Icard, Thomas F.

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University of Florida Levin College of Law

Florida Law Review Volume 5 Issue 2 Article 9 June 1952 Constitutional Law: State Taxation for Police Protection of Ocean Pier Thomas F. Icard Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Thomas F. Icard, Constitutional Law: State Taxation for Police Protection of Ocean Pier, 5 Fla. L. Rev. 199 (1952). Available at: https://scholarship.law.ufl.edu/flr/vol5/iss2/9 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 11:49:46 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Thomas F. Icard, Constitutional Law: State Taxation for Police Protection of OceanPier, 5 U. FLA. L. REV. 199 (1952).                                                  ALWD 7th ed.                                                                         Thomas F. Icard, Constitutional Law: State Taxation for Police Protection of OceanPier, 5 U. Fla. L. Rev. 199 (1952).                                                  APA 7th ed.                                                                          Icard, T. F. (1952). Constitutional law: state taxation for police protection ofocean pier. University of Florida Law Review, 5(2), 199-202.                         Chicago 17th ed.                                                                     Thomas F. Icard, "Constitutional Law: State Taxation for Police Protection of OceanPier," University of Florida Law Review 5, no. 2 (Summer 1952): 199-202              McGill Guide 9th ed.                                                                 Thomas F. Icard, "Constitutional Law: State Taxation for Police Protection of OceanPier" (1952) 5:2 U Fla L Rev 199.                                                    AGLC 4th ed.                                                                         Thomas F. Icard, 'Constitutional Law: State Taxation for Police Protection of OceanPier' (1952) 5(2) University of Florida Law Review 199                               MLA 9th ed.                                                                          Icard, Thomas F. "Constitutional Law: State Taxation for Police Protection of OceanPier." University of Florida Law Review, vol. 5, no. 2, Summer 1952, pp. 199-202.HeinOnline.                                                                          OSCOLA 4th ed.                                                                       Thomas F. Icard, 'Constitutional Law: State Taxation for Police Protection of OceanPier' (1952) 5 U Fla L Rev 199Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Icard: Constitutional Law: State Taxation for Police Protection of OceanPublished by UF Law Scholarship Repository, 1952CASE COMMENTSIn the Dean Milk case the Court held that a state cannot erectan economic barrier protecting a local industry from out-of-statecompetition, even in the exercise of its unquestioned power to pro-tect the health and safety of its people, unless there are no reasonablealternatives. The Court reasoned in the instant case that the clauseas to alternatives did not apply to the problem at hand because inter-state commerce itself "knocks on the local door," and only by regu-lating that knock can the interest of the home be protected. Virtualprohibition, however, is not the only means of regulating door-to-door merchandising. A more equitable solution would be to havehouseholders post "no soliciting" notices and provide that trespassin violation of the signs be punishable as a misdemeanor.16 This so-lution would come nearer to giving each group, local merchants,householders, and direct sellers, the protection to which it is entitled.ARcar E. CARPENr, JR.CONSTITUTIONAL LAW: STATE TAXATION FOR POLICEPROTECTION OF OCEAN PIERCarnasion v. Paul, 53 So.2d 304 (Fla. 1951)Appellants contested the authority of the coastal county of Vo-lusia to levy and collect a tax upon a steel and concrete pier extend-ing from the mainland to a point well beyond the low water markof the Atlantic Ocean. Basing their case upon United States v. Cali-fornia,' they contended that it had in practical effect shifted theownership dominion of the tidelands to the Federal Government ex-clusively. The lower court held the pier subject to county taxation anddismissed the bill. On appeal, HELD, the county has authority toexercise "police control" over the area and can accordingly tax it inreturn, so long as the action taken does not contravene the paramountauthority of the United States.loSee Jensen, supra note 8, at 280.1332 U.S. 19 (1947).2Florida Law Review, Vol. 5, Iss. 2 [1952], Art. 9https://scholarship.law.ufl.edu/flr/vol5/iss2/9UNIVERSITY OF FLORIDA LAW REVIEWNumerous comments2 have been written on the probable importof the Tidelands decision, but to date only two cases involving simi-lar circumstances have been litigated.3 In the Tidelands decision theCourt utilized the ambiguous phraseology, ". . . the Federal Govern-ment rather than the state has paramount rights in and power overthat belt, an incident to which is full dominion over the resources ofthe soil under that water area, including oil"; 4 and this concept wasfollowed substantially in United States v. Texas and United Statesv. Louisiana.5 It has been suggested 6 that the Court in the Tidelandscase has created an entirely new concept of property ownership ad-vanced in circumventing what were assumed to be well establishedlegal principles. Prior to the Tidelands decision it was apparentlysettled that if land on the coast be reclaimed from the sea, or if piersor wharves be extended into the sea, such land and structures area part of the territory of the state whose shores they adjoin. 