author: HOBSON, Justice.

text:
    Ray B. DOUTH, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    Feb. 15, 1956.

      Larkin & Larkin, Dade City, for appellant.
    Richard W. Ervin, Atty. Gen., Bart L. Cohen and Joseph P. Manners, Asst. Atty. Gen., for appellee.
   HOBSON, Justice.

Appellant herein was found guilty of armed robbery, and timely filed a motion for new trial on the ground of newly discovered evidence, this motion being supported by the affidavits of appellant, his counsel and others. The court denied the motion for new trial and proceeded to enter judgment and sentence, and the sole question presented here is whether this ruling constituted an abuse of discretion by the trial court.

At the trial the complaining witness, one Wright, a manufacturing and wholesale jeweler, testified that appellant had taken him some distance from his home, in appellant’s car, on the pretext of showing to appellant’s wife, for her approval, a diamond which the complaining witness had for sale. Wright further testified that appellant, covering him with a revolver, forced him to walk through a ditch filled with water and strip to his underwear and shoes, divesting him of two diamonds which he had on his person. Wright, in his unclothed condition, was subsequently picked up by the two Alvarez brothers, one, of whom was called as a witness for the State. The Alvarez brothers transported Wright to his home, where he called the police who later apprehended the appellant. The appellant was positively identified by Wright. The testimony of C. W. Alvarez corroborated Wright’s .story.

The motion for new trial was accompanied by affidavits from C. W. and R. N. Alvarez and one Clyde McKendree. The affidavits of the Alvarez brothers state that the few clothes the complaining witness was wearing when picked up were dry. They contain other statements inconsistent with the evidence adduced at the trial. The Mc-Kendree affidavit states that the affiant was present at a filling station located on the way to the scene of the crime before it allegedly occurred when he saw two men, one of whom was the complaining witness, proceeding north in an automobile. He later saw the same automobile returning without the complaining witness but still containing the other man, whose appearance, as he described it, did not comport with the physical characteristics of the appellant.

The State contends that the primary effect of these affidavits would be their tendency to impeach the testimony of the complaining witness. We have held that evidence having a mere tendency to impeach is insufficient to justify the granting of a new trial on the ground of newly discovered evidence under F.S. § 920.04(3), F.S.A., Winsley v. State, 69 Fla. 391, 68 So. 376, but that the new evidence must go to the merits and be material. Long v. State, 42 Fla. 612, 28 So. 855; Jones v. State, 35 Fla. 289, 17 So. 284. We think, however, that the evidence which has now been disclosed meets this test. It was the theory of the defense that a false “robbery” was arranged by the complaining witness to cover the disappearance of the rings. The McKendree affidavit would tend to corroborate this theory.

On the whole case it appears that there was nothing which' could definitely have led defense counsel to the affiant Mc-Kendree to obtain the information which he later disclosed. Although the body of the motion which accompanied the affidavits may be technically defective in that it does not specifically show the steps used by the defense to acquire the McKendree information, State v. Sears, 148 Fla. 89, 3 So.2d 721, we have held that such restrictions upon the granting of a new trial on the ground of newly discovered evidence are not inflexible and “must sometimes bend in order to meet the ends of justice.” Gaither v. Anderson, 103 Fla. 1190, 135 So. 840, 139 So. 587, 588, and cases cited therein.

ít appears that the ends of justice will best be served by granting the motion for new trial in this case. The judgment appealed from must therefore be and it is hereby reversed and remanded for further proceedings not inconsistent herewith.

DREW, C. J., and TERRELL, ROBERTS and THORNAL, JJ., concur.

THÓMAS, J., dissents. ‘

O’CONNELL, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    John C. BECKMAN and Katherine B. Beckman, his wife, and Richard C. Beckman and Patricia Beckman, his wife, Appellants, v. Francis J. MARSHALL and Ann M. Marshall, his wife, Appellees.
    Supreme Court of Florida. Special Division A.
    Feb. 15, 1956.

      Alfred E. Hawkins; Hawkins & Orfinger, and Horn & Ossinsky, Daytona Beach, for appellants.
    Walter A. Shelley, Daytona Beach; for appellees.
   DICKINSON, Associate Justice, and DREW, Chief Justice.

This is a squabble between two neighbors.

Plaintiffs below, operators of a guest house on Ridgewood Avenue in Daytona Beach (four-laned U. S. Highway No. 1) brought this action against the four defendants alleging that they were maintaining a private nuisance On their property in that they were conducting a day nursery thereon five days a week for children from two to six years of age from about 8:00 a. m. to about 5:00 p. m. Voluminous testimony (some 800 pages) was taken by all the parties below and the chancellor, in a very sweeping decree, enjoined the defendants from operating their nursery entirely, and then further enjoined them from doing certain specific acts in relation thereto, and awarded damages and costs against defendants. An appeal has been taken to this Court from this decree and plaintiffs’ cross-appeal on the denial of damages for loss of valúe in plaintiffs' property.- .

' From the voluminous testimony taken we glean that plaintiffs bought this property in 1940 and have operated it as a guest house ever since. It is located on U. S. Highway No. 1 just one-half a block south of its intersection with U. S. Highway No. 92. U. S. Highway No. 1 is a four-lane highway between Jacksonville and Miami. U. S. Highway No. 92 is the Federal highway between Daytona Beach and DeLand. In the block here involved, in. addition to the nursery school complained, of, are- three filling stations, a -thirty-room hotel,- a doctor’s office, an insurance' and real estate agency, several guest houses, of which plaintiffs’ is one, and only one. private home. No one .other than the plaintiff is complaining. As a matter of fact, the owner of the guest house on the other side of defendants’ nursery testified that she was not annoyed by it. Plaintiffs are elderly people. 'The Florida East Coast Railway station and main line tracks are immediately to the rear of. the properties involved, less than one block away. There is no zoning ordinance prohibiting the use of such property for such purposes. Hence the matter boils down to whether this is a private nuisance or not.

From the testimony it appears that these children begin to arrive about 8:00 a. m. and leave about 5:00 p. m., taking a nap after being fed their lunch.- The school here is well supervised by the defendant and an assistant, that is as well supervised as an institution of this kind cán be. The playing of the children outside is limited and supervised. Their actions and singing inside ■ is supervised and everything that can' be done is being done to minimize the noise. Since this is an unrestricted area so far as zoning against schools is concerned, the school would 'have to qualify as a private nuisance for equity to intervene. True; the children make a "certain amount of noise, but there must be some relationship of their-noise -to the surrounding noises for equity to act. ' It is inconceivable tó see how, in the neighborhood of this fóur-lane highway with its trucking traffic, the railroad immediately to the rear, -three filling-' stations, traffic .signal lights on the corner, the pitter patter of little feet and the noises -of children singing and at play, even though there may be twenty-five of them, can become a nuisance to plaintiffs and be enjoinable in a court of equity. ' ■

The following language from the case of Antonik v. Chamberlain, 81 Ohio App. 465, 78 N.E.2d 752, 758, which we hereby adopt and approve, is particularly applicable and we think largely determinative of the questions- involved in -this case:

“Nuisance, in law, for the most part consists in so using one’s property as to injure the land or some incorporeal right of one’s neighbor. An act which is wrongful in itself may be adjudged wrongful before it is committed, as well as afterwards. But an act which is in itself rightful, and may become wrongful only because of some' effect which it produces, ‘ is generally not proved wrongful by a priori reasoning. Even when it appears that a given act or acts done in a certain way are wrongful, it does not follow that some part of the act or acts may not be rightfully done, or even that the entire operation may not be later done in such á way' as to be rightful.1 It is often found that the damage to the defendant which the interference of a court, through injunction, would cause, will be out of all proportion to the damage to the plaintiff or to the public in general.
“The law- -of -nuisance plys between two antithetical extremes: The principle that every person is entitled to use his property for any purpose that-,he sees fit, and the. opposing principle that everyone is bound to use his property in such a manner as not to injure the property or rights of his neighbor. For generations, courts, in their tasks of judging, have ruled on these extremes according to the wisdom of the day, and many have recognized that the contemporary view, of public policy shifts from generation to generation.
• * * *
‘‘The necessities of a social, state, especially in a great industrial community, compel the rule that no one has absolute freedom in the use of his property, because he must be restrained in his use by the existence of equal rights in his neighbor to the use of his property. This rule has sometimes been erroneously interpreted as' a prohibition of all use of one’s property which annoys or disturbs his neighbor in the enjoyment of his property. The question for decision is not simply whether the neighbor is annoyed or disturbed, but is whether there is an injury to a legal right of the neighbor. The law of private nuisance is a law of degree; it generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is ‘an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort.’ * * *
“ ‘It is not everything in the nature of a nuisance which is prohibited. There are many acts which the owner of land may lawfully do, although it brings annoyance, discomfort, or injury to his neighbor, which are damnum absque injuria * * *.
“ ‘The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, Was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property ? having regard to all interests affected, his own and those of his neighbors, and having in view, also, public policy.’ * * *
“All systems of jurisprudence recognize the requirement of compromises in the social state. Members of society must submit to annoyances consequent upon the, reasonable use of property. ‘Sic Utere tuo ut alienum non laedas’ is an old maxim which has a broad application. If such rule were held to mean that one must never use his own property in such a way as to do any injury to his neighbor or his property, it could not be enforced in civilized society. People who live in organized communities must of necessity suffer some damage, inconvenience and annoyance from their neighbors. For these annoyances, inconveniences and damages, they are generally compensated by the advantages incident to living in a civilized state.”

