... Furthermore, we have neither found nor been cited to any rule or regulation of the Department of Conservation either designating the river north of the causeway bridge as fresh water or defining fresh and salt water. See 3 Alabama Administrative Code, Part 220, Alabama Legislative Reference Service. A reading of the transcript of the appellants' trial reveals no specific testimony that there was such a rule or regulation of the Department of Conservation to that effect. The fact that it may have been the practice or custom of the Department of Conservation to treat the water north of the causeway bridge as fresh water is, as a matter of proof of an element of the particular offense charged and as a matter of constitutional law, utterly insignificant and without meaning. At trial, the prosecutor made no allegation, contention, or showing that the Department of Conservation, in the exercise of the authority vested in it by virtue of § 9-11-140, had enacted a rule or regulation defining fresh and salt water in general or in connection with the Blakeley River in particular. There was no showing that any such regulation had been passed in compliance with the due process requirements set out in the Alabama Administrative Procedure Act found in Ala.Code 1975, § 41-22-1 et seq. See Ex parte Vizzina, 533 So.2d 658, 660 and n. 1 at 660 (Ala.1988). Consequently, the prosecution was required to show that the appellants were fishing in fresh water as a matter of fact as an element of proof of the crime of fishing with illegal commercial gear.
The appellants' argument that the regulation of the Department of Conservation is unconstitutional because it does not define the terms fresh and salt water appears to have merit.
"It is also settled law that `In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law's enforcement.'...
"And a person is not required to speculate as to the meaning of a statute at the peril of his freedom. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 [1939]." Bolin v. State, 266 Ala. 256, 260, 96 So.2d 582, 585-86 (1957). There is a fundamental principle of statutory construction that "where there is nothing to indicate to the contrary, words in a statute will be give the meaning which is generally accepted in popular, everyday usage." Holloway v. State, 262 Ala. 437, 440, 79 So.2d 40, 42 (1955). Even the application of that principle results in confusion in this particular case because of the testimony that the river is considered to consist of fresh water on some occasions and salt water on others. This unconstitutional infirmity could have been precluded by the adoption of a regulation by the Department of Conservation in accordance with the Alabama Administrative Procedure Act specifically defining which waters will be considered fresh water and which will be considered salt water.Although the issues of the sufficiency of the evidence and the constitutionality of the regulation are intertwined, we need not answer the constitutionality question. "The rule is clear that the constitutional validity of a statute will not be considered unless essential to a disposition of the cause." Knox v. State, 365 So.2d 349 (Ala.Cr.App.1978). Each of the appellants' convictions for fishing illegal commercial gear must be reversed because the prosecution failed to prove whether they were fishing in fresh or salt water as a matter of fact.
Clopton's conviction in case number DC-90-3737 and White's conviction in case number DC-90-3741 for fishing with illegal commercial gear are reversed. Clopton's conviction in case number DC-90-3735 for commercial fishing without a license in fresh water is reversed. White's conviction in case number DC-90-3740 for failing to identify his fishing gear is reversed. Under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), those convictions are rendered.
REVERSED AND RENDERED.
All Judges concur.