State v. Parker

• Decision Date: 30 March 1909
• Citation: 57 Fla. 170,49 So. 124
• Parties: STATE ex rel. RUSSO v. PARKER et al., County Com'rs.
• Court: Florida Supreme Court

49 So. 124

57 Fla. 170

STATE ex rel. RUSSO v. PARKER et al., County Com'rs.

Florida Supreme Court

March 30, 1909

Headnotes Filed May 3, 1909.

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

Application by the State, on the relation of Giocomo Russo, for writ of mandamus to W. L. Parker and others, County Commissioners. Demurrer to writ sustained, and relator brings error. Affirmed.

Syllabus by the Court

SYLLABUS

If sections 3267 and 3268 of the General Statutes of 1906, the one making it a misdemeanor to carry or have in one's possession any pistol, or Winchester or other repeating rifle, without having a license from the county commissioners, and the other providing for the grant of such license by the commissioners, are not unconstitutional and void as being in conflict with section 20 of the Declaration of Rights in our organic law, then an answer by the commissioners to an alternative writ of mandamus instituted to coerce the granting of such a license, to the effect that the applicant for such license was unknown to them, and that the witnesses produced by him as to his good moral character were also unknown to them, and that they had not been made satisfied of the applicant's good moral character furnishes a conclusive defense to such mandamus, and the court in such a case is right in dismissing the mandamus proceeding. On the other hand, if said two sections of the law are unconstitutional and void, then mandamus will not lie to compel the performance of an act required to be performed by a void law.

Where a court can effectually and properly dispose of a case without passing upon the constitutionality of a statute involved, it is its duty to do so.

COUNSEL

H. P. Baya, for plaintiff in error.

Donald C. McMullen, for defendants in error.

OPINION

TAYLOR J.

The relator, Giocomo Russo, instituted mandamus in the ciruit court of Hillsborough county against the defendants in error as county commissioners of said county, to compel them to issue to him a permit to bear or carry on his person a pistol. The alternative writ alleges that he had complied with the provisions of section 3268 of the General Statutes of 1906 in applying for such permit, but the same had been refused.

The respondents answered the alternative writ, incorporating in said answer a demurrer to the writ. The answer alleges that it has been the custom and policy of the respondents as a board to refuse such permits unless the applicant was known to them to be a person of good moral character and that some reason existed for such person to carry a pistol, and that the relator, applicant here, was unknown to them, and that the only evidence of his good moral character that was present to the respondents was the affidavit of Lorenzo Fucarino and Nicolo Arcuri, both of whom were unknown to respondents, and that they had no reason to believe that it was necessary that said relator should carry a pistol. The demurrer contained in said answer was upon the grounds:

(1) That the provisions of the Constitution entitling the people to...