Ex-parte Peacock , 25 Fla. 478 ( 1889 )

Raney, C. J.:

The first section of the 10th article of the act establishing the municipality of Jacksonville, chapter 3775, Laws of 1887, provides for a municipal court for the trial of all offences against the municipal ordinances, and section 2 enacts that “ all persons convicted by said court shall forthwith pay all fines and costs assessed against them, in default whereof they may be committed; provided that if such persons shall appeal within three days from the judgment of the court they shall be released upon entering into bond with good and sufficient security in double the amount of the find and costs assessed against them, conditioned to appear before the court to which the cause is appealed, and to abide by aud perform the judgment thereof.”

The third, fifth and tenth sections of the same article are as follows:

Sec. 3. The Recorder shall keep a docket upon which shall be entered all causes tried in said court; said docket shall show by appropriate entries thereon the style of the cause, the nature of the offence, the j udgmeut of the court, the amount of fines and costs, the satisfaction of the judgment, whether by payment of the fines and costs or by committal or by pardon or remission of the City Judge. The docket shall also shotv the names of the witnesses examined in each case, and the date of the appeal, if granted.

Sec. 5. The Recorder shall return and file with the Clerk of the Appellate Court, within three days, the papers in all cases appealed, and he shall endorse on the warrant in each case the names of the witnesses on behalf of the city.

Sec. 10. Every person committed, after conviction, to the jail or house of correction, shall be required to work for the city, at such labor as his health and strength will permit, within or without said city, not exceeding eight hours each day ; and for such work and laber the person so employed shall be allowed, exclusive of his board, a credit upon his fine and costs, at the rate of seventy-five cents per day, until the whole amount is discharged, when he shall be released. No person shall be compelled to work longer than three months for any one offense.

The fourth section of the third article authorizes the Mayor and City Council to establish jails and houses of detention and correction, and to make regulations for the government thereof.

The Constitution of this State, section 11, Article V, gives the Circuit Courts “ final appellate jurisdiction in all civil and criminal cases arising in the County Court, or before the County Judge, of all misdemeanors tried in Criminal Courts, of judgments or sentences in any Mayor’s court, and of all cases arising before Justices of the Peace in counties in which there is no County Court.” Section 18 of the same article gives the County Courts which may be established by the Legislature in any county, original jurisdiction of all misdemeanors, and final appellate jurisdiction in civil cases arising in the courts of Justices of the Peace, and provides that the trial of such appeals shall be de novo at the option of the appellant. In counties, however, where there is a Criminal Court of Record, the County Court has no criminal jurisdiction. Section twenty-two of this article gives Justices of the Peace, in counties having no County Court, jurisdiction “ in such criminal cases, except felonies, as may be prescribed by law,” and provides that “appeals from Justices of the Peace to the Circuit Courts in criminal cases, shall be tried de novo, under such regulations as the Legislature may prescribe.”

The term “ Mayor’s Court ” includes any court organized under legislation pursuant to section 34, of Article Y of the Constitution, which section is as follows: “ The Legislature may establish in incorporated towns and cities, courts for the punishment of offences against municipal ordinances.” 'It is not essential that the court should be presided over by a Mayor. The term was used to designate the class of courts contemplated by the section quoted. Such courts have usually been presided over by a Mayor, and called Mayors’ courts in this State.

