Title: Pounds, Chief of Police, v. Darling
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Permanent Link: http://ufdc.ufl.edu/WL00004426/00001
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Title: Pounds, Chief of Police, v. Darling
Physical Description: Book
Language: English
Publisher: Southern Reporter
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Pounds, Chief of Police, v. Darling (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 12
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004426
Volume ID: VID00001
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judge's court of Duval county was a valid
service, it must be so by virtue of a statute
authorizing such service. If there is no such
statute, then necessarily the service was un-
authorized -and void, and the order brought
here by writ of error for review must be af-
firmed. Counsel for plaintiffs in error refer
to the various statutes on this general sub-
ject that have from time to time been enact-
ed in this state, but no useful purpose would
be served by discussing them here. It is
sufficient to say that there is no statute au-
thorizing the service of the writ of sum-
mons issued in the case referred to in this
proceeding from the county judge's court of
Duval county upon the sole defendant in
such case in Seminole county where he re-
By chapter 4397, Acts of 1895, Laws of
Florida (section 1397, General Statutes of
1906), passed immediately after the decision
in the case of Sanchez v. Haynes, supra, it
is provided that in all civil causes process
when issued out of any circuit court of this
state, shall run throughout the state, and
be directed to all and singular the sheriffs of
the state of Florida, and while section 2041,
General Statutes of 1906, making applicable
to county courts in civil cases, the rules of
practice, pleading, and procedure of the cir-
cuit courts, taken with other statutes, may
be regarded as sufficient warrant for the
conclusion reached in the case of Ingalls &
Bro. v. Merchants' Broom Co., 68 Fla. 369,
67 South. 106, which decision is relied upon
by defendant in error here, it is clear that

inquire into the facts to ascertain whether under
the circumstances the act or ordinance is a valid
exercise of legislative power.
To be valid, a city ordinance must be rea-
sonable and not in conflict with any controlling
provision or principle of law, should be within
the powers expressly or impliedly conferred, and
if any doubt as to the extent of a power attempt-
ed to be exercised by a municipality -out of the
usual range, or which may affect the common-
law rights of a citizen, it is to be resolved
against the municipality.
Nonnavigable bodies of water may be the
subject of private ownership.
A city ordinance, which forbids any one to
bathe in a lake lying wholly within the city lim-
its from which the city's water supply is drawn,
but which lake is the private property of persons.
whose lands border thereon and the city as ac-
quired no rights to the water of the lake by pur-
chase or eminent domain, is invalid as being
equivalent to depriving persons who own the /
lake of their property without just compensation 4
or due process of law.
Error to Circuit Court, Orange County;
J. W. Perkins, Judge.
Habeas corpus by L. E. Darling against J.
W. Pounds, as Chief of Police of the City of
Orlando. From a judgment discharging the
petitioner, defendant brings error. Affirmed.
Davis & Giles, of Orlando, for plaintiff in
error. Dickinson & Dickinson, of Sanford,
for defendant in error.