We are not unmindful of the fact that this record does show the operation of the nursery to be offensive and annoying to the appellees. This, however, is not the test. Obviously the appellees, so to speak, are simply allergic to children and the noises they make. In dealing with the question of what constitutes a nuisance, the characteristics and temperament of the affected person or persons must be taken into consideration. The test to be applied is the effect of the condition complained of on ordinary persons with á reasonable disposition in ordinary health and possessing the average and normal sensibilities. It is a well-settled principle of law that:

“The test is not what the effect of the matters complained of would be on persons of delicate or dainty habits of living, or of fanciful or fastidious tastes; or on persons who are delicate, or invalids, afflicted with disease, bodily ills, or abnormal physical conditions; or on’persons who are of nervous temperament, or peculiarly sensitive to annoyance or disturbance of the character complained of; or on persons who use their land for purposes which require exceptional freedom from deleterious influences.” 66 C.J.S., Nuisances, § 18(c), p. 765.

Moreover, the time that the noises or other offensive actions took place is important. In the instant case, all such events took place between 8:00 o’clock in the morning and 5:00 o’clock in the afternoon. What weli might be a private nuisance at 3:00 o’clock in the morning would not be one in the day time or earlier in the evening. See Mayflower Holding Company v. Warrick, 143 Fla. 125, 196 So. 428; 66 C.J.S., Nuisances, § 22(b), p. 775; Bartlett v. Moats, 120 Fla. 61, 162 So. 477.

Measured by the above standards, the decree appealed from is erroneous and is hereby reversed with instructions to dismiss the cause at the cost of the plaintiffs below.

TERRELL and THORN AL, JJ., concur.


author: ROBERTS, Justice.

text:
    The MIAMI BEACH FIRST NATIONAL BANK and Old Colony Insurance Company, Petitioners, v. Elma DUNN and the Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Division B.
    Feb. 15, 1956.

      Frank A. Howard, Jr., and Dixon, De-Jarnette, Bradford & Williams, Miami, for petitioners.
    Burton B. Loebl, Miami Beach, for Elma Dunn.
    Rodney Durrance, Tallahassee, for Florida Industrial Commission.
   ROBERTS, Justice.

We here review, on certiorari, an order of the Florida Industrial Commission entered in a workmen’s compensation proceeding. The facts and the point at issue here are stated in the order, which reads as follows:

“This cause came on to be heard upon application of the employer and carrier for review of an order of the Deputy Commissioner dated May 26, 1955, dismissing the request of the insurance carrier for a hearing to adjudicate the degree of the employee’s permanent partial disability, which request was submitted after the carrier had completed payment to the claimant of compensation for 10 per- cent permanent partial disability of her hand and had filed with the.1 Commission a Final Settlement Report with respect to the claim.

“The employee received an injury by accident arising out of and in the course of her employment with the employer on February 23, 1953, when she injured her right wrist in attempting to operate an indorsing machine, and she filed a claim for compensation- on August 14, 1953. The Deputy Commissioner entered an order on September 24, 1953, requiring the employer by its carrier to pay the employee compensation for temporary total disability ‘during the period that cláimant is temporarily and totally disabled.’ Pursuant to this order the carrier paid the claimant compensation for temporary total disability until July 23, 1954, at which time Dr. Kushner reported that she had reached maximum degree of recovery and had been rated as having a 10 per cent permanent partial disability of her hand. Accordingly, on said date the carrier considered that the payment of compensation for temporary total disability pursuant to the order of the Deputy Commissioner had -been completed, and the carrier commenced paying the employee compensation for permanent partial disability on the basis of said rating, continuing same for a period of 17^/2 weeks. On November 19, 1954, the carrier filed with the Commission a notice that compensation had been, suspended, effective November 23, 1954, for the reason that payment for permanent partial disábility had been completed. Thereafter, on February 25, 1955, the carrier filed with the Commission an Injury Progress and Final Settlement Report on Commission Form F. I. C. 13, in which it reported having paid claimant $1,485.00 for temporary total disability, and $525.00 for permanent partial disability, the latter representing compensation for 17j4 weeks- at $30.00 a week. In said report the carrier listed date of final payment as November 23, 1954, and date case closed as February 23, 1955. Section 440.15(3) (c) of the Workmen’s Compensation Law [F.S.A.] provides that compensation shall be paid for 175 weeks for the loss of a hand, and Section 440.15(3) (s) of said Law provides that compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. Thus, compensation for permanent partial disability consisting of 10 per cent loss of use of a hand would be for 10 per cent of 175 weeks or 17J4 weeks; and compensation for permanent partial disability was paid to the claimant for 17)4 weeks according to the said Injury Progress and Final Settlement Report filed by the carrier.

“In the meantime, on January 26, 1955, the carrier by its counsel filed with the Commission a request that a hearing be held before the Deputy Commissioner ‘for confirmation upon the record of the benefits furnished to date and the rating upon which payments for permanent partial disability were paid.’ At that time there was no claim by the employee pending before the Commission for any further compensation or medical benefits. The carrier contended that under Section 440.20(8) of the Workmen’s Compensation Law it was the duty of the Commission to adjudicate the status and rights of the parties.

“After duly holding a hearing on April 5, 1955, the Deputy Commissioner entered an order on May 26, 1955, dismissing the request of the carrier for an adjudication of the degree of the permanent partial disability of the employee. In dismissing said request of the carrier for an adjudication in confirmation of the rating upon which payments for permanent partial disability had been paid, the Deputy Commissioner pointed out that after payments to the employee for temporary total disability had been concluded no claim for further compensation was filed by the employee and neither the Law nor the administrative practice of the Commission supports the contention of the carrier that it is entitled to such adjudication after having completed payment without an award of compensation for permanent partial disability.

“The Florida Workmen’s Compensation Law contemplates that compensation shall be payable thereunder without an award, as indicated by the provision of Section 440.20(1) that, ‘Compensation under this chapter shall be paid periodically, promptly in the usual manner and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.’ For this reason the Law is commonly referred to as being ‘automatic’ or ‘self-executing.’ It is only when an employer fails to pay compensation when due or controverts the right to compensation, that resort to the claim, hearing, and determination provisions of the Act becomes necessary.

“In its application for review the carrier contends that under Section 440.20 (8) of the Act the employer and carrier are entitled to a hearing ‘for the purpose of determination upon the record of their rights and obligations with respect to the benefits furnished to the claimant.’ In support of this position it cites Superior Home Builders v. Moss, Fla., 70 So.2d 570. The said Section 440.20(8) provides that the Commission shall in any case (1) where right to compensation is controverted, or (2) where payments of compensation have been stopped or suspended, make such investigations, cause such medical examination to be made, or hold such hearings, and take such further action as it considers will properly protect the rights of all parties. This is not a case in which right to compensation is controverted. Compensation was paid by the carrier without an award for permanent partial disability, and no claim has been made for any further or additional compensation. Neither is this a case in which ‘payments of compensation have been stopped or suspended,’ within the meaning of this subsection. When construed pari materia with reference to other provisions of the Act, the phrase evidently and logically refers to compensation being stopped or suspended before payment of compensation due or claimed to be due has been completed. Where payment of compensation is terminated because payment of all compensation payable has been completed, the situation is governed by the immediately preceding subsection 440.20(7), which provides that within thirty days after final payment of compensation lias been made, the'employer shall send'to the Commission a notice, in accordance •with a form prescribed by the Commission, stating that such final payment has been made and setting forth certain other information. (This the carrier did in this case by report filed February 25, 1955.)

“It would be ridiculous and impose an almost impossible administrative burden to interpret the Act to require the Commission to cause a medical examination to be made in every case after final payment of compensation has been made. Likewise, it would impose an almost impossible administrative burden to interpret the Act to require the Commission to hold a hearing and make a formal adjudication of ‘the rights of all parties’ in each of the'many thousands of cases-in which final payment •of compensation is made each year; Such adjudication in the absence of any claim for further or additional compensation would •operate to foreclose the right of the employee under Section 440.19(1) of the Act to file a claim for permanent partial disability ‘within two years after the date of the last payment’ of compensation made without an award, thereby relegating the employee to the procedure of Section 440.28 in" the event he decided to claim additional compensation, a procedure limited to cases involving a change in condition or a mistake in a determination of fact.

“Assuming arguendo, however, that •said Section 440.20(8) is applicable under the facts of the instant case, it does not require that the Commission either hold a hearing or make a formal- adjudication in each case.in which payments of compensa-tion h'ave been stopped or suspended. It merely- provides that in such case the Commission shall make such investigation, cause such medical examination to be made, or hold such hearings, and take such further -action as it considers will properly protect the rights of all parties. Thus, the Commission is given wide discretion as to the procedure it will follow'and the action it will take to ‘properly protect the rights of .all parties.’ No requirement is included} that in such case the Commission must enter an order making a formal adjudicátion of the employee’s degree of disability. In all such cases the Commission through its established administrative procedures does make ‘such investigation? and ‘take such ■further action as it considers will properly protect the rights of all parties.’ Sections 440.18 and 440.36 of.the Act require the employee and the employer or carrier to submit specified reports in respect of the injury to the -Commission from time to •time, and Section 440.20 requires certain additional notices and -reports, including- a notice of final payment containing specified information; and Section 440.13 requires that the attending physician or physicians furnish certain reports. To implement these statutory provisions the Commission has in effect thirteen regulations relating to ‘Reports to be Filed in All Injury ’ or Death Cases Coming within the - Purview of the Florida Workmen’s Compensation Act.’ The Commission has a staff of Examiners-who-in each case, ex- ■ amine, audit,- check, .and compare the in- ■ formation contained in the various reports submitted from time, to time by the employee, employer, carrier, and attending physicians, including the final settlement report. When it appears.that the respective parties are complying, or have complied with the provisions of the Act, that ;no controversy exists between the parties, and that the injured employee is receiving or has received the compensation and medical attention to which he appears entitled on the- basis of all reports submitted including medical reports, no -further investigation, medical examination, hearing, or other affirmative action by the Commission is considered necessary to properly protect ■ the rights of-all parties. On the. other hand, when an Examiner finds any. apparent irregularity, failure in .compliance; controversy, or delay; stoppage or suspension in the payment of compensation due or the furnishing of medical treatment required by the nature of the injury Or the process of recovery, he takes ‘such further action’- as -appears necessary to ‘properly protect -the rights Of all parties.’ Such further action may include án investigation, referral of the file to a Deputy Commissioner for an informal conference with the parties, or a hearing before a Deputy Commissioner, •and may or may not require entry of a compensation order or other formal adjudication by the Deputy.

