Sylvester v. Tindall

• Decision Date: 07 July 1944
• Citation: 154 Fla. 663,18 So.2d 892
• Parties: SYLVESTER v. TINDALL, Sheriff.
• Court: Florida Supreme Court

18 So.2d 892

154 Fla. 663

SYLVESTER v. TINDALL, Sheriff.

Florida Supreme Court

July 7, 1944

Application by Perry Sylvester for a writ of habeas corpus against Young Tindall, as Heriff of Osceola County. From a judgment remanding petitioner to sheriff's custody, petitioner appeals.

[Copyrighted Material Omitted]

Appeal from Circuit Court, Osceola County; Frank A. Smith judge.

George P. Garett, of Orlando, for appellant.

J. Tom Watson, Atty. Gen., and John C. Wynn, Asst. Atty. Gen., for appellee.

BROWN, Justice.

This case is before us on appeal from an order of the Circuit Court in habeas corpus proceedings remanding the appellant to the custody of the appellee, sheriff of Osceola County.

This case involves the question of whether or not the constitutional amendment of 1942, purporting to amend Article IV of the Constitution by adding thereto section 30, was lawfully voted on and adopted by the people. This amendment was proposed by the legislature in May of 1941, and, if lawfully adopted, created a commission to be known as the 'Game and Fresh Water Fish Commission,' and stated the purposes for which it was created and vested it with certain powers and duties.

Appellant also attacks the validity of Rules 3, 9 and 13 adopted by the commission, as well as the sufficiency of the evidence introduced before the Circuit Judge to show a violation of said rules. These questions were raised in the trial court and ruled upon adversely to contentions made by the appellant.

We do not think it proper or necessary for us to rule upon the question of the sufficiency of the evidence. It certainly cannot be said that there was an entire lack of evidence tending to prove the information, consisting of two counts, which had been filed by the prosecuting attorney of Osceola County. We might remark in passing that there was substantial evidence introducted before the Circuit Judge in support of the information. The general rule is that the object of the writ of habeas corpus is not to determine whether a person has committted a crime, or the justice or injustice of his detention on the merits, but to determine whether he is legally imprisoned or restrained of his liberty. The use of the writ of habeas corpus to test the sufficiency of the evidence upon which a charge may have been based is not sanctioned by this court; nor is that writ available to review the sufficiency of a substantive defense. State v. Vasquez, 49 Fla. 126, 38 So. 830; White v. Penton, 92 Fla 837, 110 So. 533; Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569, 17 Ann. Cas. 1112; Atkinson v. Poweldge, 123 Fla. 389, 161 So. 4; State ex rel. Williams v. Coleman, 131 Fla. 872, 180 So. 360; Shelton v. Coleman, 136 Fla. 625, 187 So. 266; Skipper v. Schumacher, 124 Fla. 384, 169 So. 58.

Appellant's first contention is that the ballot was insufficient to comply with section 1 of Art. XVII of the Constitution as to the manner in which a proposed amendment shall be submitted to the electorate of the State for approval or rejection. The ballot reads as follows:

No. 3

Constitutional Amendment

Article IV

To amend Article IV of the Florida Constitution by adding section 30 providing for conservation of birds, game, fur bearing animals and fresh water fish, creating a commission and conferring powers to administer laws for such purposes.

() For the Amendment

() Against the Amendment.

Section 1 of Art. XVII of our Constitution does not prescribe just how a constitutional amendment shall be submitted to the electorate. Nor does the constitution say anything about the form of the ballot. It does provide the manner or procedure by which the legislature may propose amendments, and it also provides that an amendment so proposed by the legislature shall be 'published in one newspaper in each county where a newspaper is published, for three months immediately preceding the next general election of Representatives, at which election the same shall be submitted to the electors of the State, for approval or rejection. If a majority of electors voting upon the amendments at such election shall adopt the amendments, the same shall become a part of the Constitution. The proposed amendments shall be so submitted as to enable the electors to vote on each amendment separately.'