We cannot say there is no room for argument that the Legislature intended by the legislation set out above, to give the Circuit Court power to try de novo cases appealed from the Municipal Court of Jacksonville, yet we do not think such power can be given it under our Constitution. The language of section 11 of Article Y set out in the preceding paragraph of this opinion, defining the appellate jurisdiction of the Circuit Courts, must in view of the decisions of this court construing similar language in the former Constitution as to the appellate jurisdiction of the Circuit Courts, be held, if considered alone, to exclude such power as-being an exercise of original, and not appellate, jurisdiction. State ex rel. vs Baker, 19 Fla., 19; State ex rel. vs. Vann, Ib., 29; State ex rel. vs. King, 20 Fla., 399; State ex rel. vs. McClellan, 25 Fla., —; 5 So. Rep., 600. These decisions, except the last one of them, were fresh and •must have been prominently in the minds of the framers of the present Constitution and of the people when that instrument was formulated and adopted. The express provisions as to trials de novo in County Courts in civil cases, and in the Circuit Courts in criminal cases on appeal from Justices of the Peace, to be found in sections 18 and 22, indicate a purpose to except such appeals, from the general effect of the language of section eleven referred to. It is a fact, moreover, that the Legislature of 1887 has provided for the trial of appeals to the Circuit Court from Justices of the Peace in civil cases on bills of exception. Vide Chapter 3716, Laws of 1887. See also Chapter 3584, Laws of 1885.

. The provisions of the charter act of the city of Jacksonville involved in this cause must then be construed with reference to the -Constitution which limits the appellate jurisdiction of the Circuit Court over Mayors’ courts to a revisory power, and excludes a trial of the cause anew in the Circuit Court, as if the same had never been tried in the lower court.

Under this view of the Constitution and the legislation in question, our opinion is that the judgment to be rendered by the Circuit Court of Duval county on an appeal from the municipal court is one of affirmance or reversal.

The power of the municipal court to commit a person convicted before it if he does not forthwith pay the fine and costs assessed against him, does not rest upon inference or implication, but is expressly given by the second section of the tenth article of the charter act. . Construing this section and the tenth section of the same article and the fourth section of the third article, all of which are set out above, together, it is evident that the commitment is to be to the jail or to the house of correction, and then the convict shall be required to work at the compensation and in the manner provided by the tenth section, and thereby he discharges the fine and costs assessed against him and obtains a release from imprisonment.

' It is argued, however, that the charter act does not give, either expressly or by implication, the power to rearrest and commit a person who, having been convicted, has taken an appeal and been released on giving an appeal bond as required by the statute.

The basis of this contention is an assumption that as-soon as the appeal is perfected by giving an acceptable bond, the person convicted is not only released from custody, but the judgment can never more be a basis for the issuance of a warrant for its enforcement and satisfaction by arrest and commitment and labor, if no such warrant had been issued prior to the taking of the appeal, or for its further enforcement, if at the time the appeal was taken the appellant had actually been committed and put at labor under the judgment. In other words, the assumption of the argument is that an appeal has the effect, even after the affirmance of the judgment by the appellate court, to take from the municipality the power expressly given to its court to enforce its judgments by the arrest and imprisonment of the offender. The real proposition is that a power expressly and clearly granted to a municipality, or its court, has been impliedly taken away in certain cases by a regulation of the right of appeal.

The express provision of the statute as to the effect of the appeal is that if the person convicted shall, within three days after the judgment, appeal from it, he “shall be released ” upon entering into bond with good and sufficient security in the amount specified, conditioned to “ appear before the court to which the cause is appealed and abide by and perform the judgment thereof.”

The statute does not give power to the Circuit Court when it finds that the record before it sustains a conviction, to proceed and impose a different amouut of fine from that adjudged by the sentence of municipal court; this is true whether it be that any provision has or has not been made for carrying to the appellate court, for review, the evidence upon which the case was decided below. Moreover, as concluded above, there can under the Constitution be no examination of witnesses, or trial anew without regard to that in the lower court. As then the judgment of the Circuit Court must as the law now stands be one either simply of affirmance or of reversal, the question arises whether or not a judgment of affirmance can be in the form which has been entered in these cases by the Circuit Court, oris it necessary that such court shall enteran extended judgment or sentence against the appellant in the same terms sub. stantiaily as that entered by the municipal court ? If it is entered in the latter form then it will be the judgment of that court, not simply as an appellate tribunal passing upon the errors of an inferior court, but its independent judgment on the case made by the record before it to be euforcd by the same writs and officers as any sentence it might render in an original case would be enforceable. We do not think the statute contemplates a proceeding culminating in the Circuit Court enforcing through its writs and officers the penal ordinances of the city of Jacksonville.