“The carrier contends in this case that in the absence of ‘determinative action’ by the Commission the normally applicable periods of limitation prescribed in the Act are suspended, as a result of which the employer and carrier remain exposed indefinitely to claims for further or additional compensation and medical benefits. We do not agree. The carrier has complied with the order of the Deputy Commissioner that it pay the employee compensation for temporary total disability ‘during the period that claimant is temporarily and totally disabled,’ and in addition thereto, without an award, it has paid the employee certain compensation for permanent partial disability. The employee has made no claim for further or additional compensation. Section 440.19 of the Act (1953) specifically provides that the right to compensation for disability shall be barred unless a claim therefor is filed within two years after the injury, except that if payment of compensation has been made without an award a claim may be filed within two years after the date of the last payment. (Italics supplied.) Since payment of compensation for permanent partial disability has been made without an award, any claim for further or additional compensation would be barred unless a claim therefor is filed within two years after the date of the last payment. If it were deemed that in a broad sense all the compensation paid to the employee herein was pursuant to the compensation order of September 24, 1953, under Section , 440.28 of the Act the employee cannot claim further compensation unless she does so ‘prior to two years after the date of the last payment of compensation’. Accordingly, either way the carrier is protected by the limitations prescribed in the Act, and the employee’s right to make a claim for further compensation ‘at any time prior to two years after the date of the last payment of compensation’ should not be foreclosed by a permature adjudication made at the request of the carrier. As to medical attention, Section 440.13(3)(b) provides that all rights for remedial attention shall be barred unless a claim therefor is filed within two years after the date of the last remedial treatment furnished by the employer, or after the date of the last payment of compensation.

“The opinion in Superior Home Builders v. Moss, supra, is not applicable as it was limited to holding that the then one year limitation provided in Section 440.28 of the Act applied only where an employee sought modification of an award. In that case the employee did not seek ‘modification’ of the original award dated July 23, 1951, but made claim on February 13, 1953, for additional compensation and medical treatment. The ‘matter was still open for such an adjudication’ because the employee presented his claim for such additional compensation ‘within two years after the time of injury’ pursuant to Section 440.19.”

The commission’s interpretation of the relevant provisions of the Workmen’s Compensation Act seems logical and reasonable to us; and, under the familiar rule that an administrative interpretation of an Act will not be overturned “except for the most cogent reasons, and unless clearly erroneous”, King v. Seamon, Fla.1952, 59 So.2d 859, 861, we adopt its interpretation as that of this court.

We also agree with the Commission that there is nothing in Superior Home Builders v. Moss, Fla. 1954, 70 So.2d 570, that requires a different holding. That case is authority only for the proposition that, in the absence of a final order adjudicating that the carrier has discharged its obligation to the claimant in full, the claimant may file a claim for additional compensation within the two-year limitation period prescribed by Section 440.19, Fla.Stat. 1953, F.S.A., and is not required to proceed under Section 440.28, Fla.Stat.1953, F.S.A. with its concomitant requirement of a showing of a change in condition or a mistake in a determination of fact.

For the reasons stated, certiorari should be and it is hereby

Denied.

DREW, C. J., and THOMAS and O’CONNELL, JJ., concur.


author: PER CURIAM.

text:
    D. VARNER’S USED CARS, Inc., a Corporation, Appellant, v. ASSOCIATES DISCOUNT CORPORATION, a Corporation, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 8, 1956.
   PER CURIAM.

Affirmed.


text:
    Jerome B. COTTEN, Appellant, v. Lenore W. COTTEN, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 10, 1956.
   PER CURIAM.

Affirmed.


author: THOMAS, Justice.

text:
    BAHIA MAR CATERERS, Inc., a Florida corporation, Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 6, 1956.
    Rehearing Denied March 13, 1956.
    Earnest, Lewis, Smith & Jones, West Palm Beach, for appellant.
    C. A. Hiaasen, J. M. Crum, K. Odel Hia-asen, McCune, Hiaasen & Kelley, Fort Lauderdale, for appellee.
   THOMAS, Justice.

This matter was presented on what the appellant described in its notice as an “ap1-peal * * * to -review the Partial Summary Final Decree” in which the chancellor adjudicated a principal feature of the controversy, namely, the, existence under Sec: 83.08(2), Florida Statutes 1949, and F.S.A., of a statutory lien upon the appellant’s property for the rental due by appellant’s lessor to the appellee. The chancellor observed that “[ojther questions herein, and not decided, either require the taking of proof or notice to other parties [sic]” and he reserved jurisdiction “for the purpose of entering such further orders as may become necessary.”

It is obvious that neither the chancellor nor the appellant considered the decree a final disposition of the entire cause, and the appellee .seems to have had the same thought, yet the procedure followed by the appellant subsequent to the notice was that prescribed by the rules governing appeals. The appellant filed assignments of error. The appellee filed no assignments of error but he challenged in his brief the propriety of that part of the decree in which the chancellor refused to apply Sec. 83.06, Florida Statutes 1949, and F.S.A., providing for double rental in certain circumstances.

It is appellee’s attitude that the decree in this case is a “ ‘partial summary final decree’ ” and that “[s]uch a decree has heretofore been termed by this Court as a ‘split decree’ ” to quote the opening statement of its brief. The cases ’ cited for the' term “split decree” are Lewis v. Lewis, Fla., 66 So.2d 260, and Beverly Beach Properties v. Nelson, Fla., 68 So.2d 604.

•The-ease here has taken an unusual turn-. The appellant represents that the “entire litigation has now become moot as the City’s claim for rent has been or will be paid out o.-f assets in the hands of the Trustee” in bankruptcy, of. Bahia Mar, Corporation, the original lessee.

It is our view that there is -no obligation on the part of this court to discuss and decide this complex litigation when the one who brought it here insists that it is moot and when his adversary defends the part attacked, and has not challenged by cross assignments' the part it considers unfavorable. ...

■ So the appeal is dismissed without prejudice to presenting anew the question of liability of' sub-lessees if it develops that there are insufficient funds in the trustee’s hands to discharge the city’s claim for rent.

DREW, C. ' J., and HOBSON and .THORNAL, JJ., concur.


author: TERRELL, Justice.

text:
    Lester A. HALL, Petitioner, v. Nathan MAYO, as Prison Custodian of the State of Florida, Respondent.
    Supreme Court of Florida. Special Division A.
    Sept. 16, 1955.
    Lester A. Hall, in pro. per.
    Richard W. Ervin, Atty. Gen., and Moie J. L. Tendrich, 'Asst. Atty. Gen., for respondent.
   TERRELL, Justice.

Petitioner was tried and convicted on two informations charging larcency of cattle. He was sentenced to two years imprisonment at hard labor on each information, they having been consolidated for trial. Nothing was said in the judgments as to whether sentences should run concurrently or consecutively. Writ of habeas corpus was granted on the contention that petitioner' was held illegally contrary to Section 921.16, F.S.A. Return of respondent shows that petitioner by appeals to this court and certiorari to the Supreme Court of the United States stayed his commitment until January 25, 1954, and has not served, including all gain time allowable, either of his two year sentences.

There is no showing that respondent will not follow the provisions of Section 921.16, F.S.A., when petitioner becomes entitled to its benefits. The presumption is that officers will do their duty as the law directs them. Miami Retreat Foundation v. Ervin, Fla.1953, 66 So.2d 667; Clements v. Starbird, 152 Fla. 155, 12 So.2d 578. Petitioner has not carried the burden of showing that he is entitled to claim any of the benefits of Section 921.16, F.S.A.

It follows that his application for habeas corpus was premature. Petitioner is accordingly remanded to the custody of the respondent and the writ of habeas corpus is quashed.

It is so ordered.

DREW, C. J., and ROBERTS and SE-BRING, JJ., concur.


text:
    Donnalita COOKSEY, Appellant, v. George ZIMMERMAN, Appellee.
    Supreme Court of Florida. Special Division A.
    Oct. 5, 1955.
    Rehearing Denied Nov. 1, 1955.
    ■ Newbold & DuMond, Miami, for appellant.

      John W. Fleming, and Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   TERRELL, Justice.

Appellee Zimmerman secured a judgment in the proper forum against Appellant Cooksey for $3,000 to cover damages for personal and property injuries growing out of an automobile collision'in Broward County. There was a counterclaim by defendant which was denied. A motion for new trial was overruled and defendant appealed. Appellee has moved to affirm the judgment under Rule 38 of the Rules of this Court, 30 F.S.A.

A motion to affirm the order, judgment or decree sought to be reviewed is proper wherl it is apparent that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. The motion to affirm may be combined with the motion to quash authorized by Rule 37 of the Rules of this Court and must recite clearly the matter on which it is based.

The only point for determination is whether or not the motion under review conforms to this pattern.

We think this question requires an affirmative answer. The points- raised on the appeal had to do with negligence, contributory negligence and excessiveness of the verdict. These were jury questions. We have examined the record carefully and there is no showing whatever that the jury was not advised as to its verdict or that it abused its discretion in disposing of the questions before it. It is accordingly manifest that the points raised are unsubstantial, require no further argument and being so, it was appropriate that appellee invoke the provisions of Rule 38 to. affirm the judgment appealed from.

The purpose of the motion to affirm the judgment is to provide a summary method for purging the docket of frivolous, unsubstantial or other appeals, that are short of merit. While the inquiry under Rule 38 is broader than it is under Rule 37, it contemplates only such an examination of the record and briefs as will disclose that the judgment appealed from is free from error. Joseph T. Miller Const. Co., Inc., v. Borak, Fla., 82 So.2d 147.

