Benton v. State

• Decision Date: 02 July 1917
• Citation: 76 So. 341,74 Fla. 30
• Parties: BENTON v. STATE.
• Court: Florida Supreme Court

76 So. 341

74 Fla. 30

BENTON v. STATE.

Florida Supreme Court

July 2, 1917

Original petition by Cary T. Benton against the State of Florida for writ of certiorari to review a judgment of the circuit court affirming judgment of county court by which petitioner was convicted of an unlawful sale of intoxicating liquors. Writ quashed.

Syllabus by the Court

SYLLABUS

The common-law writ of certiorari cannot be made to serve the purpose of an appellate proceeding in the nature of a writ of error with a bill of exceptions.

The circuit court has final appellate jurisdiction in all civil and criminal cases arising in the county judge's court.

Under the Constitution of this state, the supervisory power of this court on a certiorari to a circuit court as an appellate court, where the court of original jurisdiction had jurisdiction of the parties and subject-matter and the appellate court acquired jurisdiction according to the forms prescribed by law, is restricted to an examination into the external validity of the proceedings had in the circuit court, and cannot be exercised to review the judgment of that court as to its intrinsic correctness, where the record discloses that a cause of action existed.

Upon a certiorari directed to the circuit court as an appellate court, this court will not question the correctness of the judgment of the circuit court upon its merits.

COUNSEL S. K. Gillis, of De Funiak Springs, for petitioner.

T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

This case is here upon certiorari to the circuit court of Walton county to review a judgment of that court affirming a judgment of the county judge's court of that county against the petitioner in a case in which he was convicted of the offense of illegally selling intoxicating liquors in a county which had voted against the sale of such liquors.

Under the Constitution of this state the circuit courts have final appellate jurisdiction in all civil and criminal cases arising in the county court or before the county judge. Article 5, § 11, Constitution of 1885.

The common-law writ of certiorari cannot be made to serve the purpose of an appellate proceeding in the nature of a writ of error with a bill of exceptions. While 'a certiorari is appellate in its character, in the sense that it involves a limited review of the proceedings of an inferior jurisdiction, it is original in the sense that the subject-matter of the suit or proceeding which it brings before the court are not here reinvestigated, tried, and determined upon the merits generally, as upon appeal at law or writ of error. Thus the Supreme Court of the United States speaks of such writs 'as writs to review the proceedings of inferior courts as a matter of original jurisdiction,' and showing errors of fact is only admissible to show want of jurisdiction or serious irregularity or illegality in procedure.' This is the language of Mr. Justice Westcott in the case of Basnet v. City of Jacksonville, 18 Fla. 523. As in that case, so in this, the writ was issued not as ancillary or auxiliary to our appellate jurisdiction, as it is when issued to supply a deficiency in the transcript of the record of a judgment from which an appeal is taken or to which a writ of error is sued out; nor is it issued to remove a case for trial here of which we have jurisdiction. The circuit court, not the Supreme Court, has under the Constitution final appellate jurisdiction of this case. The writ is a common-law writ of certiorari, upon which, as was said in the case above cited 'we neither affirm nor reverse a judgment, nor try the case upon its merits. We must either quash the proceeding of the judge of the circuit court, or quash the certiorari which brings it here.'

In the case of Edgerton v. Mayor of Green Cove Springs, 18 Fla. 528, this court said that a writ of certiorari 'does not serve the purpose of a writ of error or appeal with a bill of exceptions, as known to our practice, and if the circuit court has jurisdiction, and there is no irregularity or illegality in the procedure, the record of which is brought to this court, the certiorari must be quashed.' See, also, Deans v. Wilcoxon, 18 Fla. 531; Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; Seaboard Air Line R. Co. v. Ray, 52 Fla. 634, 42 So. 714; Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am. St. Rep. 214. In the latter case the application for the writ was denied and Mr. Justice Taylor, speaking for the court, referred to the case of Jacksonville, T. & K. W. Ry. Co. v. Boy, supra, and said:

'We held that, in order to review and quash the proceedings of an inferior tribunal upon the common-law writ of certiorari, the inferior tribunal must have proceeded in the cause without jurisdiction, or its procedure must have been clearly illegal, or unknown to the law, or essentially irregular, and that the writ is not permitted to serve the purpose of a writ of error or appeal with bill of exceptions, and that the granting of the writ was not a matter of right, but rested in the legal discretion of the court.'

See, also, Ragland v. State, 55 Fla. 157, 46 So. 724; State v. Live Oak, P. & G. R. Co., 70 Fla. 564, 70 So. 550.

A recent decision of this court seemingly extended the rule as to the scope of a common-law writ of certiorari by construing the words of Judge Mabry in Jacksonville, T. & K. W. Ry. v Boy, supra, to the effect that the writ lies where...