such statutes do not give effect to a writ of ELLIS, J. This case comes here by writ
summons issued out of a county judge's court of error to the judgment of the circuit court
in a civil action against a sole defendant be- for Orange county, discharging the defend-
yond the' territorial jurisdiction of such ant in error, upon habeas corpus, from the
court, and authorize the service of such pro- custody of the plaintiff in error as chief of
cess outside the limits of the jurisdiction of police of the city of Orlando.
the court issuing it. Darling was arrested upon a warrant is-
If a law of this kind is desirable, it is a sued by the city clerk of the city of Orlando,
matter for legislative, not judicial, considera- which charged Darling with a violation of an
tion. ordinance of the city by bathing in Lake
From what has been said, it follows that Concord. He was duly and regularly tried
the judgment should be affirmed. in the mayor's court of the city for the of-
It is so ordered. fense charged, was convicted, and sentenced
to pay a fine of $50 or be confined in the city
BROWNE, C. J., and TAYLOR, WHIT- jail for a term of 30 days. He was after
FIELD, and ELLIS, JJ., concur. such conviction and sentence taken into cus-
tody of the chief of police of the city, and
applied to the circuit court for his release on
habeas corpus. The judge of the circuit
POUNDS, Chief of Police, v. DARLING. court held the ordinance under which Dar-.
(Supreme Court of Florida. Jan. 21, 1918.) ling was tried and convicted to be invalid,
and ordered the prisoner to be discharged.
(Syllabus by the Court.) The petition for the writ of habeas corpus
1. HABEAS CORPUS =32-ScoPE OF W RIT- discloses the following facts: The city of
The validity of a statute or city ordinance Orlando is incorporated under a special act
may be tested upon a writ of habeas corpus. of the Legislature, and has the general pow-
2. HABEAS CORPUS -OFFENSE UNDER ACT OR ORDINANCE. the general law; that located within the city
Habeas corpus will not lie to test the guilthich covers an are
or innocence of one charged with an offense is Lake Concord, which covers an area of
under a valid act or ordinance, but the court will about 40 acres, and ranges in depth from a
=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indeaxe

I -- -- ---~- -- --- LlrPIIIIQIIP~W~;



"few feet to 10 or 15 feet";. that the lake is
not meandered and is owned by private par-
ties who own the lots bordering thereon;
at the petitioner owns a lot bordering on
the lake, which lot extends several hundred
( feet into the lake; that 'n April 1917 the
city of Orlando by ordinance prohibited bath-
g in the lake. and at the same time granted
to a private corporation, viz. Orlanao Wa-
ter & ght Company, a ri7at to draw water
From the lake in order to supply the city,
with which it had a contract. wit water for
municipal purposes; that neither the city
nor the water company had taken the waters
of the lake under any legal proceeding to
subject them to the public use, nor had any
compensation been allowed to the property
owners for the waters so taken; that in
SJuly, 1017, the petitioner went n bathing in
..the lake on his own premises, was arrested
for violating the city ordinance mentioned,
tried in the municipal court of the city, con-
victed, and sentenced; that one McIntosh
owns a lot bordering on the lake adjacent to
petitioner's lot, and conducts a bathhouse
thereon, charging a certain fee or compensa-
tion to every one who bathes in the water of
the lake on his' premises; that tu city of
Orlando does not own any of the 'waters of
tMe lae., nor any land borderinp thereon;
that for many years prior to the passage of
the ordinance prohibiting bathing in the lake
the people who owned lots bordering thereon
had bathed and swum therein.
The petitioner contends that the ordinance
of the city under which he was arrested and
convicted is void because it is an attempt to
take private property for public use without
just compensation, and without due process
of law. and thus violates both tne federal
and state Constitutions.
The plaintiff in error denies that proposi-
tion, and asserts that before that question
can be considered the court will have to de-
cide whether habeas corpus under the cir-
cumstances of this case is the proper way to
present it.
[1] In other words, the plaintiff in error
contends that the "reasons assigned for the
invalidity of the ordinance is that in the
particular case the petitioner owned the lot
bordering on and extending into the lake,
and that he did not leave his own and his
neighbor's property, upon which he had been
invited, a fact which might or might not be
a defense in the particular case; but, even
if a good defense, it does not render the or-
dinance invalid in all cases and under all
circumstances"; that the defense having
been interposed and the judgment having
been rendered against petitioner, he should
have taken his case to the circuit court by
writ of error, and not by habeas corpus, for,
says the plaintiff in error, the rule is well
understood that habeas corpus cannot be
made to take the place of a writ of error.
It must be admitted, however, that if the pe-

