State ex rel. Buckheitt v. Butt , 25 Fla. 258 ( 1889 )

Raney, O. J.:

These cases are writs of prohibition, and involve the power of the Criminal Court of Record of" Orange county to try persons charged with selling liquors in that county, an election having been held on September 22, 1887, to determine whether spirituous, vinous or malt liquors might be sold therein, and a majority of the votes-cast at such election being against the sale.

The 24th section of the Judiciary Article of the Constitution provides that there shall be established in thecounty of Escambia, and, upon application of a majority of the-registered voters in such other counties as the Legislature-may deem expedient, a Criminal Court of Record. It also prescribes how the judge of the court shall be appointed,, as well as his term of office and salary.

The 25th and 29th sections are as follows:

Sec. 25. The said courts shall have jurisdiction of all criminal cases not capital, which shall arise in said counties, respectively.

Sec. 29. The county courts in counties where such criminal courts are established, shall have no criminal jurisdiction and no prosecuting attorney.

By the eleventh section of the same Article the Circuit Courts are given “ exclusive original jurisdiction* * * of all criminal cases not cognizable by inferior courts; and original jurisdiction of actions of forcible entry and unlawful detainer, and of such other matters as the Legislature may provide.” This section also provides that Circuit Courts “shall have final appellate jurisdiction * * * of all misdemeanors tried in criminal courts.”

The 5th section of this Article gives the Supreme Court appellate jurisdiction “ in cases of conviction of felony in the criminal courts, and in all criminal cases originating in the Circuit Courts.”

The 18th section authorizes the Legislature to. establish in such counties as it may think proper, county courts which shall have jurisdiction of misdemeanors and other jurisdiction as prescribed by this section, but as no such court has been established in Orange county, and further, as under the 29th section, set out above a county court would, there being a criminal court of record established there, have “ no criminal jurisdiction,” we see no necessity for saying more concerning such county court’s powers.

The Legislature by a statute approved May 31st, 1887, (chapter 3736) p. 108, Laws of Florida of A. I). 1887, established a criminal court of record in and for Orange county and provided (§ 3) that it should have jurisdiction to try and determine all violations of the criminal laws of the State not punished by capital punishment which arise in the county. Its 16th section is that “ all appeals or writs of error prosecuted from the judgment of this court, whether to the Circuit or Supreme Court, shall be prosecuted in the same way and according to the same rules as govern such proceedings from the Circuit Court to the Supreme Court in criminal cases.”

At the same session of the Legislature in 1887, an act (chapter 3701) entitled “ an act prescribing the jurisdiction and powers, and regulating the proceedings in the Criminal Courts of Record,” was passed, and received the Executive’s approval on the third day of June. It defines the jurisdiction of such courts in counties where they are established in about the same language as is used in the Orange county act, and its provisions, as to appeals or writs of error, are also about the same.

The plain meaning and effect of the above constitutional and statutory provisions is that a criminal court of record shall have original jurisdiction of all criminal causes not capital arising in the county for which it is established, and that its judgments in cases of misdemeanors shall be subject to the final appellate jurisdiction of the Circuit Court, and in.cases of conviction of felony to the appellate jurisdiction of the Supreme Court. The 25th section of the XYIth Article defines a felony as follows :

“ The term felony, whenever it may occurr in this Constitution or in the laws of this State, .shall be construed to mean any criminal offence punishable with death or imprisonment in the State penitentiary.” It is clear that these criminal courts have no jurisdiction of felonies punished by death, but that they have original jurisdiction of all crimes punishable otherwise than by death.

The other constitutional and statutory provisions involved in this controversy are the XIXth, or Local Option article of the Constitution and the statute of 1887, chapter 3700, approved June 2d, 1887, providing for the enforcement of such article.

The first section of this Article of the Constitution is to the effect that the Board of County Commissioners of each county shall, not oftener than once every two years, upon the application of one-fourth of the registered voters, call and provide for an election in the county to decide whether the sale of iutoxieating liquors, wines or beer shall be' prohibited in the county, the question to be determined by a majority of those voting at the election, which election is to be conducted in the manner prescribed by law for holding general elections. It also provides that intoxicating liquors, either spirituous, vinous or malt, shall not be sold in any election district in which a majority vote was cast against such sale, and makes certain regulations as to the time of holding elections.

The second section of the article is as follows : “ The Legislature shall provide necessary laws to carry out and enforce the provisions of” section one of this article.

