Ex parte Francis

79 So. 753, 76 Fla. 304, 2 A.L.R. 1068, 1918 Fla. LEXIS 313

• Court: Supreme Court of Florida
• Decided: August 13, 1918
• Status: Published

Opinions

Taylor, J.

James. Francis, who is referred to herein as the relator, was arrested and deprived of his liberty under a capias issued by the Criminal Court of Record of Dade County from an information filed by the County Solicitor, which information charges in six separate counts as follows:

“1. Did unlawfully transport from the County of Monroe, State of Florida, into the County of Dade, State of Florida, which said County of Dade, State of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, certain intoxicating liquors, wines or beer, to-wit, two quarts of whiskey and four quarts of wine, for the personal use of said James Francis, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.

“2. And the said Fred W. Pine, County Solicitor for the County of Dade as aforesaid, prosecuting for the State of Florida in said County, under oath, further information makes that James Francis of the County of Dade and State of Florida, on the 29th day of September, in the year of our Lord One Thousand Nine Hundred and Seventeen, in the County and State aforesaid, did transport from the County of Monroe, State of Florida, into the County of Dade, State of Florida, which said County of Dade, State of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, certain intoxicating liquors, wines or beer, to-wit, two quarts of whiskey and four quarts of wine, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.

“3. And the said Fred W. Pine, County Solicitor for the County of Dade as aforesaid, prosecuting for the State of Florida in said County, under oath, further information makes that James Francis of the County of Dade and State of Florida, on the 29th day of September, in the year of our Lord one thousand nine hundred and seventeen, in the County and State aforesaid, did possess intoxicating liquor, wines or beer, to-wit, two quarts of whiskey and four quarts of wine, which said liquors were received by said James Francis subsequent to May 1st, A. D. 1917, within a thirty-day period, from a carrier in the County of Dade, State of Florida, which said County of Dade, State of Florida, had theretofore voted against tbe sale of intoxicating liquor, wines or beer, the said liquor so possessed being then and there intended for personal use, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.

“4. And the said Fred W. Pine, County Solicitor for the County of Dade as aforesaid, prosecuting for the State of Florida in said County, under oath, further information makes that James Francis of the County of Dade and State of Florida, on the 29th day of September, in the year of our Lord one thousand nine hundred and seventeen, in the County and State aforesaid, did possess intoxicating liquors, wine or beer, to-wit, two quarts of whiskey and four quarts of wine, which said liquors were received by said James Francis subsequent to May 1st, A. D. 1917, within a thirty-day period, from a carrier, in the County of Dade, State of Florida, which said County of Dade, State of Florida, had theretofore voted against the sale of intoxicating liquors, wines or beer, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.

“5. And the said Fred W. Pine, County Solicitor for the County of Dade as aforesaid, prosecuting for the State of Florida in said County, under oath, further information makes that James Francis of the County of Dade and State of Florida, on the 29th day of September, in the year of our Lord one thousand nine hundred and seventeen, in the County and State aforesaid, did personally transport from the County of Monroe, State of Florida, into the County of Dade, State of Florida, which said County of Dade, State of Florida, had theretofore voted against the sale of intoxicating liquor, wines or beer, for his personal use, certain intoxicating liquors, wines or beer, to-wit, two quarts of whiskey and four quarts of wine, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.

“6. And the said Fred W. Pine, County Solicitor for the County of Dade, as aforesaid, prosecuting for the State of Florida in said County, under oath, further information makes that James Francis of the County of Dade and State of Florida, on the 29th day of September, in the year of our Lord one thousand nine hundred and seventeen, in the County and State aforesaid, did personally transport from the County of Monroe, State of Florida, into the County of Dade, State of Florida,- which said County of Dade had theretofore voted against- the sale of intoxicating liquor, wines or beer, certain- intoxicating liquors, wines or beer, to-wit, two quarts..of whiskey and four quarts of wine, contrary to the Statute- in such case made and provided, and against the peace'and dignity of the State of Florida.” ■' ; ■

Thereupon the relator sued out a writ of habeas" corpus from the Circuit Court, the petition for the . writ omitting its formal parts, being as follows:

“5. That the said imprisonment, detention, confinement, deprivation and restraint are illegal and that the illegality thereof consists in this, to-wit:

“(a) That the information filed against the petitioner herein is based upon an act passed at the 1917 session of the Florida Legislature, Chapter 7284, Laws of 1917, the title to which begins as follows, to-wit:

‘An Act Prohibiting the Receipt of Intoxicating Liquors, Wines or Beer from a Common or other Carrier; Prohibiting the possession of such liquors hereafter received from a common or other carrier, and Prohibiting the Shipment and Personal Transportation of ■ such Liquors into Counties or Election Precincts in this State which have or may hereafter vote against the sale of such Liquors, etc.,’ and that said act is void, ineffectual and inoperative because it is in conflict with the provisions of the Constitution of the State of Florida in this, to-wit, said act only applies to counties which have voted against the sale of intoxicating liquors, and permits the possession thereof in quantities exceeding one quart in counties wherein the sale of intoxicating liquors is authorized, thereby discriminating between the citizens possessing intoxicating liquors in wet counties and those possessing intoxicating liquors in dry counties.