We think such an examination of the record in this case reveals that the motion to affirm was appropriate and is therefore granted.

It is so ordered.

DREW, C. J., and ROBERTS and THOMAS, JJ., concur.


author: THORNAL, Justice.

text:
    Victor KOSTECOS, Appellant, v. William H. JOHNSON, Jr., Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 3, 1956.
    Rehearing Denied March 14, 1956.

      Clyde H. Wilson and Early & Early, Sarasota, for appellant.
    Williams, Dart & Bell and W. T. Harrison, Jr., Sarasota, for appellee.
   THORNAL, Justice.

Appellant Kostecos, who was plaintiff below, seeks reversal of a summary judgment in favor of appellee Johnson, who was defendant below, in an ejectment proceeding.

Appellant Kostecos bases ■ his claim of title on a Master’s Deed executed pursuant to a final decree iñ a foreclosure of delinquent drainage district taxes, under Chapter 298, Florida Statutes, F.S.A. Appellee Johnson bases his possession and claim of title on a deed from Sarasota County issued under the Veterans Homestead Act, Sections 253.351-253.356, Florida Statutes, F.S.A., the county having obtained its title pursuant to a foreclosure or so-called “quiet title” decree in a delinquent county ■ tax proceeding under Chapter 22079, Laws of Florida 1943.

An understanding of the problem presented by the appeal requires a statement of events in chronological order. On December 29, 1943, Sarasota County filed a proceeding under Chapter 22079, Laws of Florida 1943; to quiet and confirm its title to the land in question because of delinquency in the payment of 1940 taxes. Almost ten months later on August 7, 1944, Pearce Drainage District, a drainage district organized under Chapter 298, Florida Statutes, F.S.A., filed its complaint to foreclose delinquent drainage district taxes against the same land. The drainage district proceeded under Section 298.75, Florida Statutes, F.S.A., and caused to be published in a local newspaper a notice to “all persons, firms or corporations having any interest in or lien upon the lands described in this notice,” which included the land ,in dispute. The notice advised that suit had been filed and fixed a return date. There was no “personal” service and the county did not participate in the case. On April 3, 1945, the final decree was entered in the county suit vesting the fee simple title in Sarasota County. Two months later on July 6, 1945, a final decree was entered in the drainage district suit. On January 17, 1948, a Special Master’s Deed, pursuant to the drainage foreclosure final decree, was executed and delivered to 'the appellant Kostecos. The land apparently was unoccupied during most of this time but on July 17, 1953, Sarasota County executed the deed to appellee Johnson under the Veterans’ Homestead Act which requires the veteran to occupy and develop the land for a period of three years before he receives a deed. See Section 253.351, Florida Statutes, F.S.A. It is to be assumed therefore that Johnson entered possession at least three .years prior to July 17, 1953, and was in possession on August 21, 1951, when the complaint in ejectment in the appeal before.us was filed.

The ejectment suit proceeded through various preliminary stages until May 14, 1954, when Johnson filed a motion for summary judgment relying upon the title of Sarasota County as conveyed to him by the deed of July 17, 1953, and contending that this title was paramount and superior to the claim of title asserted by appellant under his . drainage district foreclosure Master’s. Deed.

Our consideration of the record on this appeal is complicated by'the fact that in entering a summary judgment for the appellee, the trial judge took judicial notice of the records in the county delinquent tax proceeding and in the drainage district' foreclosure proceeding. Apparently both parties agreed to this and the trial judge recited in his judgment that he had done so. Although no error is assigned on this proposition, both parties evidently agreeing that the procedure was correct, we are constrained to point out that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside-the record 'in the case before him. See Adams v. Adams, 126 Fla. 217, 170 So. 697, and Cassels v. Ideal Farms Drainage District, 156 Fla. 152, 23 So.2d 247. The case before us illustrates the sense of the rule.

The judgment recites that the trial judge took judicial notice of the entire contents of the records in the two delinquent tax cases. Undoubtedly he could conveniently call upon the office of the clerk of the court to bring the records before him and make them available for his examination in arriving at a judgment. Upon appeal, however, this court is not similarly situated and we are, therefore, obviously without the information contained in the two records in the Circuit Court of Sarasota County which may or may not have properly constituted the basis of the summary judgment that was entered because these records do not constitute a part of the record on appeal unless they were appropriately introduced in evidence either in the original or by certified copy and then included in the record sent to this court for consideration.

By directions to the clerk in the preparation of the record in this appeal, the appellant did have included in the record before us some parts of the records in the other two cases. The appellee did not object to this and we will, therefore, under the circumstances consider those portions of the records in these other two cases that have been so forwarded to this court. While we do'not approve this procedure, we will treat the portions of the records sent to us as having been forwarded here by the consent of both parties. At best these are only partial records but we cannot go beyond them in considering this appeal.

We come to a consideration of the merits of the matter presented by the appeal. Appellant Kostecos contended in the lower court and seeks reversal on the proposition that although the county tax suit was filed first, the drainage district final decree was entered two months after the county tax final decree and, being a later acquired original title from a new and independent •source, should take priority over the earlier title acquired by the county likewise from a new and independent source. This position is grounded on the proposition that at the time the delinquent tax suits were instituted, county tax liens and drainage district tax liens were equal in dignity, and, when the county foreclosed its liens and obtained the title by the final decree, it did so in recognition of the equality of 'the drainage district liens. Further, that the county foreclosure decree eliminated the lien status of the county’s position, changing it to a title status subject to the outstanding delinquent, drainage district liens that were not satisfied. Appellant recognizes that, because the county liens were equal in dignity with the drainage liens, it could not have eliminated the county’s interest while that interest was evidenced by delinquent tax liens only but asserts that when the county foreclosed its liens, it substituted therefor ■ a title under Chapter 22079, Laws of Florida 1943. The county, for all practical purposes, so the appellant asserts, “foreclosed itself into a lawsuit” and thereby subordinated its title as distinguished from its equal lien status to the outstanding delinquent drainage liens.

In relying on the county’s title the ap-pellee seeks affirmance of the judgment in his favor with the contention that the county’s title under the delinquent tax proceeding was a new and original title which could not be eliminated by the then pending drainage tax foreclosure suit and even if it could, appellee asserts the drainage tax suit proceeded without service of process of any kind or nature upon the county and, so far as the county was concerned, the final decree was obtained in contravention of the due process requirements of the state and federal Constitutions. He grounds this position on the proposition that the drainage lien foreclosure suit was brought particularly under Section 298.75, Florida Statutes, F.S.A., which makes no provision whatever for the service of process in any form or manner and, absent some requirement of due process in some form, the statute' under which the drainage district proceeded is unconstitutional and any decree obtained in any such proceeding, is necessarily without force and effect.

To bring the issue to a focal point, appellant replies that the drainage foreclosure proceeding was one in rem, against the land only and that service of process on persons interested in the land was unnecessary. In this view the land, being obviously within the jurisdiction of the court, is the res upon which the court acted in entering the decree and having jurisdiction of the res, the court was authorized to enter the decree so long as such decree was limited to the particular res (land) within the court’s jurisdiction.

At the time of the two tax foreclosure suits, county tax liens and drainage district tax liens were of equal dignity. See Section 298.41, Florida Statutes, F.S.A.; Sections 19 and 21, Chapter 22079, Laws of Florida 1943, F.S.A. §§ 194.53, 194.55; State ex rel. Groves v. Caruthers, 141 Fla. 736, 193 So. 849. The case before us is not affected by the 1947 amendments- to Chapter 22079, Laws of Florida 1943. See Chapter 24206, Laws of Florida 1947.

The instant appeal is governed by Section 194.53, Florida Statutes, F.S.A., Section 19, Chapter 22079, Laws of Florida 1943, which reads as follows:

“Upon the entry of the Chancery Decree provided in Section 36 of this Act, all rights, titles, interests in, or liens upon said property, except liens for general taxes, other than county tax liens, and municipal liens of equal dignity with county tax, shall be cut off and extinguished, and forever declared null and void, and the title to such lands when conveyed by the county shall be construed in all respects as a new, original title, subject only to such liens for general taxes of equal dignity to county liens for general taxes as are above excepted." (Emphasis ours.)

The effect of this act was that by the “quiet title proceeding” on delinquent county taxes, general tax liens of drainage districts and cities were not eliminated. However, no procedure was at that time provided for enforcing such drainage tax liens against the county after it acquired its title, although by Chapter 18315, Laws of Florida 1937, Section 196.08, Florida Statutes, F.S.A., the Legislature authorized cities to make the state and its counties and other taxing units parties-defendant in municipal tax lien foreclosures. Such authority, however, has never been extended to drainage districts. On the contrary, by the emphasized language of Section 194.53, Florida Statutes, F.S.A., quoted above, it was obviously intended that upon acquiring title in its quiet title proceeding, the county could thereafter convey an entirely “new, original title” to a purchaser but after the quiet title decree, the county could not be summonsed into court to defend its title against a drainage district tax foreclosure, there being no legislative sanction at all for such procedure and absent legislative authorization a county shares the state’s immunity from suit. Although Section 25 of Chapter 22079, Laws of Florida 1943, F.S.A. § 192.21 note, provides that nothing in that act should affect the lien or enforcement of taxes of any drainage district, neither said act nor any prior or other applicable act authorizes such enforcement against county-owned lands. Compare, as to State property, Section 192.27, Florida Statutes, F.S.A. So long as title remained in the county, the enforcement of liens of drainage districts remained in a state of suspension subject to being revitalized at such time as the county might dispose of its title to a person subject to suit. By the cited act the “equal dignity liens” were not cut off or “declared null and void” by the quiet title decree, but by operation of law resulting from the failure of the Legislature to provide a procedure for bringing the county into court and enforcement of such “equal dignity liens” of other taxing districts the right to foreclose them was suspended during county ownership of the “new and original title”, except as to cities under Chapter 18315, supra.