The judgments of the Circuit Court in these cases by which the judgments of the municipal court are “ affirmed ” are nothing more or less than the judgment of the former court that the judgment of the latter tribunal are legal and should be paid, and if not paid, enforced in the mauner prescribed by the charter statute, and they in the form used are as much within the terms of the appeal bond as they would be if they expressly stated, as a result of such affirmance, that the appellant should pay the fine and costs adjudged by the lower court, or as a judgment, of the kind referred to in the preceding paragraph as uot contemplated by the statute, would be, if such a judgment had been provided for and rendered.

It may be remarked here that the form of the Circuit Court judgments is'substantially the same as that used in theSupreme Court in affirming judgments.

The purpose of the statute is that the appeal, when perfected by giving the. bond’ shall operate as a supersedeas to the execution of the judgment pending the appeal, and one element of this supersedeas is that the convict shall be released from custody. A discharge from custody is by express provision of law, a feature of a supersedeas on writs of error in criminal cases not capital, under the statutes of this State, an order for both the writ of error and the discharge being required. Though pending the appeal the municipal authorities cannot enforce the sentence of the municipal court against the convict, yet upon the affirmance of the judgment by the Circuit Court, it becomes of the same force and effect as if the appeal had not been taken and perfected. The sole purpose to be seen by us in these appeal provisions is, that the couvict may test in an appellate court the legality of his conviction, and that while doing so, the execution of the sentence should be stayed in all respects, including that involving his liberty. To give them a further effect is to extend them outside of and away from the ordinary purpose of an appeal and supersedeas. They say that by the provisions for the release of the convict, and the terms of the condition of the ap’ peal bond, the Legislature intended to relieve any one appealing and giving the boud from process against his person after the legality of his conviction and sentence should be affirmed by a higher court, is to give these provisions a construction not within the meaning of the terms employed when considered with reference to the particular subject matter as to which they are used, and to impart to them an effect beyond the reason and purpose of such provisions. The statute has given express power to commit a person convicted and fined before the. municipal court of Jacksonville, and when a convict has appealed, and the judgment appealed from has been affirmed, and the affirmance certified back, the appeal provisions have served their only purpose, and the judgment of the municipal court is of the same force and effect as it was before the appeal was taken, and while the effect of the affirmance on appealds to preclude any further test of the judgment by appeal, it does not prevent the enforcement of the judgment in the ordinary manner provided by the statute.

Counsel for petitioners invoke in support of their position the eighth section of the teeth article of the statute. which is- that “ in all cases where the parties accused have been released upon bonds or other security, if they fail to appear, the city court shall proceed to enter judgment upon said bonds or other security for the full amount of the penalty, and the Recorder shall, at the expiration one day from the rendition of such judgment, issue a fieri facias to the Marshal, who shall execute the same.”

This section does not apply to persons who have been convicted, but to those who have merely been “ accused.” Its meaning is to.be ascertained by a reference to the sixth section, which enacts that all persons arrested for the vio lation of any ordinance, or any municipal misdemeanor shall be immediately confined in the jail, or house of detention, and “ shall remain therein until discharged or tried by the city court, unless they shall give proper security for their appearance before said court, in which event they may be released.” This section also gives power to the Chief of Police, and officers in charge of the jail or house of detention, to take “from persons, arrested, ” bonds or other security for their appearance before the city court; and the seventh section makes it the duty of the Chief of Police to report to the city court every morning at nine o’clock all arrests and committals made during the preceding day and night, the names of the accused, and witnesses, the of* enees charged and the bonds or other security of their release.

When we consider these three sections- together it becomes apparent that the sole purpose and effect of the eighth section is to- give the municipal court power to es-treat the bail security of a defaulting accused person, and to regulate the practice in such cases. The release which the accused is awarded by the sixth section on giving the bail security, is, of eoure, limited to the time for his appearance before the municipal .court to be tried. We can hardly imagine a contention that it means more, or that proceedings under the eighth section would preclude the subsequent arrest and trial of the offender.