“(b) That said act is in conflict with the Constitution of the State of Florida, in this to-wit: that it makes it unlawful for a person to personally transport from without or within the State of Florida into dry counties exceeding the quantity of one quart of intoxicating liquors or wine during any period of thirty consecutive days, while it allows a person to transport into a wet county of the State of Florida more than one quart in thirty days, of intoxicating wine or beer.

“(c) That said act is in conflict with the provisions of the Florida Constitution in this to-wit: that it makes it unlawful for any person residing in a dry county to receive directly or indirectly from a common or other carrier, intoxicating liquors, wine or beer exceeding the quantity of one quart during any period of thirty consecutive days, while a person in a wet county in the State of Florida may receive more than one quart of intoxicating liquor or wine during any period of thirty consecutive days.

“(d) That the said statute is in conflict with the provisions of the Constitution of the State of Florida in this to-wit: That it makes it unlawful for any carrier or person to ship or transport into dry counties intoxicating liquors, wines or beers exceeding one quart of intoxicating liquor or wine during any period of thirty consecutive days, while a carrier or person is allowed to ship, or transport more than said amount of intoxicating liquors, wines or beer into a wet county.

“(e) That said law is unconstitutional in this to-wit: That it makes it unlawful for any person in a dry county of the State of Florida to receive, possess, ship or transport into said county for his personal use exceeding one quart of intoxicating liquor or wine during any period of thirty consecutive days, while it permits citizens of wet counties to receive, possess, ship or transport into such wet counties intoxicating liquor or wine in excess of said one quart during any period of thirty consecutive days.

“(f) That said law, as indicated in sub-heads a to e of this petition, is in direct conflict with Section 20 of Article 3 of the Constitution of the State of Florida, which prohibits the passage of special or local laws for the punishment of crime or misdemeanor.

“(g) That that portion of the Constitution of the State of Florida which provides for the holding of an election to determine whether or not intoxicating liquors, wines or beers shall be prohibited, does not authorize or empower the people of any community or municipality to call an election for the purpose of determining whether or not non-intoxicating liquors shall be received, possessed, shipped or transported into wet counties for personal use.

(h) That Sections 1, 2, 3, and 4 of said act are in violation of Sections 1 and 12 of the Declaration of Rights of the Constitution of the State of Florida, and in violation of Section 16 of Article 3 of the Constitution of the State of Florida, and in violation of Article 19 of the Constitution of the State of Florida.

“(i) That the people of Dade County, Florida, have voted against the sale of intoxicating liquors, but have not voted against the possession of intoxicating liquors for personal use.

“(j) That no election has been called or held in Dade County, Florida, since the passage of the Act above referred to, prohibiting the possession for personal use of intoxicating liquors in said Dade County.

“(k) That said act seeks to cancel and terminate the ownership of private individuals in intoxicating liquors without compensating them for the loss thereby sustained.

“(1) That said act is of such a nature and character that it cannot be sustained or upheld under the police powers of the State in that it is not applicable to the entire State of Florida or to all the people of the State of Florida.

“(m) That said act is void as an unjustified abridgement of the privileges and immunities of the citizens in a dry county.

“(n) The Legislature under the police powers has no right to forbid the possession of intoxicating liquors in a county voting against the sale of intoxicating liquors, when such liquors are possessed for persona] use.

“(o) The Legislature has no power under Article 19 to pass laws forbidding the possession of intoxicating liquors in counties voting against the sale thereof unless said liquor is possessed for the purpose of illegal sale.

“(p) The prohibition of the possession of more than one quart of intoxicating liquors or wines in any period of thirty consecutive days is unconstitutional because it is unreasonable and arbitrary.

“(q) The prohibition against the keeping, receiving or possessing of intoxicating liquors in se is not a legitimate exercise of the police power.

“(r) The seizure under the statute and the destruction thereunder are in contravention of the constitutional rights that one’s property shall not be taken without due process of law.

“(s) The said act is violative of the Fourteenth Amendment to the Constitution of the United States.

“(t) That said act is unreasonable because the mere possession of intoxicating liquor kept for one’s own use is not inherently injurious to the health, morals or safety of the public, and therefore such legislation prohibiting the keeping in excess of one quart is not a legitimate exercise of the police power.

“(u) That said act is a violation not only of the constitutional rights of the petitioner but of his inherent rights.

“(v) The said law is unconstitutional because in the absence of any unlawful intent to dispose thereof, it makes the possession of more than one quart of intoxicating liquor or wine in any period of thirty consecutive days, unlawful.”

At the hearing before the Circuit Judge, he made an order remanding the relator to the custody and dismissed his petition for the writ. For review of this judgment writ of error from this court was allowed and issued.

The case presents the question of the constitutionality of Chapter 7284, Laws approved May 1st, 1917.