The act cited above for the enforcement of this article provides, pp. 42, 44, Acts of 1887, for a call of an election by the County Commissioners ou proper application and for registration of voters, the mode of conducting the election and other matters unnecessary to mention. Its third section enacts that any person who shall sell or cause to be sold any liquors, in any county voting against the sale of such liquors therein, contrary to the provisions of the act shall be deemed guilty of a misdemeanor and upon conviction shall be fined in a sum not exceeding five hundred dollars, or imprisoned in the county jail not exceeding six months, or by both fine and imprisonment.

The fourth section of the act is as follows: “The Circuit Courts of each Circuit in which such counties are situated shall have jurisdiction in all such offences as described in section 3 of this article.”

Relator’s counsei contend that the purpose and effect of the second section of this local option article of the Constitution were and are to give power to the Legislature to confer upon the Circuit Courts original jurisdiction of of-fences under the legislation enforcing it, and that the law makers have done so by the fourth section of chapter 3700 mentioned in the preceding paragraph. Counsel also argues that the intention of the Legislature in making this provision was to place all counties and citizens on the same footing under Article XIX as to the right of an appeal to the Supreme Court. Section 5 of the Judiciary Article does, as indicated above, give the Supreme Court appellate jurisdiction of all criminal cases originating in the Circuit Courts, and of eases of conviction of felony in the criminal courts, and it is clear from the provisions of the Constitution mentioned in this opinion that in any county where neither a criminal court nor a County Court has been established, the Circuit Court has original jurisdiction of any violation of offences against the third section of the local option statute or of any other misdemeanor. It is, however, j ust as plain, and altogether unquestionable, that the Constitution has given the criminal courts original jurisdiction of all criminal cases, not capital, arising in their respective counties, and given the Supreme Court appellate jurisdiction over its convictions of felony, and the Circuit Court a final appellate jurisdiction over all misdemeanors tried by it. This original jurisdiction of the criminal courts over criminal cases not capital cannot be taken away by the Legislature. The people speaking through the Constitution have said to the Legislature that these courts, whenever established, shall have jurisdiction of all offences to which the law makers shall not have affixed, the death penalty, and whenever the Legis*. lature establishes such a court in any county it does so with notice that the court will exercise this constitutional power, and of what courts its judgments are to be reviewed by. The establishment of this court in any county is the end of any question as to the advisability of co mmitting the review of its decisions in cases other than convictions ot felony, to the Circuit Courts. The Legislature can, by making an offence a felony, in the manner prescribed by the Constitution, secure the party who may be convicted of it, an appeal from the Criminal Court to the Supreme Court. If it does not do so, it must be held to have thought it unad. visable. A person convicted of any other misdemeanor in a criminal court is iu the same situation as to the tribuual by which such conviction may be reviewed, that a party convicted under the local ontion statute is in.

Whether or not the legislature can lawfully give the Circuit Courts original jurisdiction concurrently with the Criminal Court, of a case not capital, in a county where there is a Criminal Court ot Record, is a question not necessary for us to decide until the former court shall attempt to exercise such questionable jurisdiction in a county where there is a Criminal Court. It has not by its action yet shown any intention to give Circuit Court such original jurisdiction exclusive of the Criminal Court.

While it is true that Article XIX of the Constitution was submitted to the people to be voted upon separately from the other articles, yet in the language of the ordinance submitting it, it was “to become a part of the Qonsti~ tution if adopted by a majority of the votes cast upon the question.” It is in our judgment as much a part of the Constitution as any other article of that instrument is, and we do not think that its second section gives any more power to ehauge the jurisdiction of constitutional courts than similar sections or provisions of other articles do. There is, however, nothing in Article XIX or in the act enforcing it that pretends to take away from or to deny to the County Criminal Courts the jurisdiction given them by the Constitution. A grant of original jurisdiction to one court does not take from another court a previous grant of similar jurisdiction. Hays vs. McNealy, 16 Fla., 409.

It is contended that the law makers could not when they passed the act establishing the Criminal Court in Orange county have had the violation of Article XIX in contemplation, because it is said, the act enforcing such article had not been passed. The jurisdiction of the Criminal .Court is not confined to offences denounced before its establishment, but extends as well to those of subsequent as to •those of previous legislation.

The rule will be discharged and the relators pay the costs. Judgment will be entered accordingly in each case.