Orr v. Quigg

• Court: Florida Supreme Court
• Writing for the Court: CHAPMAN, Justice.
• Citation: Orr v. Quigg, 135 Fla. 653, 185 So. 726 (Fla. 1938)
• Decision Date: 28 December 1938
• Parties: ORR v. QUIGG, Chief of Police.

185 So. 726

135 Fla. 653

ORR v. QUIGG, Chief of Police.

Florida Supreme Court

December 28, 1938

Rehearing Denied Jan. 25, 1939.

Original habeas corpus proceeding by William Orr against H. Leslie Quigg, Chief of Police of the City of Miami, State of Florida.

Petitioner remanded to the custody of the chief of police.

COUNSEL William J. Pruitt, of Miami, and Julius F Parker, of Tallahassee, for petitioner.

J. W Watson, Jr., of Miami, for respondent.

Herbert U. Feibelman and Louis M. Jepeway, both of Miami, amici curiae.

OPINION

CHAPMAN Justice.

It has been made to appear by petition for writ of habeas corpus that William Orr, the petitioner, was being unlawfully detained of his liberty by H. Leslie Quigg, as Chief of Police of the City of Miami, Florida. By the return as made by the Chief of Police, supra, to the writ of habeas corpus so issued by this Court, it was made to appear that the petitioner was being detained on two warrants drawn under Ordinance No. 319 and issued by Frank J. Kelly, City Clerk of the City of Miami. The warrants and City Council Ordinance No. 319 are, viz:

'In Municipal Court in and for the City of Miami State of Florida

'State of Florida, City of Miami, vs. William Orr.

'Before me the City Clerk in and for the City of Miami, Florida, personally came Ben B. Williams, who being duly sworn, says that on Sunday, the 10th day of July, A. D. 1938, at and in the City aforesaid, one William Orr did then and there unlawfully keep open store and conduct a certain retail grocery business in violation of Section 7650 of the Compiled General Laws of Florida, 1927, by selling wares, merchandise, goods or chattels, the said violation involving neither cases of emergency or necessity nor the disposition of the comforts and necessaries of life to customers without keeping open doors, and the said violation being contrary to and against City Council Ordinance No. 319, of said City of Miami in such case made and provided and against the peace and dignity of the City of Miami.

'Ben B. Williams

'Informant

'Sworn to and subscribed before me this 11th day of July, A. D. 1938.

'Frank J. Kelly, City Clerk.

'By R. C. Graham, Deputy City Clerk.'

'In the Municipal Court in and for the City of Miami, Dade County, Florida

'State of Florida, County of Dade, City of Miami. 36930

'In the name of the State of Florida, City of Miami, To the Chief of Police or Any Policeman of said City:

'Whereas Ben B. Williams has this day made oath before me that one William Orr on Sunday the 10th day of July A. D. 1938, at and in the City of Miami, aforesaid, did then and there unlawfully keep open store and conduct a certain retail grocery business in violation of Section 7650 of the Compiled General Laws of Florida, 1927, by selling wares, merchandise, goods or chattels, the said violation involving neither cases of emergency or necessity nor the disposition of the comforts and necessaries of life to customers without keeping open doors, and the said violation being contrary to and against City Council Ordinance No. 319, of said City of Miami in such case made and provided and against the peace and dignity of the City of Miami and

'Whereas, there is cause to believe that said complaint is well founded;

'These are, therefore, to command you forthwith to arrest the said William Orr and bring him before me to be dealt with according to law.

'Witness, the Honorable Cecil C. Curry, Judge, as also Frank J. Kelly, Clerk of said Court, and the seal of our said Court, at the City Hall at Miami aforesaid, this 11th day of July, A. D. 1938.

'Frank J. Kelly, City Clerk.

'By R. C. Graham Deputy Clerk.'

'Ordinance No. 319

'An Ordinance to Forbid and Punish any Act Within the City Limits Which Shall be Recognized by the Laws of Florida as a Misdemeanor.

'Be it ordained by the City Council of the City of Miami:

'Section 1. It shall be unlawful to commit, within the limits of the City of Miami, any act which is or shall be recognized by the laws of the State of Florida as a misdemeanor; and the commission of such acts is hereby forbidden.

'Section 2. Whosoever shall violate the provisions of this Ordinance upon conviction thereof, shall be punished by the same penalty as is therefor provided by the Laws of the State of Florida, but in no case shall such penalty exceed a fine of Two Hundred ($200.00) Dollars, or an imprisonment for more than ninety (90) days in the City Jail.

'Passed and Adopted this 20th day of January, 1920.

'J. T. Blackmon,

'President of Council.

'Attest: W. B. Moore

'City Clerk.

'Approved this 24th day of January, 1920.

'William P. Smith

'Mayor, City of Miami, Florida.'

It is contended that the Ordinance (a) is unconstitutional and void; (b) that it is vague, indefinite, and so ambiguous as to render it meaningless; (c) that it is unsound, unreasonable, and invalid. Likewise counsel for respondent submits that the first question for decision is: Is an Ordinance which has been duly passed and adopted by the City of Miami valid and constitutional which adopts the misdemeanor statutes of the State of Florida by reference to said misdemeanors without setting up in the Ordinance the statute itself?

Section 3(aa) of Chapter 10847, Special Acts of 1925, Charter of the City of Miami, provides:

'To make and enforce all ordinances, rules and regulations necessary or expedient for the purpose of carrying into effect the powers conferred by this charter by any general law, and to provide and impose suitable penalties for the violation of such ordinances, rules and regulations, or any of them, by fine not exceeding five hundred dollars or imprisonment at hard labor on the streets or other works of the city for a term not exceeding sixty days, or both.'

Likewise Section 84 of the Charter, supra, provides:

'All general laws of the State, applicable to municipal corporations, heretofore or hereafter enacted and which are not in conflict with the provisions of this charter or with ordinances or resolutions hereafter enacted by the commission pursuant to authority conferred by this charter, shall be applicable to said city; provided, however, that nothing contained in this charter shall be construed as limiting the power of the commission to enact any ordinance or resolution not in conflict with the constitution of the State or with the express provisions of this charter.'

Section one of Ordinance No. 319 makes it unlawful to commit any act within the limits of the City of Miami which shall be recognized by the Laws of Florida as a misdemeanor. This Ordinance is fully authorized by the Charter provisions 3(aa) and 84, supra. The legislature of Florida, under Section 8 of Article 8 of the Constitution of Florida, had the power to enact Chapter 10847, Special Laws, Acts of 1925, being the Charter of the City of Miami.

The same question was before this Court in the case of Wright v. Worth, 83 Fla. 204, 91 So. 87, when Ordinance No. 18 (a) of the City of Tampa provided by Section one thereof: 'It shall be unlawful for any person, persons, firm or corporation to have or keep in possession any intoxicating liquors, the possession of which is made unlawful by the act of Congress of the United States, or to offer the same for sale within the limits of the city of Tampa.' [page 88.] The Ordinance was upheld and in so doing this Court, in part, said:

'It is also contended that the city is without authority to make the possession of intoxicating liquors an offense punishable in the municipal court.

'While the manufacture, sale, and transportation of intoxicating liquors for beverage purposes have been expressly forbidden by federal organic law, the same organic law expressly confers upon the Congress and the several states 'concurrent power to enforce' the commanded prohibitions 'by appropriate legislation.' Any laws that are valid and appropriate to enforce the organic prohibitions are within the power of the...