7 Eachstate was said to own the beds of all tidewaters within its jurisdiction,unless they had been granted away., The appellant pier-owners inthe instant case were of the opinion that the Tidelands decision over-ruled these and other related property law principles, but such aninference cannot with any certainty be drawn from the context of thecase when carefully analyzed.In the Tidelands decision the Court subordinated the questionof ownership of bare legal title to the fact that the controverted areaswere, of necessity, subject to federal control and paramount rightbecause of its function as a national sovereignty and for purposes ofnational defense. These bases are subject to severe criticism, par-2E.g., Parker, Problems in Florida and Other Coastal States Caused by theCalifornia Tidelands Decision, I U. or FLA. L. REv. 44 (1948); Sullivan, The Tide-lands Question, 3 Wyo. L.J. 10 (1948); Note, 8 LA. L. REv. 578 (1948); 26 TEXASL. REv. 304 (1948); 36 VA. L. REv. 806 (1950); 5 WASH. & Laa L. REv. 85 (1948).aUnited States v. Texas, 339 U.S. 707 (1950); United States v. Louisiana, 339U.S. 699 (1950).4332 U.S. at 38.5See United States v. Texas, 339 U.S. 707, 712 (1950); United States v. Louisiana,339 U.S. 699, 704 (1950).6Sullivan, supra note 2, at 10.7Weber v. Board of Harbor Comm'rs, 18 Wall. 57 (U.S. 1873); Pollard v. Hagan,3 How. 212 (U.S. 1845); Commonwealth v. Roxbury, 75 Mass. (9 Gray) 451 (1857);Commonwealth v. Alger, 61 Mass. (7 Cush.) 53 (1851).RIWeber v. Board of Harbor Comm'rs, 18 Wall. 57 (U.S. 1873); Mumford v.Wardell, 6 Wall. 423 (U.S. 1867); Smith v. Maryland, 18 How. 71 (U.S. 1855).3Icard: Constitutional Law: State Taxation for Police Protection of OceanPublished by UF Law Scholarship Repository, 1952CASE COMMENTSticularly in view of the federal powers in time of war and by eminentdomain, as well as the constant cooperation of the states individuallyin past emergencies; but it nevertheless clearly emphasizes the doubtthat existed in the minds of the justices regarding the existence oftitle in the Federal Government to the fee in the controverted area.It should also be noted that the Government alleged in its originalaction against California, and likewise in the Texas and Louisianatidelands cases, that it was the "owner in fee simple" of the tidelands.9The reluctance of the United States Supreme Court to meet this issuesquarely gives further proof of the existence of that doubt.The Florida Supreme Court's holding in the instant case can befurther substantiated by the manner adopted in the Tidelands de-cision of distinguishing The Abby Dodge-o and Skiriotes v. Florida."In The Abby Dodge, the Court held that a federal statute regulatingthe landing of sponges at ports of the United States related to onlythose sponges taken outside Florida territory, thus narrowing thescope of the statute and impliedly admitting that limits to the exer-cise of federal power do exist. In the Skiriotes case a Florida statute,in the absence of conflicting federal legislation, was held constitu-tional as applied to sponge fisheries within the territorial waters ofFlorida. Appellant was charged with using the forbidden apparatusapproximately two marine leagues from the mean low water markon the west shore of Florida. The Florida Supreme Court held thatthis western boundary was fixed by the Florida Constitution at threemarine leagues from the shore;12 and that this was the same boundarydefined by the Constitution of 1868, to which Congress had by statutereferred in admitting Florida to representation.13 The TidelandsCourt distinguished the Abby Dodge case on the basis that it per-tained to the state's right to regulate and conserve, and not to itsright to use and deplete resources of national and international im-portance.14 In recognizing the Skiriotes case, the Court stated thatthe statute, so far as applied to conduct within the territorial waters9See United States v. California, 332 U.S. 19, 22 (1947); United States v. Texas,339 U.S. 707, 709 (1950); United States v. Louisiana, 339 U.S. 699, 701 (1950).10223 U.S. 166 (1912)."5135 U.S. 69 (1941).12Skiriotes v. State, 144 Fla. 220, 197 So. 736 (1940).1315 STAT. 70 (1868).14332 U.S. at 37.4Florida Law Review, Vol. 5, Iss. 2 [1952], Art. 9https://scholarship.law.ufl.edu/flr/vol5/iss2/9UNIVERSITY OF FLORIDA LAW REVIEWof Florida and in the absence of conflicting federal legislation, iswithin the police power of the state.15Immediately following the Tidelands decision some writers tookthe position that continued state regulation, at least to the extentpreviously permissible, would be difficult to reconcile with completefederal dominion.16 Certainly the police power remaining to thestates had to be reestablished. Toomer v. Witsell,17 however, reaf-firmed to the individual states their rights to continue the regulationand conservation of salt water fish and shellfish. Appellants hadurged that South Carolina had no jurisdiction over coastal watersbeyond the low water mark, basing their contention, as did appel-lants in the instant case, on the Tidelands decision. The Court,adopting Skiriotes v. Florida as analogous under such cir-cumstances, denied that United States v. California precludes allactivity by the states in the marginal sea, and held that in the absenceof positive conflict between state and federal regulation the statescan continue to exercise police power functions in the area, providedthat they observe the requirements of due process and do not placea burden on interstate commerce.Traditional property concepts support the contention that thepier in question, being permanently affixed to the submerged soil, isat law a part of it; and the argument then runs that the Tidelandsdecision in practical effect has vested ownership of the soil in theFederal Governments The fact remains, however, that the SupremeCourt has not as yet so held; indeed, any such argument would es-tablish in the Federal Government a substantial portion of Florida'sOverseas Highway to Key West. Furthermore Toomer v. Witsell 9upheld a state tax the proceeds of which were devoted to shrimp con-servation, definitely a police function. Similarly, Volusia County wasin the instant case furnishing protection under this same power. Suchprotection is not furnished free to other property owners, as a rule,and to the Supreme Court of Florida pier-owners are no exception.The instant decision represents in all probability the attitudethat the courts of every state having an interest in the tidelands area151d. at 38.16Woodley, Constitutional Law-Federal Rights to Tidelands, 8 LA. L. REv. 578(1948).37334 U.S. 385 (1948).IsSee United States v. California, 332 U.S. 19, 31 (1947).19334 U.S. 385 (1948).5Icard: Constitutional Law: State Taxation for Police Protection of OceanPublished by UF Law Scholarship Repository, 1952

Constitutional Law: State Taxation for Police Protection of Ocean Pier

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Constitutional Law: State Taxation for Police Protection of Ocean Pier

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