Stephens v. Anderson

• Citation: 79 So. 205,75 Fla. 577
• Parties: STEPHENS v. ANDERSON, Police Captain.
• Decision Date: 18 April 1918
• Court: Florida Supreme Court

79 So. 205

75 Fla. 577

STEPHENS v. ANDERSON, Police Captain.

Florida Supreme Court

April 18, 1918

On Petition for Rehearing, June 10, 1918.

Error to Court of Record, Escambia County; C. M. Jones, Judge.

Habeas corpus by Annie Stephens, on behalf of her daughter, Tessie Stephens, against A. J. Anderson, as Captain of the Police Department of Pensacola. Motion to quash return overruled and the daughter remanded to defendant's custody, and plaintiff brings error. Judgment affirmed.

Syllabus by the Court

SYLLABUS

This court does not take judicial notice of city ordinances, and where the ordinance attacked is not before the court, its validity will not be inquired into.

On Petition for Rehearing.

Chapter 4513, Laws of 1895, which was an act to provide for the creation of the city of Pensacola, and which contains the following provision: 'Section 11. The courts in this state shall take judicial cognizance of the ordinances of the city, and the printed copy officially published by the city may be read as evidence in any trial in which the same may be competent evidence without proof of the due passage and approval of said ordinance. Until the publication of the ordinances of the city, a certified copy from the comptroller's office of an ordinance may be read with the same effect as if it had been officially published'--merely requires the courts of this state to accept a certain medium of proof of the existence of the city's ordinances, and not to take judicial notice of the ultimate fact of the ordinances' existence.

COUNSEL John P. Stokes, of Pensacola, for plaintiff in error.

Jno. B Jones, of Pensacola, for defendant in error.

OPINION

ELLIS J.

Annie Stephens, mother of Tessie Stephens, applied to the judge of the court of record of Escambia county for a writ of habeas corpus in behalf of her daughter, who was in custody of A. J. Anderson as captain of the police department of Pensacola. The petition alleges that Tessie, who is 14 years of age, was arrested Saturday night, February 9, 1918, by an officer of the city police, and brought before the recorder of the city, upon the charge of violating section 373 of the City Code, by 'loitering in violation of the ordinances of said city'; that she was found guilty as charged, and sentenced to pay a fine and costs, and to remain in the custody of A. J. Anderson, as captain of the police department of the city, until the fine and costs were paid. The writ was issued, and Anderson made return that the girl was held in his custody by virtue of an order for her commitment made by the recorder of the police court of the city, in default of the payment of a fine imposed by judgment and sentence of the court, wherein she was tried and convicted upon affidavit and warrant, and sentenced to pay a fine, and in default of the payment thereof to be imprisoned in the city jail. Copies of the affidavit and warrant are attached to the return. The affidavit, omitting the venue, is as follows:

'Personally appeared before me Officer Williams, who, being duly sworn, deposeth and saith that Tessie Stephens, on the ninth day of February, 1918, in the state and county aforesaid, and within the corporate limits of the city of Pensacola, did violate the ordinances of said city, to wit: By violating section 373, City Code, to wit, loitering in violation of the ordinances of said city in such case made and provided.'

The petitioner moved to quash the return and discharge Tessie upon the ground that the ordinance under which the respondent seeks to detain Tessie in his custody is void, as being in conflict with the Constitutions of the United States and of the state of Florida. The motion to quash was overruled, and the girl was remanded to the custody of the captain of the police department of the city.

To this judgment a writ of error was allowed by the court and taken by Annie Stephens.

Neither a copy of the ordinance of the city which the girl was convicted of violating, nor that referred to in the motion to quash as the one 'under which the respondent seeks to detain' her, is contained in the record.

This court does not take judicial notice of city ordinances. It cannot, therefore, determine affirmatively that error has been committed by the court of record, and the judgment must be affirmed. Ferlita v. Jones, Chief of Police, 50 Fla. 218, 39 So. 593; Freeman v. State, 19 Fla. 552; State ex rel. Donnelly v. Teasdale, 21 Fla. 652.

The judgment is affirmed.

BROWNE, C.J., and TAYLOR, WHITFIELD, and WEST, JJ., concur.

On Petition for Rehearing.

PER CURIAM.

Counsel for the plaintiff in error petitioned the court for a rehearing in the above cause, upon the ground that this court failed to take 'judicial cognizance' of the ordinance of the city under which the petitioner was arrested, tried, convicted, and detained in custody; that this court 'overlooked the provisions' of section 11 chapter 4513, Acts of 1895, Laws of Florida, 'as adopted and continued in force by the provisions of section twelve (12), chapter 6746, Special Acts of 1913, Laws of Florida.'

The learned counsel is in error. The provisions of the two statutes to which he referred were not 'overlooked' by the court, notwithstanding the failure of counsel who sought to secure for his client the benefits of his interpretation of the provisions mentioned to exhibit the ordinance in the record.

The return of the officer to the writ of habeas corpus showed that the petitioner was held in his custody by virtue of an order for her commitment made by the recorder of the police court of the city in default of the payment of a fine imposed by the judgment and sentence of the said court, wherein she was tried and convicted upon a certain affidavit and warrant, copies of which were attached to the return. These copies showed that she was convicted of violating 'section 373, City Code.' The motion to quash the return contained two grounds, each of which was directed against the 'ordinance under which respondent seeks to detain' the petitioner.

Whether by this motion counsel sought to attack an ordinance that might have required the captain of police to detain one in custody who fails to pay a fine lawfully imposed for violating a city ordinance, or the commitment issued by the recorder, or the ordinance under which the petitioner was arrested, tried, and convicted, is not clear from the language of the motion. Neither ordinance, as stated in the former opinion, was contained in the record. The brief is confined to an attack upon the validity of the section of the City Code under which the petitioner was arrested, convicted and sentenced to pay a fine of $4.

Whether section 373 of the City Code was a by-law or ordinance lawfully passed under the former organization of the city (chapter 4513, Laws of 1895), or under the present organization (chapter 6746, Laws of 1913), does not appear from the record. The act of 1913 (chapter 6746) created for the city of Pensacola a commission form of government and abolished the aldermanic form of government provided for under chapter 4513, Laws of 1895. Under the former government the council had power to adopt ordinances; under the present form of government an ordinance is adopted in the following manner: A proposition is submitted to the commissioners by petition signed by a certain per cent. of the voters, whereupon the commissioners may within two weeks after the petition is filed pass the ordinance or call an election to decide whether the proposed ordinance shall be adopted or rejected, or if no action is taken by the commissioners within two weeks the proposition becomes a 'valid ordinance of said city.'

Section 12 of chapter 6746, Laws of 1913, provides that the city of Pensacola shall continue its existence as a body corporate...