Dresner v. City of Tallahassee, 31121
| Decision Date | 01 November 1961 |
| Docket Number | No. 31121,31121 |
| Citation | 134 So.2d 228 |
| Parties | Israel DRESNER, Austin M. Warner, Robert M. Brown, Petty D. McKinney, Martin Freedman, Robert J. Stone, Arthur L. Hardge, Wayne C. Hartmire, J. W. Collier, Jr., Ralph Lord Roy, Appellants, v. CITY OF TALLAHASSEE, Appellee. |
| Court | Florida Supreme Court |
Tobias Simon, Miami, Alfred I. Hopkins, Miami Beach, and Howard W. Dixon, Miami, for appellants
James Messer, Jr., City Atty., and Edward J. Hill, City Sol., Tallahassee, for appellee.
We have for consideration a motion to dismiss a direct appeal from the Municipal Court of the City of Tallahassee.
We must decide whether this Court has jurisdiction to consider the appeal.
The city charged that the appellants did 'unlawfully assemble * * * contrary to the laws and ordinances of said City in such cases made and provided, and against the peace and dignity of the said City of Tallahassee, Florida.' A trial in the municipal court culminated in a finding of guilt and a sentence to pay a fine with an alternative term in the city jail. At the outset of the trial the appellants moved to dismiss the complaint with the contention that Section 870.04, Florida Statutes, Chapter 61-237, Laws of Florida 1961, F.S.A., was being invalidly applied against them. The City Judge announced that 'the statute is not unconstitutional on its face.' Coming here directly from the municipal court appellants contend that the trial judge passed directly on the validity of a state statute and that we, therefore, have jurisdiction pursuant to Section 4, Article V, Florida Constitution, F.S.A. The appellee's motion to dismiss questions the jurisdiction of this Court to determine the matter on a direct appeal. This motion has been argued and is now here for disposition.
The appellants were charged with the violation of the municipal ordinances of the City of Tallahassee. Nowhere in the complaint were they charged with a violation of a state statute. A reference to Section 870.04, supra, as amended, will reveal that the statute condemns a riotous assembly and provides a penalty under Section 870.02, Florida Statutes, F.S.A. The offense described in the statute is a misdemeanor triable in the state courts. The statute does not even impliedly define a municipal offense. This distinction is important in determining our jurisdiction. It is perfectly clear that the municipal judge was not confronted by the necessity of passing directly on the validity of a state statute. The most that could be said would be that he was called upon to pass upon the validity of a municipal ordinance. In actuality, the record indicates that he was merely requested to decide that 'the statute' was invalid 'as applied to the appellants.' The real contention asserted before the trial judge questioned the application of the statute, rather than its fundamental validity.
This Court derives its appellate jurisdiction from Article V, Florida Constitution. By Section 4(2), Article V, supra, appeals from trial courts may be taken directly to this Court from certain specified types of judgments. Among these are 'final judgments or decrees directly passing upon the validity of a state statute * * * or construing a controlling provision of the Florida or federal constitution * * *.' We must look to this constitutional provision as the source of our jurisdiction to entertain the instant appeal.
It is clear that the trial judge, at most, was called upon to pass upon the validity of a municipal ordinance. This is so because the appellants were charged with a violation of the municipal ordinances, rather than with a violation of a state statute. We have long ago held under Section 4(2), Article V, supra, that this Court did not have the power to entertain a direct appeal from a judgment of a trial court which merely passes upon the validity of a municipal ordinance. For purposes of determining the jurisdiction of this Court, a municipal ordinance cannot be classified as a 'state statute.' Armstrong et al. v. City of Tampa, Fla.1958, 106 So.2d 407. While conceivably a municipal court could be...
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