State v. Holmes

• Decision Date: 21 May 1907
• Citation: 53 Fla. 226,44 So. 179
• Parties: STATE ex rel. HUBBARD v. HOLMES et al.
• Court: Florida Supreme Court

44 So. 179

53 Fla. 226

STATE ex rel. HUBBARD v. HOLMES et al.

Florida Supreme Court, Division B.

May 21, 1907

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Mandamus by the state, on the relation of John Hubbard, against J. N Holmes and others, county commissioners of Hillsborough county. Judgment for defendants, and relator brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where an alternative writ of mandamus is sued out against the county commissioners of a county to compel them to issue a license to a liquor dealer, under chapter 4747, p. 132, Laws 1899, and the county commissioners by demurrer challenge the constitutionality of the statute, and the case is heard and decided upon such demurrer in the circuit court, and no question is there made of the right of the county commissioners to raise such question, this court, in passing upon the judgment rendered, is not constrained to permit their right, for the first time, to be questioned here.

Sections 2, 4, c. 4747, pp. 133, 134, Laws 1899, do not confer judicial powers on the board of county commissioners and are not for that reason, in conflict with the Constitution. The powers conferred are simply to pass upon the personal qualifications and fitness of the applicant for a permit, to hear evidence upon those matters, and to determine whether the applicant is 21 years old, whether he is a sober law-abiding citizen, and of good character. In such case the judgment of the county commissioners is one which follows the application of the ordinary principles of human reasoning to the facts, and is not formed by the application of legal principles to the fact.

COUNSEL Lunsford & Dickenson, Geo. P. Raney, and P. O Knight, for plaintiff in error.

Donald C. McMullen and W. H. Ellis, Atty. Gen., for defendants in error.

OPINION

HOCKER J.

On November 12, 1906, at the instance of John Hubbard, the relator, an alternative writ of mandamus was issued from the circuit court of Hillsborough county, directed to the county commissioners of said county, alleging in substance that the relator, Hubbard, had made his application to the board of county commissioners of Hillsborough county, on the first Tuesday in October, 1906, for a permit to sell liquors wines, and beer in election district No. 28 in said county; that he had complied with the requirements of chapter 4747, p. 132, Laws 1899, and was entitled to a permit, and that on the first Tuesday in November, 1906, the county commissioners refused to grant the permit. The alternative writ recites facts which show compliance with the terms and conditions of said act. The county commissioners demurred to the alternative writ on the ground that chapter 4747, p. 132, laws 1899, is unconstitutional and void. Upon a hearing the circuit judge sustained the demurrer, holding that sections 2 and 4 of said act undertook to confer judicial powers upon the county commissioners, and was therefore not authorized by the Constitution, and without the provisions of those sections the Legislature would not have passed the act, and therefore the whole was unconstitutional and void. The alternative writ was quashed, and final judgment entered for the respondents. From this judgment a writ of error was sued out.

So far as the record shows the objection was not made in the court below, but it is contended here that the county commissioners cannot raise the question of the constitutionality of the statute as a ground for not performing the duty thereby enjoined, in a mandamus proceeding brought to enforce its performance. The case of County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 So. 471, 12 Am. St. Rep. 183, is relied on to support this contention. In this case the court decided that the duty imposed in that case was simply to receive and keep in their custody the returns, and to canvass the vote and make due returns of the same to the county commissioners, and that they had no official interest in the result. The doctrine that parties not personally interested cannot raise such a question is sustained by the authorities; but, in the cases of county commissioners and judicial, ministerial, and executive officers generally, it seems to have been more honored in the breach than the observance. In the very same volume, in the case of County Commissioners of Lake County v. State, 24 Fla. 263, 4 So. 795, this court permitted the county commissioners to raise the question of the constitutionality of certain sections of 'An act to create and establish the county of Lake from portions of Sumter and Orange,' and the court passed on the points thus raised. In the case of Holland v. State ex rel. Duval County, 23 Fla. 123, 1 So. 521, Holland, the sheriff of Duval county raised by demurrer to an alternative writ the question of the constitutionality of chapter 2090, p. 32, of the Laws of 1877, and the question raised was passed on by the court, although it does not appear that any personal interest of the sheriff was affected by the statute. In the case of State ex rel. Turner v. Hocker, 36 Fla. 358, 18 So. 767, which was a mandamus proceeding against a circuit judge, that judge raised the question of the constitutionality of a statute placing two counties in his circuit, and, although no personal interest of his was affected thereby, the question thus raised was decided by this court. See, also, State ex rel. Weeks v. Dampier (Fla.) 43 So. 422. In the case of State ex rel. Edwards v. County Commissioners of Sumter County, 22 Fla. 1, which was a mandamus proceeding against the county commissioners, it was held that such a proceeding could not be used to effect an illegal purpose. To the same effect, see State ex rel. Walker v. Stewart, 49 Fla. 259, 38 So. 600; State ex rel. Norman v. D'Alemberte, 30 Fla. 545, 11 So. 905. In the case of Marbury v. Madison, 1 Cranch (U. S. ) 137, 2 L.Ed. 60, the question of the constitutionality of a certain phase of the act of Congress to establish the judicial courts was apparently ralsed by the court itself, and this was a case in which a mandamus had been applied for against James Madison, the Secretary of State. The note to the case of State ex rel. New Orleans Canal & Banking Co. v. Heard (47 La. Ann. 1679, 18 So. 746) in 47 L. R. A. 512, contains a collection of cases on the subject under discussion. The annotator concludes that there is no theory which will reconcile the conflict in the decisions.

We do not feel called upon to go further into the discussion of duties which are merely ministerial, and of such as have other elements, and whether a distinction is to be drawn between them in regard to the defenses which may be made to a writ of mandamus by executive, administrative and merely ministerial officers. The county commissioners are sworn officers, who are required to take the oath prescribed in section 2, art. 16, of the Constitution, for all officers, and that oath obligates them to support, protect, and defend the Constitution of their state and to well and faithfully perform their duties. Under these circumstances it is not clear that the courts would be justified in holding they could not raise the question of the constitutionality of a statute which imposed upon them the performance of acts which from their view might seriously affect the interests and welfare of their constituents, though it might not appear that they themselves were personally affected thereby. The courts are cautious in dealing with the constitutionality of a statute, but it cannot be forgotten that the Constitution is a fundamental limitation upon the powers of legislation. As the objection to the right of the county commissioners to raise the question of the constitutionality of the act does not appear to have been made below, we will not further regard it here, and will deal with the question as presented by the record.

The two sections of the...