titioner had taken a writ of error with bill
of exceptions to the judgment of the mayor's
court, he could have in that case presented
the question of the validity of the city ordi-
nance, for he could have in his trial before
the municipal court presented the same facts
as were presented in his petition for habeas
corpus. But habeas corpus will lie to test
the validity of a statute or city ordinance.
See Hardee v. Brown, 56 Fla. 377, 47 South.
834; Ex parte Sims, 40 Fla. 432, 2.5 South.
280; Ex parte Theisen, 30 Fla. 529, 11 South.
901, 32 Am. St. Rep. 36; Harper v. Gallo-
way, 58 Fla. 255, 51 South. 226, 26 L. R. A.
(N. S.) 794, 19 Ann. Cas. 235. If then the
petitioner had attacked the validity of the
ordinance in the municipal court, he would
not have been precluded thereby from subse-
quently applying for a writ of habeas corpus
to test the validity of the ordinance, because
a judgment of conviction on a charge under
a void act is void. See Ex parte Knight, 52
Fla. 144, 41 South. 786, 120 Am. St. Rep.
191. In such case the acts charged constitute
no offense, and the court was without juris-
diction to pronounce sentence. See Ex parte
Bailey, 39 Fla. 734, 23 South. 552; Porter v.
State, 62 Fla. 79, 56 South. 406. The writ of
habeas corpus is a writ of right, and is some-
times issued upon very informal application,
as in the case of Ex parte Pells, 28 Fla. 67,
9 South. 833, where the court issued such a
writ upon the. receipt of a letter from a per-
son in jail. See Crooms v. Schad, 51 Fla.
168, 40 South. 497.
If the petitioner did confine his defense in N
the municipal court to the fact that while
bathing in the lake he did not leave his own
premises, that circumstance should not pre-
clude him after conviction in that court from
testing the validity of the ordinance upon
habeas corpus. We do not agree with coun-
sel for the plaintiff in error that the reasons
assigned, in the petition, for the invalidity
of the ordinance are the one fact that while,
bathing in the lake the petitioner did not
leave his own or his neighbor's property. He
distinctly alleges in the petition that "Lake
Concord and the water thereof is entirely
owned by private parties, who own the lots
bordering on said lake;" that the city does
not own any of the water in the lake, nor
does it own any lands adjoining the same.
It is also alleged that the lake is nonnaviga-
ble, that neither the city nor the water com-
pany has undertaken to condemn the lake by
any legal proceeding for public use, and that
when bathing in the lake those who exercise
that right were always properly appareled in
bathing suits as is the usual custom at bath-
ing places.
The question is clearly and definitely pre-
sented whether the city of Orlando has the
power to prohibit by ordinance any person
from bathing in Lake Concord, which is a
nonnavigable lake within the city's limits,
and owned by the persons whose lots border

.-_-~I-- -- ~~~crannaarara~la~r~~



thereon, and who enjoy the rights of riparian
owners, and in which the city has no prop-
erty interest whatever; such ordinance being
designed solely to prevent the possible pol-
lution of the waters of the lake, which are
being used by a private corporation to sup-
ply the city with water for municipal pur-
[21 Counsel for plaintiff in error contends,
and we think correctly, that habeas corpus
will not lie to test the guilt or innocence of
one who is charged with an offense under a
valid act or ordinance, but it does not fol-
low that the court will not in such a pro-
ceeding inquire into the facts to ascertain
whether under the circumstances the act or
ordinance in question is a valid exercise of
legislative power. Whether the lake is with-
in the corporate limits of the city, for ex-
ample, is a question of fact upon which the
valid exercise of the power to prevent bath-
ing therein would depend; whether the city
derives its water supply from the lake may
also be inquired into in order to ascertain
the reasonableness of the exercise of the
power, and whether the person charged with
the violation of the ordinance was the owner
of a lot bordering on the lake and had .the
rights of a riparian owner, or the guest of
one who enjoyed such rights, might also be-
come material to be considered to ascertain
if he was in a position to question the valid-
ity of the act or ordinance.
In the case of State ex rel. Worley v.
Lewis, 55 Fla. 570, 46 South. 630, the ques-
tion of fact as to whether the city of Jasper
was a city of 5,000 inhabitants was material
to the question of the validity of the ordi-
nance under which the petitioner Worley
was arrested and detained in custody. It
was not apparent from the face of the ordi-
nance that it was void, and the court does
not take judicial notice of the population of
a city. See, also, Hardee v. Brown, supra.
The attack made upon the ordinance in this
case questions its existence as a valid law
of the city, the contention being that its
validity depends upon certain extrinsic facts,
not whether, as in the case of Randall v.
Tillis, 43 Fla. 43, 29 South. 540, it was spe-
cifically applicable to the transaction or con-
duct of the accused. In the case at bar the
petitioner questions the power of the city.
In the case of Randall v. Tillis, supra, the
petitioner questioned the applicability of the
act to the particular conduct with which he
was charged.
We think that the writ of habeas corpus
was properly issued in this case, and that
in the proceedings the petitioner had the
right to inquire into the valid exercise of
the power on the part of the city to prohibit
by ordinance bathing in the lake.
[3-5] Counsel for plaintiff in error con-
tends that the ordinance was valid, while pe
titloner contends that the ordinance deprives


