Yoo Kun Wha v. Kelly

154 So. 2d 161
CourtSupreme Court of Florida
DecidedMarch 27, 1963
Docket32216
StatusPublished
Cited by9 cases

This text of 154 So. 2d 161 (Yoo Kun Wha v. Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yoo Kun Wha v. Kelly, 154 So. 2d 161 (Fla. 1963).

Opinion

154 So.2d 161 (1963)

YOO KUN WHA, also known as Kun Wha Yoo, also known as Fred Thompson, Petitioner,
v.
Thomas J. KELLY, the Sheriff of Dade County, Florida, Respondent.

No. 32216.

Supreme Court of Florida.

March 27, 1963.
Petition for Clarification and Modification Denied June 25, 1963.

*162 Perry Nichols, Miami, for petitioner.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.

SEBRING, Justice (Ret'd).

The petitioner was indicted in Dade County by a grand jury summoned and empanelled in accordance with the provisions of Chapter 25554, Laws of 1949. By original habeas corpus he questions the legality of his detention under the indictment, which was found and returned by a grand jury consisting of 18 grand jurors. The contention of the petitioner is that while at the time of the passage of Chapter 25554 it was concededly a valid general law of uniform operation throughout the state, it had lost this quality and had become, at the time the indictment was returned in 1962, a local law applicable only to Dade County, by reason of the fact that by various repealing statutes enacted in 1961 the Legislature had exempted and excluded from the operation of the act all counties in the state to which Chapter 25554 had theretofore been applicable.

If the petitioner's contention is sound his detention pursuant to the indictment is illegal, because, by the provisions of sections 20 and 21 Article III, Constitution of Florida, F.S.A., the matter of summoning and empanelling grand juries in Florida may be regulated only by a general law of uniform application throughout the state.

Before the enactment of Chapter 25554, Laws of 1949, the only provisions for summoning and empanelling grand juries in Florida were those embodied in Section *163 905.01 Florida Statutes, F.S.A., which provides:

"Every grand jury shall consist of not less than fifteen, nor more than eighteen persons, the assent of at least twelve of whom shall be necessary for the finding of any indictment. * * *"

In 1949, Chapter 25554, Laws of 1949, which contained the following provisions, was enacted:

"Section 1. In all counties having a population of 315,000 or more according to the last State or Federal Census, the grand jury shall consist of twenty-three jurors; provided that after a grand jury of twenty-three is empanelled and convened, fifteen members of such grand jury shall constitute a quorum and may transact business, and an indictment or presentment shall be found and returned only upon the concurrence of twelve or more grand jurors. * * *"

The constitutional validity of Chapter 25554 Laws of 1949 was upheld in Clein v. State (1950) Fla., 52 So.2d 117, and Lightfoot v. State (1952) Fla., 64 So.2d 261, the court being of the opinion that the act was a valid general law, because it was based upon a reasonable classification according to population and was not arbitrary or unreasonable in respect to the subject matter dealt with in the act.

After the enactment of Chapter 25554, Laws of 1949, there were in Florida two separate and distinct general laws, each governing, within the sphere of its operation, the summoning and empanelling of grand juries.

In 1951, the Legislature enacted Chapter 26664 Acts of 1951, entitled "An Act to Fix and Provide the Number of Grand Jurors to Constitute a Grand Jury, to Constitute a Quorum of the Grand Jury and to Find and Return an Indictment or Presentment, in Counties Having a Population of 225,000 or More According to the Last State or Federal Census." The wording of this act is identical with the wording in Chapter 25554, except for the insertion of a population figure of "225,000" in place of the population figure of "315,000" which appeared in the 1949 act.

Since, so far as we are advised, the constitutionality of Chapter 26664, Laws of 1951, has never been questioned in any court, we will assume, for the purposes of this hearing, that it is a valid general law of uniform operation throughout the State. We also hold, contrary to the contentions of the Attorney General, that the 1951 act did not supersede or supplant Chapter 25554, Laws of 1949, but operated merely as an amendment thereto by enlarging the scope of its application. Forbes v. Board of Health of Escambia County, 27 Fla. 189, 9 So. 446; Fla. Cent. & P.R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338; State ex rel. Buford, Atty. Gen. v. Watkins, County Clerk, 88 Fla. 392, 102 So. 347; Orange County v. Robinson (1933), 111 Fla. 402, 149 So. 604.

In 1961 the Legislature attempted by five local laws enacted after publication of notice to exclude Duval, Hillsborough, Broward, Orange and Palm Beach Counties from the operation of a great many existing laws and to repeal such laws as to such counties. See Chapters 61-796, 61-1468, 61-558, 61-1442, and 61-1413, General Laws of 1961. Specifically designated in the Duval County law, Chapter 61-796, as a statute to be repealed, is Chapter 25554, Laws of 1949. Specifically designated in the Orange and Palm Beach County laws as a statute to be repealed, is Chapter 26664, Laws of 1951. Specifically designated in the Hillsborough and Broward County laws as statutes to be repealed are Chapter 25554, Laws of 1949 and Chapter 26664, Laws of 1951.

Also enacted during the 1961 session of the Legislature was Chapter 61-577, Laws of 1961, a population act, which was apparently passed to accomplish for the counties coming thereunder the same purposes *164 as were sought to be accomplished by the aforementioned local laws for the counties named therein. So far as is material here, Chapter 61-577, General Laws of 1961, provided, as follows:

"Section 1. This act applies in all counties having a population of not less than three hundred fifty thousand (350,000) inhabitants, and not more than three hundred eighty-five thousand (385,000) inhabitants, according to the latest official decennial census.
"Section 2. Chapter * * * 25554, 1949; * * * chapter 26664, 1951; * * * Laws of Florida, are repealed insofar as they may relate to the aforesaid population bracket. * * *"

Incidentally, Pinellas County, with a population of 374,665 inhabitants according to the official Federal census of 1960, was the only County in the state directly affected by Chapter 61-577, at the time of its passage.

It is upon this set of facts that the petitioner questions the legality of the indictment, returned by a panel of 18 grand jurors selected from a 23-man "venire" summoned and empanelled in pursuance of Chapter 25554, General Laws of 1949. It is his contention that since the local laws, Chapters 61-796, 61-1468, 61-558, 61-1442 and 61-1413, General Laws of 1961, have exempted and removed Duval, Hillsborough, Broward, Orange and Palm Beach Counties from the operation of Chapter 25554, Laws of 1949, as amended by Chapter 26664, Laws of 1951, and the population act, Chapter 61-577, Laws of 1961, has accomplished the same result as to Pinellas County and other counties of the State that through an increase in population may grow into the population bracket described therein, there are no counties in the State, except Dade County, that are subject to the provisions of the 23-man grand jury act and hence that Chapter 25554, Laws of 1949, as amended, has become, in legal effect, a local law dealing with a subject matter that under the Florida Constitution may be regulated only by a general law of uniform operation throughout the State. See sections 20 and 21, Article III, Constitution of Florida.

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