It is not denied that the amendment here before us was published in each county for three months as provided by section 1 of Art. XVII, but it is contended that the form of the ballot was not sufficient to put the electorate on notice as to just what they were voting upon. We do have a statute, Sec. 99.16, F.S.1941, F.S.A., which provides that 'the substance' of each amendment shall be printed on the ballot, followed by the phrase 'For the amendment' and also by the phrase 'Against the amendment,' with sufficient blank space thereafter for the placing of the symbol 'X' to indicate the voter's choice, except that when voting machines are used the amendment shall be in the form prescribed in the provision of the law relating to the use of voting machines, as to which latter, see Section 100.01 et seq., F.S.1941, F.S.A. Furthermore, Section 99.17, F.S.1941, F.S.A., provides that whenever an amendment or amendments to the constitution are to be voted upon at any election, the County Commissioners of each county shall have such amendment or amendments printed in clear and legible type and a copy thereof conspicuously posted at each voting precinct in such county upon the day of the election, such printed amendments to the furnished to them by the Secretary of State.

We are inclined to the opinion that the form of the ballot pertaining to this particular amendment was sufficient to put the electorate on notice as to the amendment they were voting upon, especially in view of the three months publication of the amendment and the positing of a complete copy of it in each voting place. See Collier v. Gray, 116 Fla. 845, 157 So. 40, and 11 Am.Jur. 638, 639. But it is not really necessary for us to rule upon this question here.

While it is true that the procedure set forth in Section 1 of Art. XVII is mandatory and should be followed (Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann.Cas.1914B, 916; Gray v. Childs, 115 Fla. 816, 156 So. 274), this Court has recognized the almost universal rule that once an amendment is duly proposed and is actually published and submitted to a vote of the people and by them adopted without any question having been raised prior to the election as to the method by which the amendment gets before them, the effect of a favorable vote by the people is to cure defects in the form of the submission. It was because of the recognition of this rule in the case of West v. State, 50 Fla. 154, 39 So. 412, that Governor Gilchrist, in the case of Crawford v. Gilchrist, supra, obtained an injunction against the Secretary of State to prevent the latter's publication of an initiative and referendum proposal that was then being publishe, upon the ground that the legislature had not proposed the amendment in accordance with the constitutional provision. This question is very ably discussed in an opinion written for this Court by Mr. Justice Davis in the case of State ex rel. Landis v. Thompson, 120 Fla. 860, 163 So. 270. It has been held, however, by the Supreme Court of Alabama that a serious violation of the constitutional requirements for proposing an amendment to the constitution, such as the delegation by the legislature to the Governor of the power to call the election on the amendment and fix the date of the election, which was deemed contrary to the constitutional provision, was not cured by the adoption of the amendment by the people, and that therefore the amendment did not become a part of the constitution. This was an unusual case and resulted in a four to three decision, and all phases of this question were very carefully discussed in both the majority and minority opinions. See Johnson v. Craft, 205 Ala. 386, 87 So. 375. See also 12 C.J. 688 et seq.; 16 C.J.S., Constitutional Law, § 7. But in view of our own decisions, above cited, we are satisfied that if there was any irregularity in the form of the ballot with reference to the amendment now before us, it was not a serious one and was cured by the adoption of the amendment by the people at the General Election in November, 1942.

Appellant contends that the constitutional amendment, now Section 30 of Art. IV of the constitution, did not confer upon the Game and Fresh Water Fish Commission the power or authority to adopt rules or regulations, especially where such rules or regulations would conflict with existing local laws applicable to Osceola County, and that this lack of authority was not cured by the adoption of Chapter 21945, General Laws of 1943, which took effect June 5, 1943, F.S.A. §§ 372.79 to 379.84, because that statute was a general statute, and a general act will not be held to repeal a special or local act unless the general act is a general revision of the whole subject, or unless the two acts are so repugnant as to indicate the legislative intent that the general act should repeal the local or special act.

It appears that a local act was adopted by the legislature of 1941, Chapter 21449, which, subject to a referendum vote, forbade commercial fishing in the lakes of Osceola County, but at the general election on November 3, 1942, the vote was 805 against to 705 for the closing of the lakes of the county to commercial fishing. At the same section of the legislature a local act, Chapter 21450, Special Acts of 1941, was adopted which allowed commercial fishing in certain lakes in Osceola County, including Lake Kissimmee, under a license from the Board of County Commissioners, and that under this act...