Donald DELMONICO, Appellant,
v.
STATE of Florida, Appellee.
Supreme Court of Florida.
155 So. 2d 368 (Fla. 1963)
[p. 369]
DREW, Justice.
* * *
The appellants, defendants below, were arrested by an agent of the Florida State Board of Conservation on September 26, 1961, in Monroe County, Florida, and charged with possession of spearfishing equipment under F.S. Section 370.172(3), F.S.A., [n. 3] enacted as Chapter 57-303, supra. Upon trial before the court, a jury being waived, defendants were found guilty and penalty imposed under the statute.
3 "(3) The use or possession of any spearfishing equipment used for spearfishing is prohibited on the surface of and under the waters in the area in Monroe county set forth in this section [said area shall include all salt waters under the jurisdiction of the state board of conservation beginning at the county line between Dade and Monroe Counties and running south, including all of the keys down to and including Long Key]. * * * "(5) Any person violating this section shall upon conviction be fined not less than $100, nor more than $500 or imprisoned for not less than 90 days nor more than 6 months, for each offense."Among the several grounds urged for reversal is alleged error in denial of a motion for directed verdict based on constitutional invalidity of the subject statute on several grounds. Fundamental to much of appellants' argument is the contention that the particular section of the statute here involved, the prohibition within the specified area of the "possession of any spearfishing equipment used for spearfishing," [n. 4] is improper because it fails to require proof of the intent essential to any crime such as a showing that the equipment was possessed with an intent to put it to unlawful use. Instead the law penalizes the mere possession of equipment which in itself is wholly innocent and virtually indispensable [p. 370] to the enjoyment of the presently lawful and unrestricted right of appellants in common with the public at large to engage in spearfishing in waters on all sides of the area covered by the statute. There are presented certain obvious and, as a practical matter, insoluble problems for those who may of necessity traverse this portion of the coastal waters of Monroe County en route to or in the course of fishing from boats in adjacent areas.
4 The word "used" in the statute is probably employed to mean "adaptable to use" or designed to be used for spearfishing. The language could refer to spearfishing equipment which had been theretofore actually used for such purpose. At best the language is ambiguous and of doubtful propriety as a restraint on the possession of such equipment under the police power generally, an issue not specifically raised in this proceeding. Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102; Irvin v. State. 52 Fla. 51, 41 So. 785. See also State v. Hefflin, 1935, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301, 1311, and Parkes v. Bartlett, Judge of Recorder's Court, 236 Mich. 460, 210 N.W. 492, 47 A.L.R. 1128, 1134, for the problem of criminal intent in connection with penalties for possession of property not criminal per se.In order to meet constitutional limitations on police regulation, this prohibition, i.e. against possession of objects having a common and widespread lawful use, must under our previous decisions be reasonably "required as incidental to the accomplishment of the primary purpose of the Act." There is little doubt that the penalty against possession of such equipment will simplify the problem of enforcing the primary prohibition against spearfishing in the area covered by the statute. Expediency, however, is not the test, and we conclude that convenience of enforcement does not warrant the broad restriction imposed by Sec. 370.172(3).
The record is conclusive that appellants in this case were not charged with any unlawful acts, conduct, or use of the equipment in question other than having same in their possession, and the distinction between this offense and the primary proscription of the act, against spearfishing within the closed area, is not merely one of degree. However legitimate may be the objective sought or public interest protected, interference with private rights must be justified as a necessary means of accomplishing that objective. [n. 7] Recognizing the lack of any judicial prerogative to prescribe the means by which proper legislative ends shall be accomplished, the principle cited nevertheless requires that the provision in question be measured against practical experience to determine whether it is in fact essential or reasonably necessary in order to achieve the statutory objective. In this case we think it is clear from the nature of the activity prohibited, i.e. spearfishing, that it is neither inherently clandestine nor, as may be the case with use of nets or seines, impossible to prove by visible evidence on the fish taken. When there exist other methods by which violations can be detected, halted and penalized, then the confiscation of equipment or outlawing its possession goes beyond the bounds of "such reasonable interferences with the liberty of action of individuals as [is] really necessary to preserve and protect" the public interest.
6 6 Fla.Jur.Const.Law, Sec. 164, 183.* * *
7 "* * * This means that the interference with or sacrifice of the private rights must be necessary, i.e. must be essential, to the reasonable accomplishment of the desired goal. Such interference or sacrifice of private rights can never be justified nor sanctioned merely to make it more convenient or easier for the State to achieve the desired end. This is so because one, if not the principal, reason for the existence of a democratic form of government is to guarantee to the individual freedom of action in those pursuits which do not harm his neighbors. If there is a choice of ways in which government can reasonably attain a valid goal necessary to the public interest, it must elect that course which will infringe the least on the rights of the individual." State v. Leone, Fla.1960, 118 So.2d 781, 784.
We are fully cognizant of the duty of the courts to uphold the validity of actions of the legislative branch of government in all instances where that result can lawfully be reached. On the other hand, the process by which courts have in the past and must in the future exercise this power is one of enforcing the paramount [**8] law - the will of the people expressed in their Constitution. Our task is to determine whether, in the enactment of the law, the constitutional restraints have been disregarded. If so, the act must then fall. Such is the case here.
The judgment of conviction is reversed.