It should be remembered that at this point we are not here dealing with private rights. We are concerned with the competitive interests of two taxing units whose rights, property, powers and functions are subject to legislative control to the extent that private rights are not involved. In accord with this view, therefore, the Pearce Drainage District could not bring Sarasota County into court in a contest between drainage tax liens and county tax liens where the county owned title because as we have pointed out above, there was no procedure for doing so. If the conclusion seems strange, it is only because of the fact that at that time the Legislature had failed to foresee and make provision for the solution to this particular problem. The problem was resolved later by Section 1 of Chapter 24206, Laws of Florida 1947, amending Section 194.53, Florida Statutes, F.S.A. This amendment expressly relegated municipal and drainage district liens to participation in the proceeds of any sale of county acquired lands. In other words, by the later statute, after the county acquired title, the liens of the other taxing districts were transferred from the land to the proceeds of the sale of the land. The rule which we have applied to the drainage district in the case before us was similarly applied to municipalities prior to the enactment of Chapter 18315, Laws of Florida 1937, authorizing municipalities to bring the state or its counties into municipal in rem tax foreclosures.

In City of Miami v. Certain Lands, etc., 126 Fla. 781, 171 So. 798, 799, we held that under Chapter 15038, Laws of Florida 1931, F.S.A. § 173.01 et seq., the municipal in rem foreclosure act did not authorize cities to have adjudicated in the in rem foreclosure proceeding the rights of holders of outstanding tax certificates of equal dignity with those of the municipality. The reasoning of the opinion in the case last cited is applicable to the settlement of the contest between Pearce Drainage District and Sarasota County in the case before us. From City of Miami v. Certain Lands, etc., supra, we quote the following:

“As has been pointed out, chapter 15038, Acts 1931, creates a special in rem procedure, applicable to municipalities only, as complainants, and omits to provide for service of summons or constructive service of process against holders of tax certificates that are of equal dignity to those of the complainant. Hence the scope of the foreclosure is limited by-the act itself to foreclosing the owner only, and those whose claims are derived from, or subordinate to, the delinquent owner who has neglected to pay his taxes by reason whereof his lands are allowed to be foreclosed. So this is a proceeding in rem which can bind only the delinquent land as the rem, and not those who hold outstanding tax certificates on it that are of equal dignity t.o the tax claims of the municipality foreclosing under 'said chapter 15038.
“Chapter 15038, Acts 1931, is designed and framed to provide an in rem procedure that according to its terms can only be effective for adjudicating and cutting off the delinquent title holder, the mortgage holder, or other persons subordinately interested in the delinquent land itself, 'as distinguished from adverse tax certificate holders who have rights in the delinquent lands that are equal in dignity to the claims in suit. This is so because the Legislature has the constitutional power to provide a judicial process for cutting off, by an authorized in rem foreclosure against delinquent tax lands, the title holder, mortgagees, and other persons holding subordinate proprietary or lien interest in delinquent tax lands, when such interests are admittedly inferior in dignity to the lien for taxes.
“But the Legislature would have no right to thus impair and cut off adverse tax certificate lienholders possessing liens of equal dignity to those of the complainant municipal lienor that is authorized to prosecute in rem foreclosures under chapter 15038, supra, ■only against the delinquent taxable interests in the tax encumbered lands involved.” (Emphasis, ours.)

It should be noted from the quotation that we took note of the proposition that the act under which, the municipality operated made no provision for service of process in any form upon the holders of tax certificates of equal dignity with those of the complaining city. Similarly, the drainage district in rem foreclosure act, Section 298.75, Florida Statutes, F.S.A., makes no provision for the issuance and service of .process in any form .upon a.county holding liens of equal • dignity with the drainage district liens. We have not overlooked the contention .. of appellant that when .the drainage district obtained its final decree, Sarasota County no longer- held liens against the land but actually held a title which appellant contends was subordinate to the drainage district liens. However, the reason for the rule ■ announced in City, of Miami v. Certain Lands, etc., supra, is equally applicable where a county converts its liens into title and actually holds title to the land as the basic security for the payment of taxes due to the government by the former tax delinquent' title holder. The equality of position held by the governmental unit (the county) is not destroyed by substituting title to the land itself for the .'liens it formerly held absent legislative action so providing. ' No such action was here apparent.

Under the doctrine of Smith v. City of Arcadia, 147 Fla. 375, 2 So.2d 725, 135 A.L.R. 1458, the appellant contends for the so-called “last deed rule;” that is, that he received his new and original title subsequent to the county and therefore when his subsequently acquired deed was issued, he took a brand new title that eliminated the previously obtained county title.

' A casual examination of Smith v. City of Arcadia, supra, might- suggest support for appellant’s position. However, a more cautious study will reveal that it was a contest between a city- tax foreclosure deed and a subsequently acquired state and county tax deed obtained in accordance with statutory administrative procedures then in vogue. This court properly held that the city in its foreclosure proceeding had failed ,to make the state and county parties-dn-fendant (as it could have done under Chapter 18315, Laws of Florida 1937) arid on the contrary the city had due notice of the application for state and county tax deed and failed to redeem. Consequently, the subsequently obtained tax deed took precedence. In the instant appeal, the situation is entirely dissimilar. Here the county was not made and could not be made a party to the drainage district tax foreclosure for the reasons above mentioned and under the act, pursuant to which the county acquired title, it obtained a title in due recognition of the outstanding drainage district tax but free from enforcement thereof until the county conveyed its title to a purchaser subject to suit by the drainage district. The drainage district suit was concluded and the Master’s Deed issued to appellant long prior to the ultimate conveyance by the county to the appellee Johnson.

Appellant also relies on Trustees of Internal Improvement Fund v. Southwest Tampa Storm Sewer Drainage District, 5 Cir., 142 F.2d 637, certiorari denied 323 U.S. 732, 65 S.Ct. 69, 89 L.Ed. 587, to support its contention that when Sarasota County obtained its title by the -“guiet title” decree, it thereby lost its liens and automatically elevated the drainage district liens to first liens against the lands. In a measure the contention is sound but it does not lead to the conclusion that the subsequently entered drainage district final decree eradicated Sarasota County’s title. In the case last cited the Trustees of Internal Improvement Fund had lost their title as the result of the exercise of the sovereign power of eminent domain by the Federal Government and the contest was not over title to the land but over the proceeds of the court deposit evidencing the amount paid by the Federal Government for the land. It was not an effort to establish a title to the land superior to the state. The rule of this case might apply if the cause before us were a contest over the proceeds of the purchase price paid by Johnson to Sarasota County, but this is not the case.

In summary, our conclusion is that under'the statutes in force at the time the county obtained its quiet title decree and the drainage district obtained its foreclosure decree, the county converted its lien into a title which was taken in recognition of the outstanding delinquent drainage district liens but not subject to enforcement of the liens in an action against the county itself. When the county took title, enforcement of the drainage district liens was placed in a state of suspension until the county disposed of the title, whereupon the drainage district could then enforce its liens against the purchaser from the county. Ruling as we do, it becomes unnecessary to pass on the constitutionality of Section 298.75, Florida Statutes, F.S.A., as contended for by appellee. The courts will not subject a legislative enactment to the test of the organic law unless a correct determination of the particular case makes it essential.

Having determined that the trial court ruled correctly, the judgment appealed from is

Affirmed.

DREW, C. J., O’CONNELL, J., and CRAWFORD, Associate Justice, concur.


author: ROBERTS, Justice. THOMAS, Justice

text:
    Rochelle PEGUENO, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    Feb. 8, 1956.
    Rehearing Denied March 14, 1956.

      Branch & Goff, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen,, and Bart L. Cohen, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

In this appeal from a judgment of conviction in a criminal case, the controlling question is whether the evidence introduced by the State in support of its charge was obtained by an unlawful search and seizure. The arresting officer who made the search was armed with a'search warrant; but for reasons not necessary here to relate the case must be decided as though the appellant was arrested and a search made of his premises without a warrant. If the arrest was lawful, then the search was lawful under the well-settled rule that a search may be made as an incident to a lawful arrest. Brown v. State, Fla. 1950, 46 So.2d 479, and cases there cited. And, in our opinion, the circumstances here were such as to justify the officer in arresting the appellant without a warrant.

The appellant was charged with a violation of Section 562.32, Fla.Stat.1953, F.S.A., which denounces the “removing, depositing or concealing” of untax-paid liquor. It is settled that “moonshine” whiskey is within the- terms of the Act. State v. Ellis, Fla.1955, 78 So.2d 729. The arresting officer was a supervisor of the State Beverage Department. He had been advised by an agent of the Federal Alcoholic Tax Unit that1 a moonshine still was in operation on the premises occupied by the appellant. He went to the premises with his informant and smelled the odor of fermenting mash. He testified that he had had experience in arresting defendants in the moonshine business; that fermenting mash has a distinct odor; that “there is nothing else in the world I have ever encountered that smells like it.” It seems to us that he was well qualified as an expert in this field and that the trial judge (who tried the case without a jury) had every right to believe his testimony in this respect. He said that after he got up to the house, the defendant came out on the porch; that he told the defendant he was an agent of the State Beverage Department and wanted to search the premises; that the defendant said, “Help yourself. Go right ahead;” that he asked the defendant how many barrels he had, and the defendant said he had “right at 100 barrels”; that after the defendant admitted he had a still, he arrested him, and that he then made a search of the premises, finding the evidence which is here claimed to have been illegally obtained.

We think that, in all of these circumstances, the arresting officer had “reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it”, Section 901.15(3), Fla.Stat.1953, F.S.A., so as to justify his arrest of defendant without a warrant. And since the arrest without a warrant was lawful, it follows that the search made incidental thereto was of the same character, even though the search warrant could not be relied upon at the trial in support of the search. Brown v. State, supra, 46 So.2d 479. As stated in Melton v. State, Fla., 75 So.2d 291, 295:

“The fact that at the time of such arrest the arresting officer may have in his hands an invalid search warrant will not vitiate a search made under such conditions, for the search will have been made under lawful circumstances authorizing a search as incidental to a lawful arrest without warrant, and his possession of the invalid search warrant will be without legal significance.”