In short, this act undertakes to prohibit under penalties the possession or ownership by any citizen in slang-called “dry” counties and territory during any period of thirty days exceeding one quart of spirituous or vinous liquors and six quarts of malt liquors for their own personal use or otherwise, while it permits., citizens in so-called “wet” counties and territory to- possess and own as much liquor of all kinds as they see fit. The act further undertakes to prohibit under penalties the receipt in such dry territory from any carrier, public or private, of any auch liquors exceeding such limited amount during any period of thirty days, and further prohibits- under penalties the carriage by any citizen personally into any such dry territory during any period of thirty days any such liquors exceeding such limited amount whether for his own personal use or otherwise; and the act further provides for the summary seizure, confiscation and destruction of any such liquors found in the possession of anyone in such dry territory exceeding such limited amount, whether possessed or owned for the personal use of the possessor or owner thereof or otherwise.

We have no hesitation in saying that the features of this act above mentioned are clearly violative of Section .1 of the Declaration of Rights of our Constitution, .that provides as follows: . ¡

“All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness.- and' obtaining safety.”

And it is also violative of Sections 1 and 2 of Article XIX of our Constitution.

That intoxicating liquor is property that is-the subject of private ownership, there is no question. Our Constitution, Article XIX, recognizes it as such; and indeed the act of our Legislature under discussion' recognizes it as such in permitting it to be brought into the dry territory in the limited quantities it provides, and in the unlimited quantities it permits to be brought into such territory for' druggist, hospitals, ministers for sacramental purposes, etc., and yet this act in the teeth of our Declaration of' Rights undertakes to prohibit one part of our citizenship who happen to reside in dry territory from harmlessly - acquiring, possessing and protecting this property for his own personal and private use.

In'Joyce oh Intoxicating Liquors, Sec. 79, it is said: “A constitutional provision that 'laws may be passed regulating or prohibiting the sale of intoxicating liquors is held' to impose a restraint upon the plenary and unrestricted power of a Legislature to deal with the subject of such liquors in any manner it chooses to. In such a case it is declared that the purpose and effect of the provision is to restrict and limit the legislative authority to the powers expressly granted therein, that is to the power to regulate and prohibit the sale} the rule being said to be simply an application of the maxim expressio unms est exclusio aMerius.”

Section 1 of Article XIX of our Constitution reserves to the people the right by their direct vote to prohibit the sale only of intoxicating liquors, not their ownership, possession or individual use by the citizen, and by the second Section of the Article the Legislature is expressly authorized and required to enact laws to carry out the provisions of Section one, that is to enforce the prohibition against the sale. And when the Legislature goes outside of the realm of law aimed at prohibiting the unlawful sale of such liquors, by inhibiting their private ownership, possession or personal use it transcends its authority under the Constitution and its act is void.

In 15 R. C. L., Sec. 19, it is said: “Generally speaking, it is the traffic and not the liquor itself which is subject to the police power; and the property right, the privilege of the individual to acquire and use liquors to satisfy his own personal tastes and. appetites should remain inviolate. It' has been held generally that the mere possession and use for such purposes are not inherently injurious to the health, morals, or safety of the public; and, therefore, that legislation prohibiting such acts is not a legitimate exercise of police power, but, on the contrary, is an abridgement of the privileges and immunities of the citizen without any legal justification, and, as such, void.” Ex parte Brown, 38 Tex. Cr. Rep. 295, 42 S. W. Rep. 554, 70 Am. St. Rep. 743; Town of Courtland v. Larson, 273 Ill. 602, 113 N. E. Rep. 51; Fears v. State, 102 Ga. 274, 29 S. E. Rep. 463; Henderson v. Heyward, 109 Ga. 373, 34 S. E. Rep. 590, 47 L. R. A. 366; Steele v. State, 19 Tex. App. 425; Stallworth v. State, 16 Tex. App. 345, Holley v. State, 14 Tex. App. 505.

We commend to our legislators especially the 9th and 10th headnotes to the case of Sullivan v. City of Oneida, 61 Ill. 242; Preston v. Drew, 33 Me. 558, 54 Am. Dec. 639; State v. Williams, 146 N. C. 618, 61 S. E. Rep. 61, 14 Ann. Cas, 562; Ninenger v. State, 25 Tex. App. 449; Titsworth v. State, 2 Okla. Cr. Rep. 268, 101 Pac. Rep. 288; Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S. W. Rep. 908, 48 L. R. A. (N. S.) 342; Commonwealth v. Campbell, 133 Ky. 50, 117 S. W. Rep. 383, 19 Ann. Cas. 159; City of Shreveport v. Hill, 134 La. 352, 64 South. Rep. 137, 39 Ann. Cas. 283; Eidge v. City of Bessemer, 164 Ala. 599, 51 South. Rep. 246; State of West Virginia v. Gilman, 33 W. Va. 146, 10 S. E. Rep. 283, 6 L. R. A. 847; State v. McIntyre, 139 N. C. 599, 52 S. E. Rep. 63; Ex parte Luera, 28 Cal. App. 185, 152 Pac. Rep. 738.

Since the information in this case charges that the defendant received in dry territory the forbidden quantity of liquor for his own personal use and not for sale or any other lawfully interdicted purpose, it follows that the defendant or relator is held in custody without authority of law, and should be and is hereby discharged from custody at the cost of the State.

Browne, O. J., and Ellis,, J., concur. Whitfield and West, J. J., dissent.