Christensen v. Commercial Fishermen's Asso.

Chapman, J.

(dissenting)-—This case is here on appeal from an interlocutory order dated March 17, 1938, entered by the Circuit Court of Leon County, Florida, granting a temporary restraining order against the Sheriff of Martin County, Florida, and the Supervisor of Conservation of the State of Florida, against the enforcement of the provisions of Chapter 18676, Laws of 1937, being a special or local law applicable only to Martin County, Florida. The restraining order was entered upon the theory that Chapter 18676, supra, was unconstitutional and void. The material portions' of Chapter 18676, Special Acts of 1937, for consideration in this case are, viz.:

“Chapter 18676 — (No. 970).

“House Bill No. 2017

“An Act Making it 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 Martin County, Florida,’ and Providing a Penalty for Violation of This Act and Specifying the Terms and Conditions in Which This Act Shall Take Effect, and Repealing All Laws in Conflict Hereto.

“Be It Enacted by the Legislature of the State of Florida:

“Section 1. It shall be unlawful for any person, persons, firm or corporation, to fish, or caused to be fished, any haul

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seine or drag net in any of the inside salt waters in Martin County, Florida.

“Section 2. It shall be unlawful for “any person, firm or corporation, to fish or cause to be fished,' any net or nets of any kind, except a common cast net, within a radius of two miles from the center of St. Lucie Inlet, in either the inside or outside waters of Martin County.”

“Section 3. Any one violating this Act shall be punished as provided by the General Law for punishment of misdemeanors.

“Section 4. All laws and parts of laws, both general and special, in conflict with this Act are hereby repealed, provided, however, that nothing in this Act shall be construed to repeal, modify or interfere with the provisions or operation of that ceitain Act passed at this- regular session of the Legislature of Florida of 1937 being House Bill 773, entitled ‘An Act making it unlawful to fish, or cause to be fished, or use, or cause to be used, any drag nets, haul seines, gill nets, or other nets, except common cast nets used for the purpose of catching bait, in that part of Martin County, Florida, located within the territory beginning * * * (etc.)’

“Section 5. Before this Act shall become effective, however, it shall be ratified by the affirmative vote of a majority of the votes cast at an election to be held in Martin County, Florida. Said election shall be held December 6, 1937, after the date of approval of this' Act by the Governor or upon its becoming a law without such approval. The board of County Commissioners of Martin County, Florida, shall call and provide for such election and shall canvass the returns thereof and declare the result thereof not later than two (2) days after said election. At such election only duly registered voters shall be qualified to

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vote and payment of poll tax shall not be required. Notice of such election shall be published once each week for two consecutive weeks in some newspaper published in Martin County, Florida; Said election shall be held in accordance with the law governing general elections, except as otherwise provided in this Act.

“Section 6. It shall be the mandatory duty of the Board of County Commissioners to call an election as provided for in this Act.

“Section 7. In the event a majority of the votes cast in said election shall be declared in favor of the ratification of this Act, then this Act shall be operative and effective on the First day of April, 1938. In the event that the ratification of this Act shall not receive a majority of said votes cast at said election, then this Act shall be ineffective and inoperative for any purpose, however, for the purpose of calling, holding and declaring the result of said election this Act shall become effective immediately upon its becoming a law.”

While the order appealed from is silent as to the reasons or grounds in the mind of the Court below for the unconstitutionality of the Act, supra, it is gleaned from the record and the briefs that the Act was held unconstitutional and void: (a) because the same is in violation of Section 16 of Article III of the Constitution of Florida; (b) that no legal election on the referendum clause contained in Section 5 of said Act was held.

The material portion of Section 16, Article III of the Constitution of Florida against which Section 5 of the Act,

supra,

offends is, viz.:

“Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title;

* * *

It is contended that the use of the words “haul seine or

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drag net” appearing in the title is not broad enough to include the words “any net or nets of any kind” appearing in Section 2,

supra.

In determining whether or not the title of an Act of the Legislature complies with the requirements of Section 16 of Article III of the Constitution of Florida, courts disregard verbal inaccuracies, res'olve reasonable doubt in favor,of validity, and hold generally that in order to warrant condemnation of an enactment for failure to comply with the requirements of the Constitution,

supra,

the violation thereof must be substantial and plain. See Sheip Co. v. Amos, 100 Fla. 863 , 130 So. 699 . It has been repeatedly held by this Court that wide latitude is accorded the Legislature in its enactment of law, and it must be a plain case of violating the requirements of the organic law as to titles of Acts before the courts will nullify statutes'. See Rushton v. State, 75 Fla. 422 , 78 So. 345 ; Williams v. Dormany, 99 Fla. 496 , 126 So, 117 .