We are cognizant of the fact that this court has held that the odor of whiskey emanating from a truck is not sufficient to constitute probable cause that the truck is engaged in the transportation of untax-paid liquor, Byrd v. State, Fla., 80 So.2d 694, 698. But in that opinion the court, speaking through Mr. Justice Hobson on petition for rehearing, pointed out that there is a distinction between “the sufficiency as probable cause of odors of whiskey in relation to the crime of possession of untax-paid liquor, and the odor of whiskey mash in relation to the manufacture of liquor or the fermentation of mash for distillation or production of alcohol in a dwelling house”, quoting United States v. Seiler, D.C.Md., 40 F.Supp. 895, 896. As shown by the Seiler case, the rule in the latter situation is that “the odor of the whiskey mash emanating from a dwelling house, detected by experienced revenue officers, was in itself probable cause for a reasonable belief that the statutes were being violated.” While the Seiler case was concerned with the sufficiency of such evidence to constitute probable cause for the issuance of a search warrant, we think it also justifies a reasonable belief that the statute is being violated somewhere on the premises — although this fact alone might not justify the arrest of any person found on the premises. Cf. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. But where the occupant of the premises freely admits that he is the possessor of the still from which such odors are emanating, we think the officer would be derelict in his duty if he did not arrest the offender, then and there, even though he has no warrant of arrest; and that, as an incident to such arrest, he may lawfully search the premises, without a warrant, for the contraband whiskey.

For the reasons stated, the judgment appealed from should be and it is hereby

Affirmed.

DREW, C. J-, and TERRELL, SE-BRING, HOBSON and THORNAL, JJ., concur.

THOMAS, J., dissents.

THOMAS, Justice

(dissenting).

An information was filed in the Criminal Court of Record of Hillsborough County in which the appellant was charged in five counts with as many violations of the laws relating to intoxicating liquors. The case was tried before the judge who found the defendant guilty as charged, imposed a sentence of three years in the state penitentiary on the first count and deferred sentence on the others.

All the questions posed by the appellant arise from rulings on the admissibility of testimony based on a search of the appellant’s premises by the arresting officer.

About four months before the trial, the appellant filed a motion to quash the warrant purporting- to authorize a search of his property, and to suppress the evidence obtained in the search the officer conducted. The judge heard testimony relevant to the origin and execution of the warrant and from the record of this hearing a picture of the incidents may be drawn. It was stipulated by counsel representing the state and the defendant that no search warrant affecting this appellant had been issued by the Circuit Court or the Criminal Court of Record and none had been returned or filed in either of these courts. The appellant was then shown a copy of a search warrant and asked whether or not on a certain date he was in possession of the property described in it. He said he was and that a “raid” had been made on the property at that time by a deputy of the sheriff and an agent of the State Beverage Department.

The appellant related that he heard a car approach and went to his door where he was confronted by an agent of the department holding a gun who said T have got a warrant here for you.’ ” The agent read the warrant, gave appellant a copy and searched the premises which the appellant occupied as his home.

At the conclusion of the hearing, the judge granted the motion to quash and to suppress the evidence.

Since the original affidavit and warrant were never introduced, it is impossible to determine the validity of the warrant at the time it was served, so in the state of the record I assume that the validity of the search itself and the admissibility of the evidence it produced must depend on the power the officer had, without any warrant,, at the time of the searching. It is necessary to continue the exploration because the judge despite the order quashing the warrant and suppressing the evidence, allowed testimony about the seized contraband to be introduced when the appellant was tried upon the information.

The appellant contends that the order made before trial rendered the evidence thereafter inadmissible and he cites a decision of the Kansas City Court of Appeals, State v. Windsor, Mo.App., 289 S.W. 663, based on a decision of the Supreme Court of Kansas, State v. Zugras, 306 Mo. 492, 267 S.W. 804, in which it was held that once the evidence in such cases is suppressed on motion made in advance of trial the matter becomes res judicata and may not be reopened.

We cannot adopt an absolute rule that when a search warrant has been stricken and the evidence produced under it has been suppressed, the prosecution ends then because we have ruled to the contrary. In Brown v. State, Fla., 46 So.2d 479, this court dealt with a similar situation. Before the trial of a defendant on the charge of violation-of the laws against lottery operations the search warrant was quashed because the affidavit on which it was based was fatally defective. At the trial, the sheriff testified that he had trustworthy information that the defendant was then committing a felony, namely, possessing and transporting lottery tickets. Notwithstanding his prior order, the judge admitted in evidence the property seized on the invalid warrant. In other words, the officer was shown to have the power to seize as an incident to lawful arrest even though at the time he had had no search warrant at all. About a year ago the principle expressed in the cited case was followed in Turner v. State, Fla., 74 So.2d 891.

I cannot, therefore, accept the appellant’s view that .the first ruling became res judicata, but I have examined the record to see if the facts developed show that the officer had the power to seize without a search warrant the contraband about which testimony was eventually used against the appellant, that -is to gauge, by the criterion fixed in Brown v. State and Turner v. State, supra, the right of the officer to act as he did.

The agent, or supervisor, of the Beverage Department and the man who accompanied him, whether he was a representative of the Federal Alcoholic Tax Unit or a deputy sheriff I cannot tell, drove toward appellant’s place and about 50 or 75 yards from the house found their way obstructed by a wire gate. Although the agent said that when he got out of the car to open the gate; he smelled mash, which from the experience he had gained by arresting defendants in the moonshine business, he recognized as emanating from fermentation in the manufacture of illicit liquor, the facts as I construe them did not warrant his making an arrest on that information alone. True, he said the odor was distinct; that “[T]here is nothing else in the world I have ever encountered that smells like it,” and said that an agent of the Federal Alcoholic Tax Unit told him about the operation, but the witness admitted that at the time he detected the odor, he could see nothing being done illegally, and also admitted that everything taken was seized by virtue of the search warrant.

Obviously, the officer was entering upon his mission solely because he had with him a search warrant. It was the excursion under this warrant that took him to appellant’s gate. All his actions thereafter were plainly motivated by the authority he was sure he had by reason of the writ, and just as plainly the odor he smelled was an afterthought. The agent was the sole witness and his story confirms the view that he was operating only by virtue of the warrant for he said “Well, I had the search warrant. I went on in there, whether I smelled it or not, but I did smell it.”

Of course, the state could not rely at the trial on the search warrant which had then been stricken. The bare facts irrespective of the warrant would have to establish the justification for the arrest and attendant search. The trustworthiness of the officer’s information would have to depend on the simple statement that the agent was told that morning, or possibly the day before, that moonshine was being made at the-place, which might be substantiated by the-odor he noted, but I think this amounts to-little because of the absence of convincing-evidence that he was sufficiently familiar with the subject to spot an illegal still by the smell. In reply to a question how he-knew of the operation, he said: “Mr. Sills: [his companion] told me of it,” and “I got it from agent, from the Federal Alcoholic-Tax Unit.” From such a meager showing the conclusion that he had trustworthy information that a crime was being committed was too strained for me to accept.

Though odors may not alone justify a search without a warrant, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, evidence of them may, when they are identified by one qualified unerringly to recognize them, as emanating from a “forbidden substance” become a sufficient basis for a search warrant. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.

In the majority opinion the author quotes from the opinion in United States v. Seiler, D.C.Md., 40 F.Supp. 895, as follows, “‘the odor of the whiskey mash emanating from a dwelling house, detected by experienced revenue officers, was in itself probable cause for a reasonable belief that the statutes were being violated.’ ” The author observes that the court dealing with the cited case was concerned with probable cause as a basis for a search warrant but that he thinks it would also justify “a reasonable belief that the statute is being violated somewhere on the premises * * *.” He then suggests a comparison with Johnson v. United States, supra [333 U.S. 10, 68 S.Ct. 369], But in that case the very opposite opinion is expressed: “Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the [Fourth] Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.” So an officer cannot rely on his sense of smell, decide that it is unerring, determine the existence of probable cause from the odor, functioning as a neutral magistrate, and then as an arresting officer, proceed to arrest and justify the • search' as incident to the arrest. The majority opinion invites the evil that the Supreme Court of the United States condemns.

To bolster the position of a majority of the court, two circumstances are stressed, first the so-called invitation to search, and second the statement made to the beverage agent by the agent of the Alcoholic Tax Unit. I can attach no real importance to either. When a man is confronted at the door of his home by an officer, who waves a warrant and expresses a purpose to search, does the homeowner waive the protection of the Constitution by saying “Help yourself, Go right ahead”? If that is the law then the homeowner must stand mute or resist. As for the statement of the agent, it was nothing but hearsay.. There may have been a combination of circumstances, especially if the agent had given the basis for his statement, that would have convinced an impartial magistrate to issue a search warrant, Perez v. State, Fla., 81 So.2d 201, but I cannot agree that they could be used as a foundation for an arrest without warrant.

An impartial magistrate would have decided whether or not the witness who claimed he recognized the smell as coming from mash being used in the illegal manufacture of liquor was so qualified by experience that his statement was reliable.

If the search warrant is disregarded, then there was no authority to cause appellant’s door to be opened and until it was opened, the officer did not know who was within. The knowledge that appellant was in the house was gained only after the appellant answered the officer’s call or heard the officers approach. It was only then that the arrest was made. So, as was said by the author of the opinion in Johnson v. United States, supra, where the facts resembled very closely the ones in this case, the state “is obliged to justify the arrest by the search and at the same time to justify the search by the arrest.”