This release on security was intended for the benefit of the accused, and not as a disability or limitation upon the powers of the municipality or its court to enforce its ordinances. The same observation is equally applicable to the release in the case of an appeal, and the real nature and purpose of the provisions of the law in the latter case find illustration in those of the former.

II. Another alleged ground of the illegality of the detention is, that the ordinance under which these convictions were made is void as being not in consonance with our laws, vague and uncertain.

Ordinance No. 14 is one “ to provide for the preservation of the public peace and morals, and for the good order and government of the city of Jacksonville,” (approved April 20th, 1888,) and th.% first paragraph of its seventh section provides that it shall be unlawful for any person or persons owning, controlling or conducting or acting as agents, proprietors or persons in possession of auy bar-room, storeroom, saloon, premises or other place of any kind, where beer, ale, cider, wine, vinous, malt, fermented or spirituous liquors of any kind are sold or kept for sale within the limits of the city of Jacksonville by drink or otherwise, “ to keep the same open, or any door or aperture thereof which could of might be used as a means of ingress or egress to such premises, or in such a manner as the public could be admitted, or sell, offer for sale, give or dispose of any such spirituous, vinous or malt liquors aforesaid, on the Sabbath day,” and all such places shall be closed “ from 12 o’clock at night until 5 o’clock in the morning.”

The last sentence of this section declares any person or persons violating any of the provisions of this section to be disorderly persons, dangerous to the peace and morals of the city, and punishable as provided by the first section of the ordinance, i. e., may be fined in such sum, or impris oned such length of time as the Judge of the municipal' court may determine, but the fine shall not exceed $500 and no person shall be imprisoned exceeding ninety days, except for the non-payment of fine and costs.

The authorities relied on for support of the proposition that the ordinance is void for the reasons alleged,,are cited as these referred to in sections 181 and 204, pp. 415 and 416, Vol. IX, U. S. Digest. The proposition of section 131, citing Mayor, &c., vs. Hussey, 21 Ga., 80; Haggard vs. Savannah, 12 Ga., 404, and State vs. Caldwell, 3 La. Ann, 435, is, that city ordinances conflicting with the Constitution or with statutes are invalid, and that of section 204, citing Municipality No. One vs. Cutting, 4 La. Ann., 335, and Merriam vs. New Orleans, 14 Id., 318, is that a municipal ordinance must be consonant with the law of the land, but it must receive a reasonable construction, and not be strictly scrutinized to avoid it.

Counsel have not attempted to specify the particular law or laws, the constitutional or statutory provision, -with which the ordinance in question is not in consonance, nor do such of the cases referred to as are within our reach, direct our attention to any provision of law as being violated by the ordinance. There is no fatal vagueness or uncertainty in the quoted language of the ordinance ; the use of the word “ door ” is a sufficient exponent that the meaning of the ordinance is that the “ aperture ” or other manner of keeping open must be one serving the same purposes of ingress and egress as a door naturally does when kept in a condition that it can be opened by, or ready to be opened for, the'public. A reasonable view of the language used relieves the ordinance of all uncertainty. 4 La. Ann., 335, supra.

III. It is also urged that the above provisions of Ordinance No. 14 were repealed by Number 23, and approved June 14th, 1888.

The latter ordinance was not intended to effect the first paragraph of the seventh section of ordinance 14, nor the last sentence of the third paragraph supra of that section in so far as that sentence is applicable to the first or second paragraphs. Ordinance 23 is in effect an amendment of the first sentence of the third paragraph of the seventh section, and, with other changes, makes one in the penalty, but it expressly excepts the second or last sentence of the third paragraph from its repealing clause, thus continuing it as to all other parts of the seventh section than the first, sentence of the third paragraph as amended.

