Stephens v. Stickel

• Decision Date: 11 February 1941
• Citation: 200 So. 396,146 Fla. 104
• Parties: STEPHENS et al. v. STICKEL et al.
• Court: Florida Supreme Court

200 So. 396

146 Fla. 104

STEPHENS et al. v. STICKEL et al.

Florida Supreme Court

February 11, 1941

Rehearing Denied March 4, 1941.

En Banc.

Certiorari to Circuit Court, Brevard County; M. B. Smith, Judge.

Suit by C. A. Stephens and C. A. Stephens, Jr., against C. R Stickel, etc., and others for a temporary and permanent injunction against the enforcement of a city ordinance. From an order denying the application for injunctive relief, but not dismissing the bill of complaint, the plaintiffs appeal. The entry of appeal is treated as an application for an interlocutory writ of certiorari.

Writ of certiorari denied, and cause remanded for appropriate proceedings.

COUNSEL

John D. Shepard, of Cocoa, for appellants.

W. G Vaughn, of Melbourne, for appellees.

OPINION

WHITFIELD Justice.

A bill of complaint filed in the circuit court prayed for a temporary and permanent injunction against the enforcement of a city ordinance. The notice of hearing was 'for a temporary restraining order and injunction.' The order of the court denied the 'application for injunctive relief,' but did not dismiss the bill of complaint. The order should be treated as being interlocutory and not final in its nature, and should be reviewed here on interlocutory certiorari and not on an appeal. See Rule 34, Sup.Ct.Rules.

An appeal from the order was taken and an application has been made for a constitutional writ under section 5, Article V, of the Constitution, staying the enforcement of the ordinance pending the review of the order of the circuit court by this court. Such application for a constitutional writ was denied by this Court.

As the merits of the cause were argued by counsel for both parties on the application for a constitutional writ to stay pendente lite, the enforcement of the ordinance, the entry of appeal as taken will be treated here as an application for an interlocutory writ of certiorari under Supreme Court Rule 34. If upon consideration by this Court the interlocutory order denying the 'application for injunctive relief' is found to be erroneous, an interlocutory writ of certiorari under Rule 34 will be issued and the order quashed. If the interlocutory order is not erroneous, a writ of certiorari will be denied and the cause will be remanded to the circuit court.

The ordinance is as follows:

'An ordinance in the interest of public safety and welfare; declaring the standing or going upon certain street crossings or intersections, for the purpose of distributing handbills, pamphlets, dodgers, or other literature to the occupants of any automobile, truck, motorcycle or other motor vehicle at certain times or for any other purpose than that commonly accorded to the general traveling public to be against public safety and welfare; making unlawful the standing or going upon such street intersections or crossings for the purposes aforesaid or the distributing of handbills, pamphlets, dodgers or other literature to occupants of such motor vehicles, and providing a penalty for the violation thereof.

'Be It Ordained by the City Commission of the City of Melbourne, Florida,

'Section 1. That this ordinance be, and the same is hereby enacted in the interest of the public safety and welfare.

'Section 2. The standing or going upon the following portions of street intersections, and crossings in the City of Melbourne, Brevard County, Florida, for the purpose of distributing to the occupants of any automobile, truck, motorcycle, or other motor vehicle, handbills, pamphlets, dodgers or other literature, of or for any other purpose than that commonly accorded to the general traveling public is hereby declared to be against public safety and welfare:

'The respective intersections of Washington Avenue with Palmetto Avenue, Strawbridge Avenue, New Haven Avenue, Prospect Avenue, and the street entering Midway Tourist Colony from said Washington Avenue; also the respective intersections of Orange Avenue and Vernon Place with New Haven Avenue; the section of New Haven Avenue crossed by Florida East Coast Railway, and the corner of Melbourne Avenue commonly known as the Post Office Corner.

'Section 3. It shall be unlawful for any person or persons to stand or go upon that portion of the aforementioned street intersections and crossings, commonly used for vehicular or other motor traffic to distribute handbills, pamphlets, dodgers or other literature to the occupant of any automobile, truck, motorcycle or other motor vehicle while said motor vehicle is in motion or while the same is stopped at or near such street intersections and crossings, because of a traffic light, traffic signal, or traffic conditions, or to go thereupon for any other purpose than that commonly accorded to the general traveling public.

'Section 4. It shall be unlawful for any person or persons to distribute handbills, pamphlets, dodgers or other literature to the occupant of any automobile, truck, motorcycle or other motor vehicle while said motor vehicle is in motion, or while the same is stopped at or near such street intersections and crossings, because of a traffic light, traffic signal, or traffic conditions.

'Section 5. Any person or persons violating the provisions of this ordinance shall be punished by a fine not exceeding $200.00 or imprisonment not exceeding 60 days or by both such fine and imprisonment in the City jail, at the discretion of the Municipal Judge.

'Section 6. This ordinance shall go into effect upon its passage and publication as required by the Charter of the City of Melbourne.

'Claude Edge

'Chairman City Commission

'C. E. Shull

'City Clerk

'We, the undersigned, Chairman of the City Commission and City Clerk, respectively, of the city of Melbourne, Florida, do certify that the foregoing Ordinance was duly and regularly passed at a lawful meeting of the City Commission held on the 26th day of November A. D. 1940, and that we subscribed our names thereto to authenticate the same as required by law.

'Claude Edge

'(Seal)

'Chairman City Commission

'Nov. 29; Dec. 3.'

'C. E. Shull

'City Clerk

It is contended that the ordinance violates the following organic guarantees:

'* * * No laws shall be passed to restrain or abridge the...