Pounds v. Darling
| Decision Date | 21 January 1918 |
| Citation | 75 Fla. 125,77 So. 666 |
| Parties | POUNDS, Chief of Police v. DARLING. |
| Court | Florida Supreme Court |
Error to Circuit Court, Orange County; J. W. Perkins, Judge.
Habeas corpus by L. E. Darling against J. W. Pounds, as Chief of Police of the City of Orlando. From a judgment discharging the petitioner, defendant brings error. Affirmed.
Syllabus by the Court
The validity of a statute or city ordinance may be tested upon a writ of habeas corpus.
Habeas corpus will not lie to test the guilt or innocence of one charged with an offense under a valid act or ordinance, but the court will inquire into the facts to ascertain whether under the circumstances the act or ordinance is a valid exercise of legislative power.
To be valid, a city ordinance must be reasonable and not in conflict with any controlling provision or principle of law should be within the powers expressly or impliedly conferred and if any doubt as to the extent of a power attempted to be exercised by a municipality out of the usual range, or which may affect the commonlaw rights of a citizen, it is to be resolved against the municipality.
Nonnavigable bodies of water may be the subject of private ownership.
A city ordinance, which forbids any one to bathe in a lake lying wholly within the city limits from which the city's water supply is drawn, but which lake is the private property of persons whose lands border thereon and the city has acquired no rights to the water of the lake by purchase or eminent domain, is invalid as being equivalent to depriving persons who own the lake of their property without just compensation or due process of law.
COUNSEL Davis & Giles, of Orlando, for plaintiff in error.
Dickinson & Dickinson, of Sanford, for defendant in error.
This case comes here by writ of error to the judgment of the circuit court for Orange county, discharging the defendant in error, upon habeas corpus, from the custody of the plaintiff in error as chief of police of the city of Orlando.
Darling was arrested upon a warrant issued by the city clerk of the city of Orlando, which charged Darling with a violation of an ordinance of the city by bathing in Lake Concord. He was duly and regularly tried in the mayor's court of the city for the offense charged, was convicted, and sentenced to pay a fine of $50 or be confined in the city jail for a term of 30 days. He was after such conviction and sentence taken into custody of the chief of police of the city, and applied to the circuit court for his release on habeas corpus. The judge of the circuit court held the ordinance under which Darling was tried and convicted to be invalid, and ordered the prisoner to be discharged.
The petition for the writ of habeas corpus discloses the following facts: The city of Orlando is incorporated under a special act of the Legislature, and has the general powers of cities and towns incorporated under the general law; that located within the city is Lake Concord, which covers an area of about 40 acres, and ranges in depth from a 'few feet to 10 or 15 feet'; that the lake is not meandered and is owned by private parties who own the lots bordering thereon; that the petitioner owns a lot bordering on the lake, which lot extends several hundred feet into the lake; that in April, 1917, the city of Orlando by ordinance prohibited bathing in the lake, and at the same time granted to a private corporation, viz. Orlando Water & Light Company a right to draw water from the lake in order to supply the city, with which it had a contract, with water for municipal purposes; that neither the city nor the water company had taken the waters of the lake under any legal proceeding to subject them to the public use, nor had any compensation been allowed to the property owners for the waters so taken; that in July, 1917, the petitioner went in bathing in the lake on his own premises, was arrested for violating the city ordinance mentioned, tried in the municipal court of the city, convicted, and sentenced; that one McIntosh owns a lot bordering on the lake adjacent to petitioner's lot, and conducts a bathhouse thereon, charging a certain fee or compensation to every one who bathes in the water of the lake on his premises; that the city of Orland does not own any of the waters of the lake, nor any land bordering thereon; that for many years prior to the passage of the ordinance prohibiting bathing in the lake the people who owned lots bordering thereon had bathed and swum therein.
The petitioner contends that the ordinance of the city under which he was arrested and convicted is void because it is an attempt to take private property for public use without just compensation, and without due process of law, and thus violates both the federal and state Constitutions.
The plaintiff in error denies that proposition, and asserts that before that question can be considered the court will have to decide whether habeas corpus under the circumstances of this case is the proper way to present it.
In other words, the plaintiff in error contends that the 'reasons assigned for the invalidity of the ordinance is that in the particular case the petitioner owned the lot bordering on and extending into the lake, and that he did not leave his own and his neighbor's property, upon which he had been invited, a fact which might or might not be a defense in the particular case; but, even if a good defense, it does not render the ordinance invalid in all cases and under all circumstances'; that the defense having been interposed and the judgment having been rendered against petitioner, he should have taken his case to the circuit court by writ of error, and not by habeas corpus, for, says the plaintiff in error, the rule is well understood that habeas corpus cannot be made to take the place of a writ of error. It must be admitted, however, that if the petitioner had taken a writ of error with bill of exceptions to the judgment of the mayor's court, he could have in that case presented the question of the validity of the city ordinance, for he could have in his trial before the municipal court presented the same facts as were presented in his petition for habeas corpus. But habeas corpus will lie to test the validity of a statute or city ordinance. See Hardee v. Brown, 56 Fla. 377, 47 So. 834; Ex parte Sims, 40 Fla. 432, 25 So. 280; Ex parte Theisen, 30 Fla. 529, 11 So. 901, 32 Am. St. Rep. 36; Harper v. Galloway, 58 Fla. 255, 51 So. 226, 26 L. R. A. (N. S.) 794, 49 Ann. Cas. 235. If then the petitioner had attacked the validity of the ordinance in the municipal court, he would not have been precluded thereby from subsequently applying for a writ of habeas corpus to test the validity of the ordinance, because a judgment of conviction on a charge under a void act is void. See Ex parte Knight, 52 Fla. 144, 41 So. 786, 120 Am. St. Rep. 191. In such case the acts charged constitute no offense, and the court was without jurisdiction to pronounce sentence. See Ex parte Bailey, 39 Fla. 734, 23 So. 552; Porter v. State, 62 Fla. 79, 56 So. 406. The writ of habeas corpus is a writ of right, and is sometimes issued upon very informal application, as in the case of Ex parte Pells, 28 Fla. 67, 9 So. 833, where the court issued such a writ upon the receipt of a letter from a person in jail. See Crooms v. Schad, 51 Fla. 168, 40 So. 497.
If the petitioner did confine his defense in the municipal court to the fact that while bathing in the lake he did not leave his own premises, that circumstance should not pretesting him after conviction in that court from testing the validity of the ordinance upon habeas corpus. We do not agree with counsel for the plaintiff in error that the reasons assigned, in the petition, for the invalidity of the ordinance are the one fact that while bathing in the lake the petitioner did not leave his own or his neighbor's property. He distinctly alleges in the petition that 'Lake Concord and the water thereof is entirely owned by private parties, who own the lots bordering on said lake;' that the city does not own any of the water in the lake, nor does it own any lands adjoining the same. It is also alleged that the lake is nonnavigable, that neither the city nor the water company has undertaken to condemn the lake by any legal proceeding for public use, and that when bathing in the lake those who exercise that right were always properly appareled in bathing suits as is the usual custom at bathing places.
The question is clearly and definitely presented whether the city of Orlando has the power to prohibit by ordinance any person from bathing in Lake Concord, which is a nonnavigable lake within the city's limits, and owned by the persons whose lots border thereon, and who enjoy the rights of riparian owners, and in which the city has no property interest whatever; such ordinance being designed solely to prevent the possible pollution of the waters of the lake, which are being used by a private...
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