpose the owner or owners, captain or agent of such boat, vessel, schooner or launch must present in writing to the said Supervisor of Conservation an application setting forth the name, number, if any, and description of such boat, vessel, schooner or launch, name and post office of owner or owners, together with such further data or information as the Supervisor of Conservation shall deem necessary, upon blanks to be furnished by the Supervisor of Conservation and thereupon the Supervisor of Conservation shall register such boat, vessel, schooner or launch and issue necessary license upon payment therefor and all licenses shall be issued and granted to the boat, vessel, schooner or launch according to the following schedule:

"Boats under sixteen (16) feet long and under four (4) feet beam, One ($1.00) Dollar and Five (05c) cents; boats over sixteen (16) feet long and over four (4) feet beam, Twenty (20c) for each additional foot or fraction thereof of length or beam."

The Legislature intended that all boats, engaged in or having to do with fishing as defined, supra, which operate and ply in the tide or salt waters of Florida, which may transport fishermen of fishing parties or in any way engage in fishing or otherwise having to do with fishing or sea foods or other products of the sea in the salt waters of Florida, should obtain a license. It is admitted that the boat, "Swanee, Jr.," is used exclusively for pleasure by the owner, or guests or invitees in sport fishing by the use of hooks and lines, or rods and reels, and used in and about the southeast Florida Waters and the British West Indies. It appears from the facts agreed to and the quoted provision of Chapter 17917, Acts of 1937, a license is required unless exempt under the provisions of Chapter 6877, Acts of 1915, Laws of Florida.

Counsel for appellee contends that the language, viz.: "The payment of a license tax or the procurement of any license shall not be required of persons fishing with hook and line or with rod and reel or similar device, except as herein otherwise provided," appearing in Chapter 6877, Acts of 1915 (Section 1837 C. G. L.) is preserved to the appellee provided the same is correctly interpreted or construed by this Court. Section 7 of Chapter 17917, Acts of 1937, provides that "this law does not repeal any general, local or special Act or law, but shall be considered and construed as supplementary thereto."

It was the intention of the Legislature in the enactment of Chapter 6877, Acts of 1915, to require a license for boats and vessels engaged in salt water commercial fishing, as shown by Sections 1, 10 and 14 thereof, and some of the material language employed is, viz.:

"Sec. 14. * * * Any and all boats or vessels engaged in the fishing industry in the salt waters of the State, before beginning operations, must first procure a police license from the Commissioner of Agriculture, and for this purpose the owner, captain or agent of such vessel must present in writing to the said Commissioner of Agriculture an application setting forth the name and description of such vessel, name and post office of the owner, the number of nets carried by such boat, and any such further data as said Commissioner of Agriculture shall deem necessary, on blanks to be furnished by the Commissioner of Agriculture, and thereupon the Commissioner of Agriculture shall register such boat or vessel and shall issue necessary license on payment of cost thereof, All licenses shall be granted to the boats or vessel according to the following schedule:

"Boats under 16 feet long and under 4 feet beam, $1.00. Boats over 16 feet long and over 4 feet beam, 20 cents for each additional foot or fraction thereof of length or beam.

"Provided, that any person paying be above license shall not be required to pay an additional license for fishing in any fresh water."

The Legislature was dealing with salt water commercial fishing in the enactment of Chapter 6877, and several years thereafter in the enactment of Chapter 17917, Acts of 1937, undertook to regulate non-commercial salt water fishing or sport fishing by requiring a license for boats used in connection therewith. The exemption claimed to be preserved to the appellee appearing in Chapter 6877 was not carried forward, included in or made a part of Chapter 17917, supra, but the latter Act applies to and regulates a separate and distinct field of legislation from that appearing in Chapter 6877. One Act Applies to salt water commercial fishing, while the other Act applies to non-commercial salt water sport fishing. The legislature has the power to classify business for the purpose of regulation and for taxation. See Mayo v. The Polk Co.,124 Fla. 534, 169 So. 41; State ex rel. Adams v. Lee, 122 Fla. 639,166 So. 249."

It is next contended that the license required by Chapter 17917, supra, is a property tax and contravenes Section 1 of Article IX of the Constitution of Florida in that the equality and uniformity requirement is not observed.

The tax imposed is on the use of the boat when in use in non-commercial sport fishing in the salt water of Florida. The Legislature has the power under the Constitution to impose excise or license taxes within its discretion. See Sheip Co. v. Amos, 100 Fla. 863, 130 So. 699; Amos v. Gunn, 84 Fla. 285,94 So. 615; Hiers v. Mitchell, 95 Fla. 345, 116 So. 81.

Many strong arguments have been advanced against the tax imposed under the provisions of Chapter 17917, supra, some of which appear to be meritorious, but this Court is helpless under the law in granting relief. Many of these arguments should be addressed to the Legislature as this Court cannot pass on the wisdom or folly of legislation.

For the error pointed out the judgment appealed from is hereby reversed and the petitioner remanded for trial under the warrant in the Justice of the Peace Court of Dade County, Florida.

It is so ordered.

TERRELL, C. J., WHITFIELD and BUFORD, J. J., concur.

BROWN, J., dissents.

Justice THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.

ON PETITION FOR REHEARING