In determining the constitutionality of a statute courts should be guided by the substance and manner of operation, rather than the form in which the Act is cast. See Gray v. Central Florida Lbr. Co., 104 Fla. 446 , 140 So. 320 . Likewise, the language, the history and the purpose and objective of the Legislative Act are each to be considered in construing or interpreting a statute.

It will be observed that the title of the Act refers to “haul s'eine or drag net” and Section 2 thereof refers to “nets of all or any kind.” The Legislature was dealing with the subject of nets as it applied to fishing in certain waters of Martin County. Nets used in the taking of fish from these waters were the objectives of the Act. The doctrine

ejusdem generis,

when employed as an aid to statutory construction, is that where an enumeration of specific things' is followed by more general words or

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phrases, such general word or phrase will usually be construed to refer to the things of the same kind or species as those specifically enumerated. See Children’s Bootery v. Sutker, 91 Fla. 60 , 107 So. 345 , 44 A. L. R. 698; Chardkoff Junk Co. v. Tampa, 102 Fla. 501 , 135 So. 457 ; Pompano Horse Club v. State, 93 Fla. 415 , 111 So. 801, 814 , 52 A. L. R. 51. We do not believe that Section 2 of the Act

supra

is subject to the criticism as contended for by counsel for plaintiff in the lower court.

It is next contended that the lower court erred in not entering an order dissolving the temporary injunction previously issued, the pertinent reasons or grounds for dissolving the injunction being: (a) that Chapter 18676, Acts of 1937, being a local Act, was not advertised as required by Section 21 of Article III of the Constitution of Florida; (b) that the allegations of the bill of complaint show that the Board of County Commissioners failed to call and conduct an election in substantial conformity with Seiction 5 of Chapter 18676,

supra.

The record shows that the voters of Martin County, pursuant to an election called by the Board of County Commissioners under Section 5 of the Act passed upon the question at the polls of whether or not they wanted seine or drag net fishing in Martin County. The record shows that the voters of the County expressed themselves at the polls pursuant to an election held under Section 5 of Chapter 18676,

supra,

when 421 voted for prohibiting seining and 413 voted against prohibiting seining, and the entire proceedings held under the Act were incorporated in and made a part of the motion to dissolve the temporary restraining order. We have examined the proceedings made a part of the motion to dissolve, likewise have examined the briefs filed by counsel, and we fail to find that the proceedings held by the Board of County Commissioners' of Martin County in calling the election

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were void or fatally defective. It appears to us that the proceedings were in substantial compliance with the Act and that the lower Court should have sustained the motion to dissolve the temporary restraining order previously issued. The Court should be satisfied that a clear case for injunction is made by the bill of complaint before granting a temporary injunction or restraining order. See Godwin v. Phifer, 51 Fla. 441 , 41 So. 597 .

The granting of the restraining order or temporary injunction rests in the sound judicial discretion of the trial court, and the court is guided by the established rules and principles of equity jurisdiction arising from the facts of the particular case. See McMullen v. County of Pinellas, 90 Fla. 398 , 106 So. 73 ; Savage v, Parker, 53 Fla. 1002 , 43 So. 507 ; Gillis v. State Live Stock Sanitary Board, 94 Fla. 890 , 114 So. 509 ; Builders Supply Co. v. Acton, 56 Fla. 756 , 47 So. 822 ; Holt v. DeLoach-Edwards Co., 56 Fla. 902 , 48 So. 1039 ; Allen v. Hawley, 6 Fla. 142 , 63 Am. Dec. 198 ; McKinne v. Dickenson, 24 Fla. 366 , 5 So. 34 ; Taylor v. Florida East Coast R. Co., 54 Fla. 635 , 45 So. 574 ; 127 St. Rep. 155 , 16 L. R. A. (N. S.) 307, 14 Ann. Cas. 472; Viser v. Willard, 60 Fla. 395 , 53 So. 501 ; Linton v. Denham, 6 Fla. 533 .

I think the court below erred in its order dated April 14, 1938, denying the motion to dissolve the temporary injunction and for this reason the order appealed from should be reversed, with directions for further proceedings by the lower court not inconsistent with the opinion.