State v. Dowling

• Decision Date: 08 November 1926
• Citation: State v. Dowling, 92 Fla. 848, 110 So. 522 (Fla. 1926)
• Parties: STATE ex rel. LANZ v. DOWLING, Sheriff.
• Court: Florida Supreme Court

110 So. 522

92 Fla. 848

STATE ex rel. LANZ v. DOWLING, Sheriff.

Florida Supreme Court

November 08, 1926

En Banc.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Habeas corpus by the state, on the relation of Katie Lanz, against W. H. Dowling, as Sheriff of Duval County.The writ was quashed, and relator brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

As rule, meaning of 'due process of law' must be reached by gradual process of judicial inclusion and exclusion.The courts of this country have generally approved the doctrine that the ascertainment of the import of the phrase, 'due process of law,' must be reached by the gradual process of judicial inclusion and exclusion as the cases presented for decision shall require.

Statute authorized by inherent and reserved powers and legally enforced does not violate due process of law clause (Const U.S. Amend, 14;Const. Fla. Declaration of Rights, § 12).It may be safely asserted that if the act assailed was authorized and promulgated by the inherent and reserved powers of the state and was enforced with due regard to and observance of the rules established by our system of jurisprudence for the security of life, liberty, and property, it is not in conflict with the due process clause of the Constitution.

If statute denounces act not malum in se or infamous, without requiring knowledge or willfulness, proof of criminal or fraudulent intent is not necessary.The rule seems well settled that when a statute makes criminal an act not malum in se or infamous without requiring the act to be knowingly or willfully done, a criminal or fraudulent intent is not an element of the offense and need not be proven.

Immunity from imprisonment for debt does not shield from punishment those who violate penal laws; statute denouncing disposition of property subject to lien without written consent of lienor held not to violate prohibition of imprisonment for debt (Acts 1923, c. 9288;Const. Declaration of Rights, § 16).The immunity from imprisonment for debt provision of our Constitution was not intended to shield from punishment those who violate the penal laws of the state, but was designed to relieve from punishment honest debtors who were unable to fullfill their engagements, or who having become honestly indebted to another, are unable to pay as they promised though they have acted in good faith towards their creditors.

COUNSEL

George C. Bedell and Chester Bedell, both of Jacksonville, for plaintiff in error.

J. B Johnson, Atty. Gen., Perse L. Gaskins and Wm. M. Madison both of Jacksonville, and Shackleford & Brown, of Tampa, for defendant in error.

OPINION

TERRELL J.

In this caseKatie Lanz, the plaintiff in error, seeks relief by writ of habeas corpus from the charge of having disposed of certain personal property, to wit, two rings, which were at the time subject to a lien, without the written consent of the lienee, contrary to the provisions of chapter 9288, Acts of 1923, Laws of Florida.The circuit judge granted a motion to quash the writ, and remanded the petitioner, Katie Lanz, to the custody of the sheriff.Writ of error was taken to the judgment quashing the writ.

It is contended here that the court below erred in its order quashing the writ of habeas corpus, and in its order remanding the petitioner to the custody of the sheriff of Duval county.

In support of this contention plaintiff in error challenges the constitutional validity of chapter 9288, Acts of 1923, Laws of Florida, it being contended that said act is violative of the due process clause of the Fourteenth Amendment of the Constitution of the United States, and sections 12and16 of the Declaration of Rights of the Constitution of Florida, in that it deprives defendant of her liberty and property without due process of law, that it deprives her of her property without just compensation, and that it provides for conviction and imprisonment for debt when no fraud is shown.

The provisions of the federal and state Constitutions thus brought in question may be stated as follows:

(1) The 'due process clause' of section 1 of the Fourteenth Amendment to the Constitution of the United States:

'Nor shall any state deprive any person of life, liberty, or property, without due process of law.'

(2)Section 12 of the Declaration of Rights of the Constitution of the state of Florida:

'No person shall be subject to be twice put in jeopardy for the same offense, nor compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation.'

(3)Section 16 of the Declaration of Rights of the Constitution of the state of Florida:

'No person shall be imprisoned for debt except in cases of fraud.'

That part of chapter 9288, Acts of 1923, Laws of Florida, assailed as being violative of the foregoing constitutional provisions, is as follows:

'Whoever shall pledge, mortgage, sell, or otherwise dispose of any personal property to him belonging, or which shall be in his possession, and which shall be subject to any written lien, or which shall be subject to any statutory lien, whether written or not, or which shall be the subject of any written conditional sale contract under which the title is retained by the vendor, without the written consent of the person, firm, or corporation, holding such lien, or retaining such title; and whoever shall remove or cause to be removed beyond the limits of the county where such lien was created or such conditional sale contract was entered into, any such property, without the consent aforesaid, or shall hide, conceal or transfer, such property with intent to defeat, hinder or delay the enforcement of such lien, or the recovery of such property by the vendor, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding one year.'

It is first contended by plaintiff in error that the provisions of the act thus quoted are repugnant to the due process clause of the Fourteenth Amendment to the Constitution of the United States and section 12 of the Declaration of Rights of the Constitution of Florida, in that they hamper her in the free use, enjoyment, and disposal of her property.

The phrase, 'due process of law,' is a modification of the equivalent expression employed in Magna Charta, 'by the law of the land,' the modification having taken place or having been first observed in the enactments of Edward III for the protection of his subjects.In English law the two expressions were identical in meaning and were directed to the action of the king.Restraint against the king was accomplished when he was prevented from acting arbitrarily and was forced to act in accordance with laws duly enacted.The provision that no person should be deprived of life, liberty, or property except in pursuance of 'the law of the land' imposed no restraint or limitation on Parliament.If the English rule had been applied in this country to the phrase 'due process of law' as used in the Fifth and Fourteenth Amendments to the federal Constitution, its effect would have been only to limit the powers of state and federal courts and executives, but no limitation would have been imposed by it on legislative power.Den v. Hoboken Land & Imp. Co.,18 How. 272, 15 L.Ed. 372;Taylor's Due Process of Law, §§ 1 to 9; Law of American Const, (Burdick) 506.

There was very little notice taken of the due process clause in the Fifth Amendment during the first 75 years of our country's history, but when it was embraced in the Fourteenth Amendment it immediately became the basis for assault on state Legislation from every point of the compass.No provision of the fundamental law has been before the courts for interpretation so often.In one of its early adjudications (Davidson v. Board of Administrators of New Orleans96 U.S. 97, text 102, 24 L.Ed. 616), the Supreme Court of the United States held that no state could by its own legislation make anything it chooses due process of law, thus extending the English rule to the legislative department of the government in this country.In Hurtado v. People of California,110 U.S. 516, text 531, 4 S.Ct. 111, 119(28 L.Ed. 232), an early and very illuminating case on this point, the court said:

'In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights.They were limitations upon all the powers of government, legislative as well as executive and judicial.'

Frequently during the growth and development of the constitutional history of this country our courts have recognized the advantages to accrue from a comprehensive definition of the phrase 'due process of law,' but as often they have held that such a definition was impracticable, and have laid down the doctrine that the ascertainment of the import of such an important phrase in the Constitution should be reached by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be formed.Davidson v. Board of Administrators of New Orleans, supra.

And yet while the court has repeatedly indicated that it had no intention of announcing a comprehensive definition of the phrase 'due process of law,' it has in the following from Hurtado v. People of California, supra, given us the attributes of its nature and the principles that have from time to time guided the court in its 'gradual process of judicial inclusion and exclusion':

'Due process of...