Ex Parte Francis

• Decision Date: 13 August 1918
• Citation: 76 Fla. 304,79 So. 753
• Parties: Ex parte FRANCIS.
• Court: Florida Supreme Court

79 So. 753

76 Fla. 304

Ex parte FRANCIS.

Florida Supreme Court

August 13, 1918

Rehearing Denied Oct. 11, 1918.

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Application of James Francis for writ of habeas corpus. Writ denied, and relator brings error. Relator discharged.

Whitfield and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

An information charging in six separate counts that the defendant:

(1) Did unlawfully transport from a county in this state where the sale of intoxicating liquors is lawful, into a county where such sales were prohibited by an election held to decide such question of prohibition, two quarts of whisky and four quarts of wine intended for the personal use of the defendant.

(2) The second count is a duplicate of the first count, except that it omits the allegation that the liquors transported were intended for the personal use of the defendant.

(3) That the defendant in said county where the sale of such intoxicating liquors had been prohibited by an election held to establish prohibition therein did possess two quarts of whisky and four quarts of wine, that were received by him from a carrier within a 30-day period; the said liquors so possessed being then and there intended for the defendant's personal use.

(4) The fourth count is a duplicate of the third count, except that it omits the allegation that the liquors so possessed were intended for the personal use of the defendant.

(5) That the defendant did personally transport into said prohibition territory for his own personal use two quarts of whisky and four quarts of wine.

(6) The sixth count is a duplicate of the fifth count, except that the allegation that the liquors transported were for the defendant's own use is omitted.

Held to charge no offense in any count thereof under any valid law of this state. Held, further that chapter 7284, Laws approved May 1, 1917, undertaking to penalize the acts charged against the defendant in said information, is unconstitutional and void.

Intoxicating liquor is 'property that is the subject of private ownership' as such, and the Legislature has no authority to prohibit its ownership, possession, transportation, or personal use by the citizen either in a prohibition county or a county where prohibition is not established, unless in either of said counties it is shown that its possession is intended for the illicit sale thereof.

COUNSEL Atkinson & Burdine, Bart A. Riley, and Taylor &amp Taylor, all of Miami, for plaintiff in error.

Van C Swearingen, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen for the State.

OPINION

TAYLOR J.

James Francis, who is referred to herein as the relator, was arrested and deprived of his liberty under a capias issued by the criminal court of record of Dade county from an information filed by the county solicitor, which information charges in six separate counts as follows:

'(1) Did unlawfuly transport from the county of Monroe, state of Florida, into the county of Dade, state of Florida, which said county of Dade, state of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, certain intoxicating liquors, wines or beer, to wit, two quarts of whisky and four quarts of wine, for the personal use of said James Francis, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'(2) And the said Fred W. Pine, county solicitor for the county of Dade as aforesaid, prosecuting for the state of Florida in said county, under oath, further information makes that James Francis of the county of Dade and state of Florida, on the 29th day of September in the year of our Lord 1917, in the county and state aforesaid, did transport from the county of Monroe, state of Florida, into the county of Dade, state of Florida, which said county of Dade, state of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, certain intoxicating liquors, wines or beer, to wit, two quarts of whisky and four quarts of wine, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'(3) And the said Fred W. Pine, county solicitor for the county of Dade as aforesaid, prosecuting for the state of Florida in said county, under oath, further information makes that James Francis of the county of Dade and state of Florida, on the 29th day of September in the year of our Lord 1917, in the county and state aforesaid, did possess intoxicating liquor, wines or beer, to wit, two quarts of whisky and four quarts of wine, which said liquors were received by said James Francis subsequent to May 1, A. D. 1917, within a 30-day period, from a carrier in the county of Dade, state of Florida, which said county of Dade, state of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, the said liquor so possessed being then and there intended for personal use, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'(4) And the said Fred W. Pine, county solicitor for the county of Dade as aforesaid, prosecuting for the state of Florida in said county, under oath, further information makes that James Francis of the county of Dade and state of Florida, on the 29th day of September in the year of our Lord 1917, in the county and state aforesaid, did possess intoxicating liquors, wine or beer, to wit, two quarts of whisky and four quarts of wine, which said liquors were received by said James Francis subsequent to May 1, A. D. 1917, within a 30-day period, from a carrier in the county of Dade, state of Florida, which said county of Dade, state of Florida, had theretofore voted against the sale of intoxicating liquors, wines or beer, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'(5) And the said Fred W. Pine, county solicitor for the county of Dade as aforesaid, prosecuting for the state of Florida in said county, under oath, further information makes that James Francis of the county of Dade and state of Florida, on the 29th day of September in the year of our Lord 1917, in the county and state aforesaid, did personally transport from the county of Monroe, state of Florida, into the county of Dade, state of Florida, which said county of Dade, state of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, for his personal use, certain intoxicating liquors, wines or beer, to wit, two quarts of whisky and four quarts of wine, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.

'(6) And the said Fred W. Pine, county solicitor for the county of Dade as aforesaid, prosecuting for the state of Florida in said county, under oath, further information makes that James Francis of the county of Dade and state of Florida, on the 29th day of September in the year of our Lord 1917, in the county and state aforesaid, did personally transport from the county of Monroe, state of Florida, into the county of Dade, state of Florida, which said county of Dade had theretofore voted against the sale of intoxicating liquor, wines or beer, certain intoxicating liquors, wines or beer, to wit, two quarts of whisky and four quarts of wine, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Florida.'

Thereupon the relator sued out a writ of habeas corpus from the circuit court; the petition for the writ, omitting its formal parts, being as follows:

'(5) That the said imprisonment, detention, confinement, deprivation and restraint are illegal, and that the illegality thereof consists in this, to wit:

'(a) That the information filed against the petitioner herein is based upon an act passed at the 1917 session of the Florida Legislature, chapter 7284, Laws of 1917, the title to which begins as follows, to wit:

"An act prohibiting the receipt of intoxicating liquors, wines, or beer from a common or other carrier; prohibiting the possession of such liquors hereafter received from a common or other carrier, and prohibiting the shipment and personal transportation of such liquors into counties or election precincts in this state which have or may hereafter vote against the sale of such liquors, etc.,' and that said act is void, ineffectual and inoperative because it is in conflict with the provisions of the Constitution of the State of Florida in this, to wit, said act only applies to counties which have voted against the sale of intoxicating liquors, and permits the possession thereof in quantities exceeding one quart in counties wherein the sale of intoxicating liquors is authorized, thereby discriminating between the citizens possessing intoxicating liquors in wet counties and those possessing intoxicating liquors in dry counties.

'(b) That said act is in conflict with the Constitution of the state of Florida in this, to wit: That it makes it unlawful for a person to personally transport from without or within the state of Florida into dry counties exceeding the quantity of one quart of intoxicating liquors or wine during any period of 30 consecutive days, while it allows a person to transport into a wet county of the state of Florida more than one quart in 30 days, of intoxicating wine or beer.

'(c) That said act is in conflict with the provisions of the Florida Constitution in this, to wit: That it makes it unlawful for any person residing in a dry county to receive directly or indirectly from a common or other carrier, intoxicating

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