Ordinance 23 expressly provides that'the repeal which it effects of the first sentence of the third paragraph shall not effect any prosecution previously commenced for any' offence under “section seven,” meaning of course, under the first sentence of the third paragraph, as it repeals no other part of the section.

The purpose of Ordinance 23, as construed by us, will be readily seen on considering it and the third paragraph of the seventh section of Ordinance 14, as given in the statement.

,.IY. The judgments of the municipal courts are assailed on the ground that the court has no power to commit to' the Chief of Police for an indefinite period. These judgments are in some cases that the prisoners be committed to. the custody of the Chief of Police .until the finéis paid, and in others till the fine and costs are paidi

Where the sentence is to pay a fine, says Mr. Bishop, the order of the court should accompany the sentence that the defendant stand committed until the fine, or the fine and costs, either or both, as the case may be, shall be paid. 1 Bish. Crim. Pro., section 1132. Such is the ordinary and proper form of the order where the common law on the subject has not been changed by statute, and under such an order, or a writ issued in pursuance thereof, it is the duty of the officer, whose function is to enforce it, to imprison the defendant in the jail or other prison provided by law as the place of detention. There is nothing in the charter act of Jacksonville that renders such a form of judgment improper or irregular. Undersectionten,swpra, it is the duty of theOhief. of Police, or other authorized ministerial officer, to confine any person convicted and sentenced to pay a fine, and committed to his custody, as in the cases before us, in the jail or house of correction provided by the municipality, and when so committed, such person shall be required to work for the city under the limitations and with the credits therein provided, but it is not necessary or proper that the provisions of this section should be incorporated in the judgment of the court. Ex-parte Hunter, 16 Fla., 575; State ex rel. vs. Holland, 23 Fla., 123; Ex-parte Martini, Id., 343.

The judgment entered by the municipal court in these-cases does not of itself constitute indefinite imprisonment, in violation of the eighth section of our Bill of Rights. Ex-parte Bryant, 24 Fla.; S. C., 4 So. Rep., 854. The provisions of section ten of the charter act are a guaranty against the indefinite imprisonment of persons held under such judgments of the municipal court.

V. The only point remaining to be considered is, that the warrants “ under which petitioners are held are fatally defective in not indicating what ordinance of the city had been violated, and in adjudging one dollar costs for the clerk of the Circuit Court with the affirmation in behalf of the city.”

The warrants give the date of the conviction or judgment in the municipal court, and the amount of the fine, and state that the conviction was for the violation of an ordinance of the Mayor and council of the city, as shown in the statement.

Though the writs ot capias in these cases are not as specific as they might be, they are not fatally defective, nor so indefinite as to be prima facie invalid. They are on the other hand valid upon their tace ; they show that they have been issued upon the final judgmentofacompetent court,and identify and connectthemsel ves with the judgmentbyits date and the amount of the fine, and show that the conviction is of a class of offences of which the court has jurisdiction. In People vs. Cavanaugh, 2 Parker C. R., 650, where the statute provides that the judgment should state briefly the of-fence for which the conviction was had, and a copy of the judgment was the sheriff’s warrant, and the offence of which the conviction was had was described in the judgment as a “ misdemeanor,” such description was held to be sufficient.

Without admitting that where a party is held on a capias issued upon a final judgment or sentence, that the mere irregularity of the process will authorize a discharge without giving reasonable time ro procure a valid capias, it being shown that there has been a legal conviction, Matter of of King, 28 Cal., 247, the case before us is, in our opinion, not only one in which the capias is not fatally irregular, but also one in which the return, including the accompanying papers, clearly shows that the petitioners have been legally convicted, and are legally held.

It only remains for us to say that the writs of capias issued by the Municipal Judge do not in fact direct an enforcemeat of the costs of the Circuit Court, but an enforcement “ ot the order of the said municipal court.”

The result is that the petitioners must be remanded to the custody of the Chief of Police of the municipality of Jacksonville, under the writs issued by the Judge of the municipal court of that city, for the enforcements of the judgments upon which the same were issued, and judgments will be entered accordingly.