Rollo v. Wiggins

• Decision Date: 09 January 1942
• Citation: 5 So.2d 458,149 Fla. 264
• Parties: ROLLO v. WIGGINS.
• Court: Florida Supreme Court

5 So.2d 458

149 Fla. 264

ROLLO v. WIGGINS.

Florida Supreme Court

January 9, 1942

T. Franklin West, of Milton, and Philip D. Beall, of Pensacola, for plaintiff in error.

Caldwell & Wigginton, of Milton, for defendant in error.

BUFORD, Justice.

Writ of error brings for review order quashing writ of prohibition and dismissing petition and rule to show cause theretofore entered in the cause.

The record shows that Elmer Rollo, being charged in five complaints in the Municipal Court of the Town of Milton involving alleged infraction of the ordinances of said Town and growing out of the difficulty between Rollo and one Perry, a night watchman of the Town, by affidavits made by Perry, furnished bond for his appearance in the municipal court.

Thereupon he filed suggestion in the Circuit Court of the First Judicial Circuit of Florida for writ of prohibition to be directed to J. T Wiggins as Mayor of the Town of Milton and Ex-Officio Judge of the Municipal Court of said Town, to restrain the said Wiggins as Mayor and Ex-Officio Judge of the Municipal Court of said Town from requiring the said Rollo to stand trial before him as Judge and, inter alia, alleged 'That according to the custom and practice of the municipal Court of the Town of Milton, both the Mayor of said town, the Mayor now being Honorable J. T. Wiggins, and the Town Marshall who is the arresting officer, and main prosecuting witness, in all cases and trials which are held by said municipal court, obtain fees which are paid by the defendants, in the event the defendant is convicted, in conformity with Ordinance #302, and Ordinance #317, copies of which are hereto attached, and prayed to be made a part hereof as if set out haec verba, which are marked petitioner's exhibits No. 6 and 7.

'That by the Statutes of Florida and by the general jurisprudence of Florida no person who is interested in the result of a cause shall sit or preside as Judge in any such cause; and that the compensation of the Mayor of the Town of Milton as to the trial of causes in the Mayor's Court is solely and only a fee of $1.00 for each case where a conviction is had, and in the event that no conviction is had no fee is paid, and it is the rule and the custom of said town to pay said fee only from funds collected from defendants who have been convicted in said court. That under the case of Tumey v. Ohio Supreme Court, U.S., 273 U.S. 510 71 L.Ed. page 749 , it is held that the Mayor of a city who can receive fees or costs in respect to cases only in which there is a conviction and same are paid by defendant if convicted is, as a matter of law, disqualified.'

The respondent filed his answer to the rule to show cause in which, inter alia, he said:

'That he admits the allegations contained in paragraphs 1 and 2 of the Petition, with the exception of subparagraph (c) of paragraph 1, which is denied.

'2. Answering paragraph 3, your respondent admits that the compensation paid to him for the trial of criminal cases in the Mayor's Court of the Town of Milton, Florida, is the sum of $1.00 in each case where a conviction is had, which compensation is paid out of the costs collected from the defendant. That he is without knowledge as to the remaining allegations contained in said paragraph 3 of the Petition.

'3. That he is without knowledge as to the allegations contained in paragraph 4 of the petition.

'4. In further reply to the Rule to Show Cause entered herein, your Respondent shows unto the Court that the office of Mayor of the Town of Milton and Judge of the Mayor's Court of said Town is an honorable one, sought after by public spirited citizens who are primarily interested in good government and in doing their part to preserve law and order within said Town; that the time consumed in properly discharging the duties of the office is given by the respondent without consideration for the nominal pecuniary benefits that may accrue to him as an incidental emolument of the office; that the salary and fees earned by and paid to the incumbent of this office, which averages between $20.00 and $25.00 per month, are so meager in amount as to discourage anyone from seeking the office as a means of earning a livelihood, as a result whereof said office is usually occupied by business and professional men of the Town of Milton, such as the attorney for the petitioner in the case, who occupied that high office for several terms, who are willing to sacrifice their time and efforts in the interest of the public weal that your defendant is a practicing attorney at law at the Bar of this Court and does not look to nor depend upon the compensation received by him as Judge of the Mayor's Court for a livelihood, and he has never consciously permitted the contingency of his fee to influence his decision in the trial of a criminal case, and will not do so in the future, but has honestly and conscientiously decided each case on its merits alone, in accordance with justice and the ordinances of the Town of Milton; that your Respondent in his official capacity is many times more interested in doing justice between persons accused in the Mayor's court of committing violations of the Town's ordinances, and society in general, than he is in the nominal and insignificant fee of $1.00 that will accrue to him in the event the defendant is found guilty and sentenced to pay the costs of the case. That by reason of the facts above stated your respondent alleges that the contingent possibility of him realizing a fee in the trial of the criminal charges now pending against the petitioner herein is not such as to constitute an interest in the case within the true meaning and spirit of the law relative to disqualification of judges and the possible pecuniary benefits that will accrue to your respondent in the event of conviction of the petitioner on the charges now pending against him in the Mayor's Court are such as to come clearly within the maxim 'de minimis non curat lex' enunciated in the case of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 .'

The defendant in error has stated the question for our determination to be:

'Does the fact that a municipal judge receives as his sole compensation for services a fee of only one dollar upon conviction of defendants found guilty of violating the ordinances of such municipality, but who receives no fee in the event of acquittal of such defendants, amount to such an interest in the outcome of the case as to constitute a disqualification within the spirit and letter of the law?'

The plaintiff in error relies upon the opinion and judgment of the Supreme Court of the United States in the case of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243, to sustain his position.

Section 9 of Article XVI of the Constitution of Florida provides:

'In all criminal cases prosecuted in the name of the State, when the defendant is insolvent or discharged, the legal costs and expenses, including the fees of officers, shall be paid by the counties where the crime is committed, under such regulations as shall be prescribed by law; and all fines and forfeitures collected under the penal laws of the State shall be paid into the county treasuries of the respective counties as a general county fund to be applied to such legal costs and expenses. (Amended, Joint Resolution 1, Acts 1893; adopted at general election, 1894).'

Section 3 of Chapter 16053, Acts of 1933, inter alia, provides:

'Section 3. Suggestion of Disqualification; Grounds; Proceedings On Suggestion And Effect: In any cause in any of the courts of this State any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counsellor of record in said cause by consanguinity or affinity within the third degree, of that said judge is a material witness or that said judge is a material witness said cause. Such suggestion shall be filed in the cause within thirty (30) days after the party filing the suggestion, or his attorney, or attorneys, of record, or either of them, learned of such disqualification, otherwise the ground, or grounds, of disqualification shall be taken and considered as waived. If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of the suggestion, the grounds of his disqualification, and declaring himself to be disqualified in said cause. If the truth of any such suggestion does not appear from the record in said cause, the judge may by order entered therein require the filing in the cause of affidavits touching the truth or falsity of such suggestion. If the judge shall find that the suggestion is true, he shall forthwith enter an order reciting the ground of his disqualification and declaring himself disqualified in the cause;' * * *

The record shows the following:

'1. There is now pending five causes instituted by J. D. Perry, in the Town Court of Milton, Florida, set for trial at 9 A.M. on Friday, the July 25th, 1941, which are as follows:

'(a) The cause founded upon the complaint of J. D. Perry in affidavit dated July 7, 1941, charging defendant did unlawfully take, steal and carry away one pistol of the value of $10.00, the property of J. D. Perry.

'(b) The cause founded upon affidavit of J. D. Perry, dated July 7, 1941,...