Coleman v. State Ex Rel. Race

• Decision Date: 19 January 1935
• Citation: 118 Fla. 201,159 So. 504
• Parties: COLEMAN, Sheriff v. STATE ex rel. RACE.
• Court: Florida Supreme Court

159 So. 504

118 Fla. 201

COLEMAN, Sheriff v. STATE ex rel. RACE.

Florida Supreme Court, Division B.

January 19, 1935

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Habeas corpus proceeding by the State, on the relation of R. J Race, against D. C. Coleman, Sheriff of Dade County. To review a judgment discharging the petitioner, the Sheriff brings error.

Reversed and remanded.

COUNSEL

Cary D. Landis, Atty. Gen., and H. E. Carter and J V. Keen, Asst. Attys. Gen., for plaintiff in error.

J. F Gordon, of Miami, and William Blount Myers, of Tallahassee, for appellee.

OPINION

BUFORD Justice.

Defendant in error, when being held in custody under a capias issued out of the criminal court of record in and for Dade county upon the filing of an information therein charging him in three counts with the offense of selling intoxicating liquor in that county without first having procured a license to engage in the business of a dealer in such intoxicating liquor, sued out writ of habeas corpus.

On hearing, petitioner was discharged.

The respondent sued out writ of error.

Section 3448, General Statutes of Florida 1906, as amended by chapter 6861, § 2, Acts 1915, was in effect December 31, 1918, and was as follows:

'Selling Liquor Without a License. Any person or persons, firm or association, that shall sell or cause to be sold, or keep for sale, any intoxicating liquors, wines or beer, without first paying the license required by law, shall, upon conviction, be fined any sum not more than $500, or be imprisoned in the county jail for not more than six months, or by both such fine and imprisonment as in the discretion of the Court. Sheriffs and deputy sheriffs, collectors and deputy collectors, and any police officer of any incorporated city or town, is authorized and empowered to enter any building where they have cause to suspect such liquors are kept for sale, without warrant, and to seize same and arrest the parties so engaged.'

In habeas corpus proceeding the burden is on the petitioner to show that he is unlawfully restrained of his liberty. It appears to us that petitioner entirely failed to carry such burden. The petition alleges:

'The said information above set forth and the arrest were under and by virtue of a certain section 3448 of the General Statutes of Florida of 1914.

'The Relator further represents unto the Court that he is restrained and deprived of his liberty by the Defendant in violation of the Constitution of the United States and of the Constitution of the State of Florida and without authority of law in that:

'(a) The said section 3448 of the General Statutes of Florida of 1914 is not in force and effect in this State and County for the following reasons:

'(AA) The said above named section was repealed by the vote of the people and the Legislature of the State of Florida and attempted to be revived and made a law of this State by joint resolution by the House of Representatives and the Senate of the State of Florida during the session of the Legislature of 1933. That the said act on the part of the Legislature was a direct violation of section 16, Article 3 of the Constitution of the State of Florida.

'(b) That the election held on November 6, 1934, to determine whether or not the sale of intoxicating liquors, wines and beers should be prohibited in Dade County was held in direct violation of the Constitution of the State of Florida and of the laws of the State of Florida in that;

'(aa) The law provides that; Elections under this Section shall be held within sixty days from the time of presenting said application, but if any such election should thereby take place within sixty days of any State or National election, or primary, it shall be held within sixty days after such State or National election or primary. That the local option election held in Dade County was on November 6, 1934, which was the same day as the National and State election.'

House Joint Resolution No. 83, which became a part of our State Constitution (article 19) on its adoption as such in the general election on November 6, 1934, amongst other things provides as follows:

'Section 3. Until changed by elections called under this Article, the status of all territory in the State of Florida as to whether the sale is permitted or prohibited shall be the same as it was on December 31, 1918, provided that at the general election in 1934 or at any time within two years after this Article becomes effective the board of county commissioners of any county shall, upon the application of five per cent. of the registered voters of the county, call and provide for an election to decide whether the sale shall be prohibited in such county, said election to be otherwise as provided in Article I hereof.'

We infer from the record that a local option election was probably held in Dade county on November 6, 1934. If so, the record fails to show that such election was so held as not to cause Dade county to become a county in which intoxicating liquor could be lawfully sold upon the approval and adoption of House Joint Resolution No. 83 as a part of the organic law of the state in the general election of November 6, 1934. Nor is there anything to show that the sale of intoxicating liquor was prohibited in Dade county on the 31st day of December, 1918.

Now as we construe the language of section 3 of article 19 above quoted, as now in force, it means that where a local option election was held on November 6, 1934, and the result of that election was in favor of the sale of intoxicating liquor in the county so voting, the adoption of the amendment made the sale of intoxicating liquors legally possible in such county so voting at such time in favor of such sale. While there was no statutory authority for the calling of such election at such time, the effect of the adoption of the proposed amendment as an integral part of the organic law was to give the territory affected by such election the status under the amended Constitution of 'wet' or 'dry' territory, in accordance with the result of such local option election.

The Constitution is the supreme law of the land and a self-executing constitutional provision requires no legislative action to put its terms into operation.

It is not needful for us to add here to what has already been so fully and well stated by Mr. Presiding Justice Ellis in the case of State v. Powell et al., 159 So. 508, in opinion filed at this term of the court with reference to the history of constitutional provisions, both national and state, in connection with the manufacture and sale of intoxicating liquors.

In the opinion above referred to the writer says:

'No elections in Leon County have been called under the new Amendment, therefore the status of Leon County as to whether the sale of intoxicating liquors is permitted or prohibited is that of a 'dry' County.

'As the new Amendment merely reinstated the old policy of the State under the Local Option Article of the Constitution of 1885 which only related to the matter of the sale of such liquors, and as the status of Leon County under the new Amendment is that of a 'dry' County, it remains to be determined what laws relating to intoxicating liquors were in effect on December 31, 1918, insofar as those laws relate to the shipment into Leon County from outside the State of intoxicating liquors for private and personal use and not for sale, and delivery by the carrier transporting the liquor, of such liquor to the rightful owner.'

So the controlling question for our determination is whether or not the provisions of section 3448, General Statutes 1906, as amended by chapter 6861, § 2, Acts 1915, and in effect on December 31, 1918, was revived by the adoption of the amendment to article 19 at the general election on November 6, 1934.

We must bear in mind that we are dealing with provisions of the Constitution and not with statutes. We are dealing with...