Theisen v. Mcdavid

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, J.
• Citation: Theisen v. Mcdavid, 34 Fla. 440, 16 So. 321 (Fla. 1894)
• Decision Date: 06 October 1894
• Parties: THEISEN v. McDAVID, City Marshal.

16 So. 321

34 Fla. 440

THEISEN v. McDAVID, City Marshal.

Florida Supreme Court

October 6, 1894

Error to circuit court, Escambia county; W. D. Barnes, Judge.

Application by C. Theisen against W. H. H. McDavid, city marshal, for release on habeas corpus. From a judgment of the circuit court refusing to discharge petitioner, he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. There is nothing in our constitution that prohibits the legislature from clothing our municipal governments with legislative power to prohibit and punish by ordinance any act made penal by the state laws, when perpetrated within municipal limits. And such an ordinance is not invalidated because it prescribes the same penalties as the state law for the commission or omission of the same act. Neither is it any objection to such an ordinance that the offender may be tried and punished for the same act under both the ordinance and the state law. A conviction or acquittal by the municipal courts under such an ordinance is no bar to a prosecution under the state law. Neither is such an ordinance invalid because the trial thereunder is without a jury.

2. Under the provisions of section 1, c. 3024, Laws March 8 1877 (section 673, Rev. St.), providing that our municipal governments shall have the power 'to pass all such ordinances and laws as may be expedient and necessary for the preservation of the public peace and morals,' held, that our municipalities are emplowered to enact ordinances prescribing penalties for the nonobservance of the Sabbath in the conduct of business pursuits on that day within their corporate limits.

3. A municipal ordinance prohibiting the carrying on of certain business pursuits within the city limits on Sunday, and prescribing penalties therefor, is not invalid because it excepts from its inhibition various business pursuits that are not excepted from the operation of the state law on the same subject.

4. A municipal ordinance prescribing penalties for the carrying on of business pursuits within the city limits on Sunday is not subject to the charge of unreasonable and invalidating discrimination, when it excepts from its operation all persons generally who belong to any of the excepted classes of occupations. The exception from the operation of the ordinance of certain classes of occupations, when all belonging to those classes are included in the exception does not render the ordinance obnoxious to the charge of unreasonable discrimination because all occupations of every class are not also included within the exception.

COUNSEL John C. Avery, for plaintiff in error.

J Emmet Wolfe, for defendant in error.

OPINION

TAYLOR, J.

Section 1, art. 1, c. 13, of the Code of Ordinances of the Municipality of Pensacola, adopted in May, 1889, provides as follows: 'It shall be unlawful on Sunday for any merchant or shopkeeper or other person to keep open store, or dispose of any wares, merchandise, goods or chattels, or sell or barter the same; provided, that in cases of emergency or necessity, they may dispose of the comforts and necessaries of life to customers, without keeping open doors. The foregoing section shall not be held to prohibit selling or keeping open store for the purpose of selling drugs, ice, fresh meats, breads, newspapers and periodicals, fresh vegetables, cigars and tobacco, ice-cream, soda-water, fish and oysters (without exposing the wares in doors or on the side-walk), nor to prohibit the selling of meals by restaurants or hotels.' For an alleged violation of this ordinance, by selling lager beer on Sunday, July 1, 1894, the plaintiff in error was arrested and held in custody by the defendant in error, as city marshal, under a warrant issued by the municipal authorities upon an affidavit charging the offense. The plaintiff in error sued out a writ of habeas corpus before the circuit court, assailing the ordinance for an infraction of which he had been arrested, urging that said ordinance was invalid, unconstitutional, and void. The circuit judge, after hearing the cause, rendered judgment refusing to discharge the plaintiff in error, and remanding him to the custody of the defendant in error, the city marshal. From this order he comes here by writ of error.

It is contended for the plaintiff in error that under no circumstances can the legislature constitutionally delegate to a municipality the power to punish by ordinance any act made punishable as a crime or misdemeanor against the state laws, and for which the offender may be informed against or indicted and tried in the state courts, and that the city ordinance in question here is invalid and void because the act it undertakes to punish as an offense against the laws of the municipality was made a criminal offense and punishable under the state laws (chapter 3146, approved March 11, 1879) in force at the time of the adoption of said ordinance, the pertinent provisions of which state law are as follows 'Sec. 2. No merchant or shopkeeper or other person shall keep open store, or dispose of any wares, merchandise, goods or chattels on the Sabbath day, or sell or barter the same; provided, that in cases of emergency or necessity they may dispose of the comforts and necessaries of life to customers without keeping open doors. Sec. 3. Any violation of this act shall be deemed a misdemeanor, and any person convicted thereof shall be subject to a fine of not less than twenty dollars, and not more than fifty dollars.' Rev. St. § 2639. The constitutional objection urged against the propriety of the delegation of such legislative power to municipal governments is that it subjects the offender to a second jeopardy and punishment for the same offense. Some courts have sustained this view, but the overwhelming weight of the authorities, with which our views accord, supports the contrary rule,--that there is no impropriety, from a constitutional standpoint, in clothing our municipal governments with legislative power to prohibit and punish by ordinance any act made penal by the state laws, when perpetrated within municipal limits, and that it is no objection to such an ordinance that it prescribes the same penalties as the state law for the commission or omission of the same act, and that the offender may be tried and punished for the same act under both the ordinance and the state law, and that a conviction or acquittal under the one is no bar to the prosecution under the other, and that it is no objection to the municipal ordinance that the trial thereunder is without a jury. In avoidance of the theory that such a status of the law subjects the offender to the constitutionally inhibited second jeopardy and punishment for the same offense, the question is assimilated to the dual trials and punishments--the one in the federal courts, the other in the state tribunals--that follow the same act when it infracts both a state law and congressional legislation. Instead of its resulting in two trials and punishments for the same offense, within the contemplation of the constitutional inhibition, it is regarded as two distinct offenses growing out of the same act,--the one being a transgression of the state law; the other, an infraction of the municipal law. A crime, as defined by Blackstone (4 Bl. Comm. 5), is an act committed or omitted in violation of a public law either forbidding or commanding it. Within the contemplation of the constitutional inhibition against dual jeopardy for the same offense, our municipal governments are regarded as separate and distinct bodies politic from the government of the state; so that the same act may be a violation of, and consequently a crime against, the laws of both governments, the criminal aspect of the act consisting of its violation of law, the offense, so far as the municipality is concerned, is complete, independent,...