I dissent to the original opinion *Page 496 in this case and on this petition for rehearing I think I should state the grounds for my dissent.
In the first place, I am of the opinion that the exemption provision contained in Section 14 of Chapter 6877 of the Laws of 1915, is retained and preserved in full force and effect, as applied to the provisions of Chapter 17917, Acts of 1937, by reason of Section 7 of Chapter 17917.
Chapter 6877 imposes a license tax on any and all boats or vessels engaged in the fishing industry in the salt waters of the State, which license tax must be renewed annually, and amounts to one dollar on boats under 16 feet long and under 4 feet beam, and twenty cents for each additional foot or fraction thereof of length or beam. But it especially provides that: "The payment of a license tax or the procuring of any license shall not be required of persons fishing only with hook and line or with rod and reel or similar devices." See last paragraph of Chapter 6877, which appears as Section 1837 of the Compiled General Laws of Florida of 1927.
Chapter 17917 is: "An Act relating to the salt water fishing in the State of Florida in tidal waters and other territorial waters of the State of Florida and providing a license tax on all boats, vessels, schooners or launches operating and or plying in the tidal and salt waters or other waters under the of the State Board of Conservation of the State of Florida," etc.
Thus both statutes deal with salt water fishing.
Chapter 17917 was adopted in 1937 and it contains this express provision, in Section 7 of the statute: "This Act does not repeal any general, local or special Act or law, but shall be considered and construed as supplementary thereto."
Now, certainly Chapter 6877 is a general law, and in Section 14 thereof it expressly provides that persons fishing *Page 497 only with hook and line or with rod and reel shall not be required to procure any license, or pay any license tax.
Chapter 17917 provides for practically the same amount of license tax, based on the same sizes of boats, as that provided for in the older Act, but it does not state what length of time such license would cover; that is, under the latter Act, it was left an open question as to whether the license ran for the life of the boat or should be renewed annually. This question was settled in a decision handed down by this Court in March of 1939 in the case of Scott v. Worthington, 136 Fla. 708,187 So. 369, in which case, this Court, in plain language said:
"We think it must be renewed annually. Chapter 17917 merely imposes the license without specification as to its life but Section 7 of the Act in terms requires that it be construed assupplementary to all general and special laws on the samesubject and both Section 3 of Chapter 18011, Acts of 1937, relating to occupation licenses, and Section 15 of Chapter 6877, Acts of 1915 (Section 1838, Compiled General Laws of 1927) relating to the same subject matter, limit such licenses to one year. Chapter 17917 must be read A connection with theseActs and when done, it follows that such licenses must be renewed annually." (Emphasis supplied.)
It is perfectly plain to my mind that the rule laid down in this decision is correct and that, when applied here, it would mean that boats used for hook and line or rod and reel fishing are still exempt from this tax by reason of the exemption provisions contained in 6877, which is not repealed by the latter Act, said latter Act being merely supplementary to the prior statute. "This conclusion is supported by our holdings in State v. McMillan, 55 Fla. 246, 45 So. 882, and Amos v. Conkling, 99 Fla. 206, 126 So. 283. *Page 498
I think that the attempt to collect this tax from hook and line fishermen is not authorized for another reason. Chapter 17917 is a revenue tax measure, containing no regulatory provisions of any nature, and is devoid of any connection with the preservation of the public health, safety, morals or general welfare. Therefore, it cannot be sustained as a license tax imposed under the police power of the State. As to those engaged in the fishing industry, which is a business enterprise, I think the tax enforceable and collectable. The exemption provision does not apply to them. As against common-place hook and line, rod and reel fishermen, who engage in fishing as an occasional sport or pastime, or to catch a few fish for the family table, the placing of a tax in proportion to the length and width of the boat used in such fishing in addition to the regular property ad valorem tax imposed by law on all personal property, is not only not a valid exercise of the police power, but it cannot be a valid exercise of the taxing power per se, because Section 1 of Article IX of the Constitution provides that the Legislature shall provide a uniform and equal rate of taxation based upon just valuation of all property, real and personal. Here the tax is not based upon any sort of valuation; it is based upon the size of the boat, regardless of value. It also amounts to double taxation.
In this connection we must not forget that the tax here sought to be imposed under Chapter 17917 is not upon theprivilege of using the boat for the purpose of fishing, but it is upon the boat itself, according to its size. There being no regulation contained in the Act, no exercise of police power, it is really a tax upon a certain class of property, not according to the value, but according to the length and width of the boat.
This Court has long recognized the right of the people *Page 499 of this State to fish in the navigable and tide waters of the State as a common-law right. Our people have always had the right to fish in such waters for their own enjoyment and personal use, not as a privilege, but as a right, Thus inex parte Powell, 70 Fla. 363, 70 So. 392, this Court, speaking through Mr. Justice WHITFIELD, among other things, said:
"Under the common law of England, the Crown in its sovereign capacity held the title to the beds of navigable or tide waters, including the shore, or the space between high and low water marks, in trust for the people of the realm who had rights of navigation, commerce, fishing, bathing and other easements allowed by law in the waters. This rule of the common law was applicable in the English colonies of America. * * * The rights of the people of the States in the navigable matters and the lands thereunder, including the shore or space between ordinary high and low water marks relate to navigation, commerce, fishing, bathing and other casements allowed by law. * * * Under the civil law of Spain all those owing allegiance to the Crown were equally entitled to the right to fish in the public waters of the Kingdom. * * * Under the American law, the United States held the public waters and the fish therein for the benefit of the people and such holding was by law transferred to the State upon its admission into the Union, subject to the powers granted to the United States as to interstate commerce navigation, etc., under the Federal Constitution, and the holding by the new State was the same as that of the original thirteen States."
So, ordinary hook and line fishing is a common law right and not a taxable privilege.
And we have always held that statutes in derogation of the common law must be strictly construed. But here the *Page 500 Legislature reinforces this principle, by embracing in the older statute an express exemption of boats used in hook and line or rod and reel fishing, and the later Act expressly provides that it shall not repeal any general or special law, but shall be construed as supplementary thereto.
The petiton for rehearing should in my opinion be granted.