Mccreary v. State Ex Rel. Garrison

• Decision Date: 22 May 1936
• Citation: 124 Fla. 330,168 So. 422
• Parties: McCREARY, Chief of Pollice v. STATE ex rel. GARRISON.
• Court: Florida Supreme Court

168 So. 422

124 Fla. 330

McCREARY, Chief of Pollice v. STATE ex rel. GARRISON.

Florida Supreme Court, Division A.

May 22, 1936

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Habeas corpus proceedings by the State, on the relation of Wesley E. Garrison, agent of Welsey E. Garrison, Inc., against S.D. McCreary, Chief of Police of the City of Miami. To review a final order discharging the petitioner from custody, the Chief of Police brings error.

Affirmed.

COUNSEL J. W. Watson, Jr., Abe Aronovitz, and W. W. Charles, all of Miami, for plaintiff in error.

Hendricks & Hendricks, of Miami, for defendant in error.

OPINION

PER CURIAM.

This writ of error brings before us for review a final order in habeas corpus proceedings discharging the petitioner from custody. The judgment of the circuit judge is affirmed upon authority of McLeod v. Chase, 95 Fla. 736a, 116 So. 858, and Brown v. Watson, 116 Fla. 56, 156 So. 327; there having been no evidence introduced before the municipal court or before the circuit judge in the habeas corpus proceedings showing, or tending to show, that the ordinance in question had been violated by the petitioner.

Affirmed.

WHITFIELD, C.J., and BROWN and DAVIS, JJ., concur.

ELLIS, P.J., and TERRELL and BUFORD, JJ., concur in the opinion and judgment.

CONCURRING

DAVIC, Justice (concurring).

Where the constitutionality of the application of a particular statute or ordinance depends upon a consideration of the evidence, I think habeas corpus may be employed as it was used in this case, not as a review of the sufficiency of the evidence qua proof, but as a means of determining whether constitutional property rights are being adversely affected by the manner of enforcement of an ordinance as applied to the particular facts of the case before the court.

BUFORD, J., concurs.