Askew v. Game & Fresh Water Commission

336 So. 2d 556
CourtSupreme Court of Florida
DecidedApril 21, 1976
Docket46583
StatusPublished
Cited by4 cases

This text of 336 So. 2d 556 (Askew v. Game & Fresh Water Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Askew v. Game & Fresh Water Commission, 336 So. 2d 556 (Fla. 1976).

Opinion

336 So.2d 556 (1976)

ASKEW, Reubin O'd., et al., Appellants,
v.
GAME and FRESH WATER FISH COMMISSION of the State of Florida, Etc., et al., Appellees.

No. 46583.

Supreme Court of Florida.

April 21, 1976.
Rehearing Denied June 11, 1976.

Robert L. Shevin, Atty. Gen., and Charles R. Ranson, Asst. Atty. Gen., for appellants.

James F. McKenzie and D.L. Middlebrooks of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.

BOYD, Justice.

In this proceeding we are reviewing by direct appeal an order from the Circuit *557 Court of Leon County, Second Judicial Circuit of Florida, which initially and directly passed on the validity of several state statutes and construed a provision of the state Constitution. We have jurisdiction.[1]

The cause arose when The Bream Fisherman's Association sought to enjoin the Department of Natural Resources, State of Florida, from introducing a species of fish, the White Amur, into the waters of Deer Point Lake in Bay County. The Department acted under Sections 372.26,[2] 372.925,[3] Florida Statutes (1973), and Section 372.931, as amended by Chapter 74-65, Laws of Florida,[4] which collectively permit *558 *559 the Department to control aquatic weeds in Florida by means of introducing fish into Florida waters without obtaining a permit from the Game and Fresh Water Fish Commission. The Commission, too, brought suit for a permanent injunction against the Department and the case was consolidated with the Association's case.

As it existed on November 26, 1974,[5] Article IV, Section 9 of the Florida Constitution stated:

"§ 9. Game and fresh water fish commission. There shall be a game and fresh water fish commission, composed of five members appointed by the governor for staggered terms of five years. The commission shall exercise the nonjudicial powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute."

The order of the Circuit Court construed the above constitutional provision to find the following unconstitutional: the exemption sentence of Section 372.26; Section *560 372.925 as it applies to fresh water aquatic life; and Section 372.931 as amended by Chapter 74-65, Laws of Florida, on its face.

We agree with the Circuit Court that, standing alone, the former Article IV, Section 9 of the Florida Constitution would require that the challenged statutes be held unconstitutional. However, there is another provision of the Constitution, not mentioned in the order of the Circuit Court, which must be considered. Article II, Section 7, Florida Constitution, states:

"§ 7. Natural resources and scenic beauty. It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise."

In construing the Constitution every section should be considered so that the Constitution will be given effect as a harmonious whole. A construction which would leave without effect any part of the Constitution should be rejected. State v. Bryan, 50 Fla. 293, 39 So. 929 (Fla. 1905). Were we to hold the challenged statutes unconstitutional the Legislature would be stripped of its power in many instances to carry out the policy of abatement of water pollution, as embodied in Article II, Section 7. Consequently we construe former Article IV, Section 9 and Article II, Section 7 together to hold the challenged statutes to be constitutional.

The order of the Circuit Court is reversed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C.J., and ADKINS, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs in result only.

NOTES

[1] Article V, Section 3(b)(1), Florida Constitution.

[2] Imported fish. No person shall import into the state or place in any of the fresh waters of the state any fresh water fish of any species without having first obtained a permit from the game and fresh water fish commission. This restriction shall not apply to the department of natural resources, acting under authority of § 372.925(4).

[3] Florida aquatic weed control act.

(1) This act shall be known as the Florida aquatic weed control act.

(2) The department of natural resources is vested with the authority to direct the control, eradication, and regulation of noxious aquatic weeds and the research and planning related to said activities, as provided by law, so as to protect human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant and animal life and property.

(3) It shall be the duty of the department to guide and coordinate the activities of all public bodies, authorities, agencies, and special districts charged with the control or eradication of aquatic weeds and plants. It may delegate all or part of such functions to the division of game and fresh water fish.

(4) The department shall also promote, develop, and support research activities directed toward the more effective and efficient control of aquatic plants. In the furtherance of this purpose, the division is authorized to:

(a) Accept donations and grants of funds and services from both public and private sources;

(b) Contract or enter into agreements with public or private agencies or corporations for research and development of aquatic plant control methods or for the performance of aquatic plant control activities;

(c) Construct, acquire, operate, and maintain facilities and equipment; and

(d) Enter upon, or authorize the entry upon, private property for purposes of making surveys and examinations and to engage in aquatic plant control activities, and such entry shall not be deemed a trespass.

(5) The department of natural resources may disburse funds to any special district or other local authority charged with the responsibility of controlling or eradicating aquatic plants, upon:

(a) Receipt of satisfactory proof that such district or authority has sufficient funds on hand to match the estate funds herein referred to on an equal basis;

(b) Approval by the department of the control techniques to be used by the district or authority; and

(c) Review and approval of the program of the district or authority by the department to be in conformance with the state control plan.

[4] Presently Section 372.932, Florida Statutes (1975) Nonindigenous aquatic plant control. —

(1) This section shall be known as the "Florida nonindigenous aquatic plant control act."

(2) For the purpose of this section, the following words and phrases shall have the following meanings:

(a) "Department" means the department of natural resources.

(b) "Aquatic plant" is any plant growing in, or closely associated with, the aquatic environment and includes "floating", "emersed", "submersed" and "ditch bank" species.

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