Mernaugh v. City of Orlando
| Decision Date | 13 December 1899 |
| Citation | 41 Fla. 433,27 So. 34 |
| Parties | MERNAUGH v. CITY OF ORLANDO. |
| Court | Florida Supreme Court |
N Mernaugh was convicted of violating an ordinance of the city of Orlando, and sentence was affirmed on appeal, and he brings certiorari. Judgment quashed.
Syllabus by the Court
1. When there are both special and general grants of power to municipal corporations to pass ordinances, those given under the special grant, as a general rule, can only be exercised in the cases and to the extent as respects those matters allowed by the charter or incorporating act; and the powers given under the general grant do not enlarge or annul those conferred by the special grant in respect to its subject-matters, but give authority to pass ordinances reasonable in their character, upon all other matters within the scope of the municipal authority not repugnant to the constitution and laws of the state.
2. The terms 'regulate' and 'restrain,' contained in section 696, Rev. St., providing that the city or town council shall have power to regulate and restrain all tippling, barrooms, and all places where beer, wine, or spirituous liquor of any kind is sold at retail or to be drank upon the premises where sold; to require all such places to be kept and used subject to such reasonable regulations as the council may prescribe; and to require all keepers of such places to procure from the city or town a license for keeping the same, under pains, penalties, and forfeitures to be prescribed,--do not include the power to prohibit the sale of such liquors in the limits of a city or town, but contemplate the existence and continuance of places for the sale of the same, and restrict the city or town to reasonable regulations and restraints in the conduct of such business.
3. The general powers conferred upon cities and towns by section 673, Rev. St., to pass ordinances that may be necessary or expedient to preserve the public peace and morals, for the suppression of riots and disorderly assemblies, and for the order and government of the city or town, construed in connection with sections 696 and 677, do not authorize the passage of an ordinance making the sale of intoxicating liquors, wines, or beer an offense, even when the county in which the city or town is situated has voted against the sale of such liquors at an election held in pursuance of article 19 of the constitution, and laws adopted to put the same in operation.
4. Section 696, Rev. St., authorizing cities and towns to license places for the sale of intoxicating liquors, is not repealed by a vote against the sale of the same in a county in which the city or town is situated, under article 19 of the constitution, but is only suspended during the time that the local option continues in force.
5. The supreme court has power to review and quash on the common-law writ of certiorari the proceedings of inferior tribunals when they proceed in a cause without jurisdiction.
COUNSEL Massey & Baumgarten and J. M. Cheney, for petitioner.
Wm. H Jewell, for respondent.
N Mernaugh, petitioner in this court for certiorari, was convicted and fined in the municipal court of the city of Orlando on a charge of violating an ordinance of the city, and appealed to the circuit court, where the sentence was affirmed.
The city ordinance was passed in May, 1899, and the portion alleged to have been violated, and alone involved in the case, provides that the sale of any intoxicating liquors, wines, or beer, when a municipal license is interdicted by law, is made an offense against the peace, good order, and morals of the city, and any person convicted thereof shall be punished by a fine of not less than $50 nor more than $500, or by confinement to labor for nor less than 30 days nor more than 60 days, or by both such fine and confinement to labor. The affidavit filed in the municipal court, and the warrant issued thereon, charged the petitioner with a violation of the provision of the ordinance stated, and upon that charge the trial was had. The proof in the municipal court showed a sale of a bottle of whisky by petitioner after the adoption of the ordinance; and it also showed, we concede for the purposes of this decision, that prior to the adoption of the ordinance there was a majority vote of the people of Orange county, in which the city of Orlando is situated, against the sale of intoxicating liquors, wines, or beer in the county, at an election held in pursuance of article 19 of the constitution, and the statutes adopted to put the same in operation. The defense made in the municipal court was that the provision of the ordinance in question was void because the city council had no authority to pass it; and in the circuit court the objection was made that the municipal court had no jurisdiction, for the reason stated, to proceed against the petitioner under the ordinance. After the affirmance of the municipal sentence on appeal in the circuit court, a writ of certiorari was obtained from this court to bring up the record before the circuit judge; and we are asked to quash the proceedings on the ground of want of jurisdiction in the inferior court, and the basence of any other remedy.
Counsel for the city insists that the ordinance is valid, and no objection is made to the remedy if the ordinance be found to be void.
The city of Orlando, as shown by the record, was organized under the general laws for the incorporation of cities and towns and whatever powers it has must be derived from that source. Section 673, Rev. St., provides as follows: 'The city or town council shall have power to pass all such ordinances and laws as may be expedient and necessary for the preservation of the public peace and morals, for the suppression of riots and disorderly assemblies, and for the order and government of the city or town, and to impose such pains, penalties and forfeitures as may be needed to carry the same into effect; provided, that such ordinances shall not be inconsistent with the constitution and laws of the United States or of this state; and, provided further, that for no one offense made punishable by the ordinances and laws of said city or town shall a fine of more than five hundred dollars be assessed, nor imprisonment for a period of time greater than sixty days.' Under this grant of power it is claimed for the city that the ordinance can be sustained. It may be conceded that, if there were no other grant of power or legislative regulations on the subject-matter of the ordinance, the city could, under the rule of construction of municipal grants obtaining in this state (Jacksonville Electric Light Co. v. City of Jacksonville, 36 Fla. 229, 18 So. 677, 30 L. R. A. 540; Ex parte Sims. 40 Fla. 432, 25 So. 280), enact it. The sale of whisky in a city tends to disturb the public peace and to produce disorder therein; and where it is not licensed, but forbidden, by state law, a city might well be permitted, under an unrestricted grant of power like that contained in section 673, Rev. St., standing alone, to punish whisky selling, as being against the peace and good order of the city. But there is another grant of power to cities found in the general incorporating act relating to the particular subject of whisky selling, contained in section 696, as follows: 'The city or town council shall have power to regulate and restrain all tippling, barrooms, and all places where beer, wine, or spirituous liquor of any kind is sold at retail, or to be drank upon the premises where sold, billiard saloons, ten-pin alleys, theatres or public halls, and all places used for public exhibitions, games, or amusements of any kind, and taverns, hotels and other houses for public entertainment; to require all such places to be kept and used subject to such reasonable regulations as the council may prescribe; to require all keepers of such places to procure from the city or town a license for keeping the same, under such pains, penalties and forfeitures as the council may prescribe.' The word 'regulate,' in this section, does not include the power to prohibit; nor does the word 'restrain,' in the connection in which it is used, confer it. Section 696, Rev. St., was compiled from the...
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... ... Daniel A. Simmons, judge ... COUNSEL ... John T ... G. Crawford, of Jacksonville, and Wm. B. Crawford, of ... Orlando, for appellant ... Thos ... B. Dowda, W. P. Dineen, and J. J. Canon, all of Palatka, for ... appellee ... OPINION ... particular the operation of the general powers conferred ... Porter v. Vinzant, 49 Fla. 213, 38 So. 607, 111 Am ... St. Rep. 93; Mernaugh v. City of Orlando, 41 Fla ... 433, 27 So. 34 ... Unless ... expressly or impliedly restrained by statute, a municipal ... ...
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