I am unable to agree with the majority opinion so I dissent.


author: O’CONNELL, Justice.

text:
    Arthur TREISTER, Appellant, v. Mamie PACETTY, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 22, 1956.

      Leonard E. Treister, Miami, for appellant.
    L. Earl Curry and George J. Sliamas, Miami, for appellee.
   O’CONNELL, Justice.

The appellant, Arthur Treister, sought by his complaint in the court below to obtain specific performance of a contract for sale of realty between himself, as buyer, and the appellee, Mamie Pacetty, as seller. The answer by Pacetty simpy denied the agreement and without further pleading or proof, she filed motion for summary final decree. Affidavits by plaintiff and another, offered to sustain his bill, were not controverted by counter-affidavit or other evidence, and the facts appearing therefrom, to which the court was necessarily limited in granting summary decree for defendant, were as follows:

Pursuant to a listing of the property in question, owned by the appellee Pacetty, the appellant’s agent and broker, David B. Cameron, arranged a sale to appellant and executed on his behalf a deposit-receipt agreement which forms the basis for this litigation. At the time of the execution of this agreement, one Robert M. Brown exhibited a general power of attorney from the owner, the appellee, which instrument had been recorded in Georgia, and he, Brown, placed the appellee’s signature upon the agreement, without appending his own name as agent or otherwise indicating the fact of agency in execution of the contract for the seller,'Pacetty. A certified copy of the recorded power of attorney was filed by .appellant. It was not revoked until several months after the date of the agreement sued upon and no question has been raised as to its sufficiency to authorize execution of contracts of the general nature involved.

The simplé issue presented, therefore, is whether or not a duly authorized attorney-in-fact can bind his principal by executing a" contract in the name of the principal alone, without any indication of the fact of agency upon the face of the instrument. The point of law is not settled by any precedent in this jurisdiction, and there could appear to be some conflict in the cases arising elsewhere. In considering the principles and authorities, it should be noted at the outset that in the instant case there is no contention of fraud or deception, and the sole concern is with the validity of the instrument vel non, as between the original parties who fully disclosed the fact of agency at the time of execution of the contract but did not incorporate same into its written terms. Upon the facts above recited no question could be raised or decided, of course, as to rights of third parties or any effect the recording acts might have in such instances.

The rule with respect to a slightly different situation, where reference to the fact of agency appears in the instrument but execution is accomplished by the agent’s signing his principal’s name alone, is clearly to the effect that the principal will be bound. 2 Am.Jr., Agency, Sec. 247, p. 200; 2 C.J.S., Agency, § 128(b)(2), p. 1352; Story on Agency, Sec. 147. A study of representative cases involving those facts, as well as the numerous decisions sustaining liability upon negotiable instruments in these circumstances, discloses that although such authorities may be factually distinguishable, their rationale is fully applicable and controlling in the present case. Deakin v. Underwood, 37 Minn. 98, 33 N.W. 318; Tiger v. Button Land Co., 91 Neb. 433, 136 N.W. 46, 41 L.R.A.,N.S., 820; Kiekhoefer v. United States Nat. Bank, 2 Cal.2d 98, 39 P.2d 807, 96 A.L.R. 1244; Morlet v. Maus, La.App., 170 So. 392. Anno. 96 A.L.R. 1251. The provision of the ■Negotiable Instruments Law upon the point is general in nature, stating simply that “the signature of any party may be made by a duly authorized agent”, and that his authority “may be established, as in other cases of agency.” Section 674.21, F.S. 1953, F.S.A.; Sec. 19, N.I.L., Vol. 5, Uniform Laws Ann. There is accordingly no real basis for distinguishing cases decided under that law, nor any other statutory basis for special classification of an instrument involving real property in the factual situation at bar. Cf. Kiekhoefer v. United States Nat. Bank, supra.

As expressed by an eminent text authority in the field, while the early contra case of Wood v. Goodridge, 1850, 6 Cush., Mass., 117, 119, 52 Am.Dec. 771, upon which ap-pellee relies, has much to commend it as a matter of better practice, the rule so broadly stated in that opinion is not supported by later cases nor can it be' sustained on principle: “While the rule of ‘Wood v. Goodridge’ is undoubtedly well founded in convenience and propriety, yet it is difficult in reason to perceive why, even in those cases where nothing would ever appear upon' the face of the instrument to indicate it, it may not be shown by evidence aliunde that it was in fact executed by an agent. It cannot be said that this is to contradict, add to or vary the deed by parole evidence, for its legal effect remains the same and it is nonetheless afterward what it purported to be before, the deed of the principal. Neither can it be said thaf in one case there is, while in the other there is not, evidence of the agency. In either event, the agency must be proved as a fact. It cannot be established by mere recitals of authority or by any pretense of acting in that capacity.” Mechem on Agency, 2nd ed., Vol. 1, Sec. 1118, and pp. 803, et seq., quoting Forsyth v. Day, 41 Me. 382: “It is difficult to perceive any sound reason why, if one man may authorize another to act for him and bind hint, he may not authorize him thus to act for him and bind him in one name as well as in another. As a matter of convenience in preserving testimony, it may be well that the names of all the parties who are in any way connected with a written instrument, should appear upon the instruments themselves, but the fact that the name of the agent by whom the signature of the principal is affixed to an instrument appears upon the instrument itself, neither proves' nor has any tendency to prove the authority of such agent. That must be established ali-unde whether his name appear as agent or whether he simply places the name of his principal to the instrument to be executed.”

It is the opinion of this Court that, as between the original parties and where the recording acts are not involved, a contract executed in the name of a principal by a duly authorized agent, acting within the scope of his authority, is binding upon the principal, although the fact that the agent acted for the principal is not apparent from the instrument itself.

For the reasons stated, the decree appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

DREW, C. J., TERRELL, J., and CRAWFORD, Associate Justice, concur.


text:
    MALING CORPORATION, a Florida corporation, and Malvine F. Lavine, a widow, Appellants, v. LADAN CORPORATION, a Florida corporation, Appellee.
    Supreme Court of Florida. Division A.
    Feb. 22, 1956.

      Herman Grayson, Miami Beach; for appellants.
    Danton & Lazar, Miami Beach, Henry M. Sinclair, Don G. Nicholson, and Sinclair & Nicholson, Miami, for appellee;
   THORNAL, Justice.

Appellants Maling Corporation and Lavine seek reversal of a decree dismissing with prejudice their complaint which prayed rescission and cancellation of an agreement.

Samart Realty Corporation held a 99-year lease on a parcel of land on the Northeast corner of 79th Street and N.E. Second Avenue in Miami. There was a private alley over the east 10 feet of the land to the rear of a building. Defendant Ladan Corporation had a 99-year lease on the parcel immediately to the north, the east half of .which was vacant..' On April 2, 1951, Samart for itself and its successors and assigns granted to Ladan, its successors and assigns, the right to common usage of the 10-foot private alley for ingress and egress “so long as the present improvement upon the property and premises” of Samart remains. Samart thereafter assigned its 99-year lease to appellant Maling Corporation, and appellant Lavine is a tenant of Maling. By the complaint it is sought to cancel the agreement between Samart and Ladan on the ground that it was obtained by fraud of one Arthur Lavine, an officer of Ladan, who allegedly at the time of the agreement orally promised Samart that it and its successors and assigns could use the vacant .east half of the Ladan property for a parking lot so long as the east 10 feet of the Samart lot remained open for passage. No written agreement to this effect was executed. It is alleged that Arthur Lavine at the time he made the promise never intended to carry out the agreement and that Ladan now denies the plaintiffs the use of its land for parking, wherefore, termination of the right-of-way over the 10-foot strip is sought. The Chancellor dismissed the amended complaint on motion, hence this appeal.

Numerous questions are propounded. We feel that an answer to one of them will end'the argunjent and sustain the Chancellor. It should be observed. that Samart, now dissolved, is not complaining and is not a party to the cause. The plaintiffs obviously took with notice of the Samart-Ladan agreement. Cancellation of the agreement is sought because of the alleged fraud practiced on Samart, not upon Mal-ing, by one Arthur Lavine who is likewise absent as a party to the cause.

In order to enable a person to secure redress for alleged fraud, it must be shown that the complaining party relied on the false representations to his injury and damage. At no place in the complaint is it alleged that either of the plaintiffs relied upon or had a right to rely upon the alleged false representations or promises made to Samart Realty Corporation by Arthur Lavine. Moreover, we have consistently held that relief in equity against fraud is personal to the one defrauded. See Putzer v. Homeridge Properties, Fla. 1952, 57 So.2d 848.

We have not overlooked the corporate stock purchase agreement of February 28, 1951, between Arthur Lavine and Sterling and Malvine Lavine. However, we find no allegations of fraud with reference to that agreement, and although it makes reference to a subsequent provision of a common right-of-way over the 10-foot strip in question, it does not in any place provide for the claimed parking privileges on the lot of appellee. So far as this record reveals the agreement herein sought to be cancelled is perfectly consistent with the February 28, 1951, stock purchase agreement between the members of the Lavine family as individuals.

Whatever the rights between Samart and Ladan might be, it is clear that Samart’s rights, if any, never became personal equities of either of the appellants, enforceable in a proceeding such as the one before us. Although appellants styled their complaint' as an “amended bill for declaratory decree, rescission and cancellation” their allegations reveal that it is purely a bill for rescission and cancellation of the right-of-way agreement' of April 2, 1951. They fail to reveal by their complaint such doubt as- to their position as to bring them within the provisions of Chapter . 87, Florida Statutes, F.S.A. (Declaratory Decree Act).

The amended complaint having failed to state a claim upon which' relief could be granted, the Chancellor properly sustained the motion to dismiss, and his decree is, therefore,

Affirmed.

DREW, C. J., and TERRELL and HOB-SON, JJ., concur.


author: O'CONNELL, Justice.

text:
    Carl Chester FIELDS, also known as Harry Gordon, also known as Harry Sitamore, also known as Ervin Siegel, also known as Harry Sidamore, also known as Thomas Green, also known as Jerry Lietel, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.

