Ex Parte Pitts

• Decision Date: 29 January 1895
• Citation: 35 Fla. 149,17 So. 76
• Parties: EX parte PITTS.
• Court: Florida Supreme Court

17 So. 76

35 Fla. 149

EX parte PITTS.

Florida Supreme Court

January 29, 1895

Petition by Henry Pitts for a writ of habeas corpus. Writ denied.

Syllabus by the Court

SYLLABUS

1. On a petition for a habeas corpus alleging that the petitioner was unlawfully detained in custody under process issued by a county court, and that the court had no jurisdiction to issue the process, because the act of the legislature creating the court was in conflict with provisions of the constitution the constitutionality of the creation of said court is a proper subject of inquiry.

2. The sections of the act of 1893 (chapter 4221) organizing the county court for Polk county, defining its jurisdiction fixing the times for holding court, and regulating its practice in making orders and issuing processes necessary to the complet exercise of its jurisdiction, are not in conflict with section 18, art. 5, of the constitution, authorizing the legislature to organize county courts in such counties in the state as it may think proper. Whether the provisions of said act in reference to the fees and salaries of the judge and prosecuting attorney are in conflict with sections 20 and 21 of article 3, in reference to the enactment of special or local laws, not decided; but, if such conflict should exist the provisions mentioned can be entirely eliminated and the other provisions of the act carried into effect.

3. The county judge is by constitutional provision made the judge of the county court.

4. The return to a writ of habeas corpus, by express statutory enactment, is not to be taken to be conclusive as to the facts therein stated, but evidence may be received in contradiction thereof; and whenever, either in term time or vacation, it shall be inconvenient to procure the personal attendance of a witness, his affidavit, taken upon reasonable notice to the adverse party, may be received in evidence.

5. Ex parte affidavits filed with the submission of a case in the supreme court in habeas corpus proceedings, and undertaking to set forth matters of record in the office of the supervisor of registration and clerk of the circuit court of a county, that can be shown by duly-certified copies, are not proper or competent evidence of the facts therein stated.

COUNSEL J. L. Albritton and T. L. Wilson, for petitioner.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY, C.J.

In his petition for habeas corpus, Henry Pitts alleges that he is unlawfully detained in custody by the sheriff of Polk county under a capias issued out of the county court of said county on an information filed in said court on the 4th day of December, 1894, a copy of the information being attached as an exhibit to the petition. The information was filed in the county court of the county of Polk on the 4th day of December, 1894, by the prosecuting attorney for said county against the petitioner, and it is therein alleged that on the 5th day of April of that year an election was held in said county to determine whether or not the sale of intoxicating liquors, wines, or beer should be prohibited within the limits of said county; that said election was held under and by virtue of an order of the board of county commissioners of said county, made upon and in pursuance of an application of more than one-fourth of the registered voters of said county duly signed, and presented to said board at a regular meeting; that the clerk of the circuit court of said county performed all the legal duties required of him by law in the advertisement of said election, and the supervisor of registration of said county performed all duties required of him in the registration of all voters entitled to vote at said election and offering to register; that said election was called, conducted, and held pursuant to the constitution and general election laws of the state of Florida; and, being so called, conducted, and held, a majority of the votes legally cast at said election were against the sale of intoxicating liquors, wines, or beer, and in prohibition of the sale thereof within the limits of said county. Further, that petitioner, on the 22d day of May, 1894, within said county and state, did sell, and cause to be sold, certain intoxicating liquors, wines, and beers, to wit, alcohol, brandy, rum, gin, whisky, wine, lager beer, and rice beer, against the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida. The petition further alleges that the said county court had no jurisdiction to issue the said capias, because the act of the legislature approved May 30, 1893, c. 4221 (being an act to organize a county court in and for the county of Polk), is in violation of sections 20 and 21 of article 3 of the constitution of the state; that the judge of said court is disqualified to hold said office, because he is not now, and never has been, an attorney at law, as required by section 3, article 5, of the constitution; and that the said election held on the 5th day of April, 1894, was ordered and held without authority of law, in this, that no petition of one-fourth of the registered voters of said county was ever presented to the board of county commissioners praying for said election.

The return of the sheriff to the writ states that he holds the petitioner in custody by virtue of a capias issued out of the county court of Polk county, upon an information filed against him in said court on the 4th day of December, 1894; the capias and a certified copy of the information being made a part of the return.

Counsel for petitioner have filed some ex parte affidavits, and also a paper denying that the election alleged in the information and referred to in the sheriff's return was valid, for the reason, as stated, that one-fourth of the registered voters of said county did not sign the petition upon which said election was held, and praying that petitioner be discharged from further custody. The constitutionality or legality of the creation and organization of the county court for Polk county, it may be conceded, is a proper subject-matter of inquiry on the habeas corpus proceedings before us. If the petitioner is held by virtue of criminal process issuing out of a court having no constitutional or legal existence, he would be detained in custody without lawful authority, and should be discharged. Ex parte Bowen, 25 Fla. 214, 6 So. 65; Ex parte Prince, 27 Fla. 196, 9 So. 659. The attack made on the legal existence of the court is that the act of the legislature creating it (chapter 4221, Laws 1893) is in conflict with sections 20 and 21 of article 3 of the constitution of 1885. It is expressly provided by section 18 of article 5 of the constitution that 'the legislature may organize, in such counties as it may think proper, county courts, which shall have jurisdiction of all cases at law in which the demand or value of the property involved shall not exceed five hundred dollars; of proceedings relating to the forcible entry or unlawful detention of lands and tenements, and of misdemeanors, and final appellate jurisdiction in civil cases arising in the courts of justices of the peace. The trial of such appeals may be de novo at the option of appellant. The county judge shall be the judge of said court.' The sections of the act (chapter 4221) organizing the county court for Polk county, defining its jurisdiction, fixing the times for holding court, and regulating its practice in making orders and issuing processes necessary to the complete exercise of its jurisdiction according to the practice of the circuit court in like cases, not otherwise prescribed by chapter 3730, Laws Fla. 1887, prescribing the rules of pleading and practice in the county courts of the several counties of this state in civil and criminal cases, are clearly not in...