      James W. Moore, Coral Gables, for appellant. ■ "
    .• Richard W.. Ervin, Atty. Gen., and Reeves Bowen,- Asst. Atly. Gen.; for appel-lee.
   O'CONNELL, Justice.

The basic legal issue upon which this appeal turns is one not previously, determined in this jurisdiction: Whether an adjudication under the habitual offender law, Section 775.09, F.S.1953,’ F.S.A., can be predicated upon a prior felony conviction after a full, complete and unconditional pardon has been granted the offender therefor. Such, in brief, is the situation in the cáse at bar, in" which appellant’s one-yeár .sentence for breaking and .entering, with intent to commit grand larceny j has been set "aside and a new sentence to. a term of twenty years’ imprisonment imposed, based upon an information alleging an earlier conviction. for the same offense more than twenty years previous. The fact of the intervening pardon was duly urged by appellant prior,tó and during the course of the trial. Compare Henderson v. State, 55 Fla. 36, 46 So. 151.

The only indication in our cases as to what might be the effect of a pardon in these particular circumstances is the comment in the case of Henderson v. State, supra, that if, as appellant contended, the par’don' granted him did in fact wholly absolve1 him from the former conviction upon a second trial and conviction for the same crime, “their such pardon .constituted a defense in mitigation of the penalty at the trial for the new- or second offense that should haye been proven at the trial * :* * .” • 46 So. at page 152, Henderson v. State, supra. The- rule thaf a pardon does not preclude consideration of a criminal conviction in disbarment proceedings, of as grounds for the discretionary ruling of a board empowered to revoke professional licénses, -would not appear to be control-, linglin the present case, involving as it does a criminal proceeding- in which the fact- of a prior conviction is .given án> absolute and conclusive effect in determining the sentence to be imposed upon one ■ thus characterized s.s ■ an “habitual” offender. Sec. 775.09, supra; Page v. Watson, 140 Fla. 536, 192 So. 205, 126 A.L.R. 249; State v. Snyder, 136 Fla. 875, 187 So. 381.

The problem has been much discussed. by the courts of other states, and there, is a clear conflict, of authority on the point. The cases upon which appellee relies, to sustain the judgment and Sentence in this cause,' are decided on a consideration, of the nature of habitual offender laws in general as not involving an imposition of additional punishment for the first .offense, but providing in effect that a former conviction be considered as a fact in the past history of an accused .and proved as “an element-merely in determining the-criminality of the Second offense.” People v. Carlesi, 154 App.Div. 481, 139 N.Y.S. 309, 313. See also People v. Biggs, 9 Cal.2d 508, 71 P.2d 214, 116 A.L.R. 205; Herndon v. Commonwealth, 105 Ky. 197, 48 S.W. 989; State v. Stern, 210 Minn. 107, 297 N.W. 321; Jones v. State, 141 Tex.Cr.R. 70, 147 S.W.2d 508; State v. Edelstein, 146 Wash. 221, 262 P. 622; Commonwealth ex rel. v. Smith, 324 Pa. 73, 187 A. 387. But in spite of the fact that such "statutes are mot regarded as imposing any additional penalty for the former conviction, so as to collide with the rule against double jeopardy or ex post facto laws, no argument can escape'the fact that to permit proof of a conviction under such circumstances, without regard to a pardon granted the offender therefor,' violates the rule of penal law repeatedly expressed in opinions of this Court"that á full and unconditional' pardon “removes all that is left of consequences of conviction.” Marsh v. Garwood, Fla., 65 So.2d 15; Singleton v. State, 38 Fla. 297, 21 So. 21, 34 L.R.A. 251.

The position taken by the courts in those jurisdictions which adhere more closely to the rule of the common law in this particular respect would appear to be in accord with our law and jurisprudence. Edwards v. Commonwealth, 78 Va. 39, and Richardson v. Commonwealth, 131 Va. 802, 109 S.E. 460; Prichard v. Battle, 178 Va. 455, 17 S.E.2d 393; Kelley v. State, 204 Ind. 612, 185 N.E. 453; State v. Martin, 59 Ohio St. 212, 52 N.E. 188, 43 L.R.A. 94; State v. Lee, 171 La. 744, 132 So. 219. Thé opinions in these cases fully discuss the issues involved, and a study of applicable provisions of the Constitution and statutes of this state would logically seem to require that their reasoning and conclusions be adopted. Art. IV, sec. Í2, Const.1885, F.S.A.; sections 2,01, 775.01, Florida Statutes, F.S.A.; Advisory Opinion to the Governor, 14 Fla. 319. II Cooley’s Blackstorie, 4th ed., p. 1528. “The true rule must be based upon the constitutional intention as to the effect of pardons and the legislative intention in enacting the Habitual Criminal Act. * * * In view of the force and effect of a pardon under the common law, and therefore under the law of this state, knowledge, and understanding of which must be imputed to the Legislature at the time the statute was enacted, we must construe their failure to expressly include pardoned .convictions in the- act as evidencing an intention that they should not be counted.” Kelley v. State, supra [204 Ind. 612, 185 N.E. 459.]

. Our reference to the above quoted portion of the case of Kelley v. State, supra, must not, however, ,be taken .to indicate that the Legislature could validly make pardoned convictions the basis for punishment under the habitual offender statutes of this State, since that question is not before us. Itye refer to that portion of the quoted opinion, only to indicate that in construing a similar statute the court there considered, as we do here, that inasmuch as the Legislature did not expressly include pardoned convictions in the Act, it" is taken-as evidencing an-intention on the part of the Legislature of'-this State that pardoned convictions not be counted as prior “live” felony convictions.

It is, therefore, the opinion of this Court that a felony conviction for which'the offender has received a full and unconditional pardon cannot be counted as a prior felony conviction under the provisions of our habitual offender-laws.

The judgment and sentence apealed from are therefore reversed: "

D.REW, C. J., and TERRELL and HOB-SON, JJ., concur. '


text:
    The STATE of Florida et al., Appellants, v. CITY OF AUBURNDALE, Florida, Appellee.
    Supreme Court of Florida. Division A.
    Feb. 22, 1956.

      Gunter Stephenson, Winter Haven, for appellants.
    Frank C. Stanley, Jr., Auburndale, for appellee.
   THORNAL, Justice.

.The State appeals from a decree validating an issue of revenue bonds proposed by the appellee City of Auburndale.

The bond ordinance adopted by the City reveals that it proposes to issue $180,000 of revenue bonds to be secured by and repaid out of the City’s share of the proceeds of the Cigarette Tax authorized by and levied under Florida Statutes, Chapter 210, F.S.A. The money derived from the sale of the bonds is to be used to improve streets, build sanitary and storm sewers, liquidate certain outstanding Cigarette Tax Certificates and to construct “a municipal building to house city offices.” The sole question presented by the appeal is whether the municipality can pledge the proceeds of the Cigarette Tax levied' under Florida Statutes, Chapter 210, F.S.A., to secure revenue bonds issued to construct a municipal building to house city offices.

Admittedly, the other municipal improvements to be financed by the bond issue are specifically authorized by Florida" Statutes, Section 210.03, F.S.A. By the cited statute, municpalities are authorized to expend the proceeds of the Cigarette Tax for numerous specified public improvements. After listing the' specific improvements, the Act then authorizes the cities to spend the proceeds of the tax for:

“ * * * such other state functions which are performed by municipal governments within their boundaries, and are otherwise performed by the state and county governments outside of the limits of incorporated municipalities.”-

We are confronted with the single question of whether the quoted language is ■sufficiently comprehensive to authorize the City to construct a municipal' building for housing, city-offices. From the recitals of the bond ordinance, we understand this to be what is commonly known as a city hall. The construction of a city hall is easily recognizable as an essential function of the local government. We judicially know that in order to house the many departments of a city government, it is appropriate, and in a measure essential, that office facilities be made available. We have so held with reference to a county court house in Posey v. Wakulla County, 148 Fla. 115, 3 So.2d 799.

In Town of Palm Beach v. City of West Palm Beach, Fla. 1951, 55 So.2d 566, 569, we expressed our understanding of the legislative intent in enacting the Cigarette Tax Act as follows:

“In Chapter 26,320, Laws of Florida 1949, Cigarette Tax F.S.A. § 210.01 et seq., the Legislature definitely recognized that in building, maintaining and preserving within the municipal boundaries buildings and facilities for the preservation and improvement of pub-lie health, welfare and safety of the citizens a state purpose was served even though carried on and maintained by municipalities.”

The ordinance before us specifically precludes any exercise of the municipal ad valorem taxing power to pay the revenue bonds to be issued. ■

The distribution of the proceeds of the Cigarette Tax, authorized by Florida Statutes, Chapter 210, F.S.A., js grounded on the principle that in exercising certain public functions at the local level, a municipality is to that extent exercising state functions for the benefit of the public in the local community. Within the orbit of the authority granted to it by the state, a' municipality is an instrumentality or auxiliary agency of the state established for the more convenient administration of local government. While it does not share the state’s sovereignty and enjoys only such powers as are specifically granted, or necessarily implied from powers specifically granted, nevertheless, subject to these restrictions, a municipal corporation is in substantial measure merely a projection of the state government to the local level. See Turk v. Richard, Fla.1950, 47 So.2d 543; and Loeb v. City of Jacksonville, 101 Fla. 429, 134 So. 205, 79 A.L.R. 459.

In the light of the foregoing principles, we are of the view that the construction of a municipal building for housing city offices is within the authority granted by Florida Statutes, Section 210.03, F.S.A., with reference to proper expenditures of the proceeds of the Cigarette Tax authorized 'by that Act.

No other errors are assigned.

Finding no error, the decree appealed from is affirmed.

DREW, C. J., and TERRELL and HOB-SON, JJ., concur.