him of his property without just compensa-



tion and without due process of law, and
the power to enact the ordinance was not
within any expressly delegated or implied
power granted by the Legislature.
It may be conceded that bathing in the
lake, or subjecting it to any use which the
riparian proprietors might under the law
subject it to would tend to pollute the wa-
ter and render it unfit for use by the city.
In such case, under the general welfare
clause of the general act for the incorpora-
tion of cities and towns, the. power would
exist to enact an ordinance to prevent such
uses of the lake, provided such ordinance was
not inconsistent with the Constitution and
laws of the United States and of this state.
Section 1013, General Statutes of 1906; Flor-
ida Compiled Laws of 1914. To be valid an
ordinance must be reasonable and not in con-
flict with any controlling provision or prin-
ciple of law (Waller v. Osban, 60 Fla. 268,
52 South. 970); should be within the pow-
ers expressly or impliedly conferred (Hardee
v. Brown, supra; Malone v. City of Quincy,
66 Fla. 52, 62 South. 922, 1 Ann. Cas. 1916U,
208; Ferguson v. McDonald, 66 Fla. 494, 63
South. 915); and if any doubt exists as to
the extent of a power attempted to be exer- \
ciseq -y a municipality out of the usual
range, or wnica may affect the common-law
right of a citizen, it is to be resolved against
te municipality (Anderson v. Shackleford,
,'13 outE1:"^)
In the case at bar it appears from the rec-
ord that the water company is using the
water of the lake for municipal purposes
without objection on the part of the riparian
proprietors or owners of the lake. The wa-
ter is conducted through a pipe into another
lake near by, and from thence carried
through a filtration "plant" or device and
then distributed to the city. This use of
the water of Lake Concord by the water com-
pany seems to be with the tacit, if not ex-
pressed, consent of the property owners
whose lands border upon the lake and ex-
tend into it, but the granting of such privi-
lege to the water company does not neces-
sarily involve the surrender of all the com-
mon-lawl rights of riparian proprietorship
which under the Constitution and laws are /
regarded as property. See 29 Cyc. 333-386;/J
In re City of New York, 168 N. Y. 134, 61
N. E. 158, 56 L. R. A. 500; 1 Farnham on
Waters, p. 297; Fuller v. Shedd, 161 Ill. 462,
44 N. E. 286, 33 L. R. A. 146, 56 Am. St.
Rep. 380. But in this case the lake is the
private property -of the persons who own
lands borer upon it. t is not a uestio\ /
o interference with the common-law right
of riparian owners on navigable stream, but
interference with the use and enjoyment of
the lands by the owners or them for the or-
dinance which prohibits any one fro sm-
miing orating n the lake includes the own-
ers of it as wells all others. The court
has no quarrel with the principle which runs



through the social compact, and to which ref-
erence was made by counsel for plaintiff in
error, namely, that every person must yield
a portion of his right of absolute dominion
and use of his own property in recognition
of and obedience to the rights of others, so
that others may enjoy their property without
unreasonable hindrance, but the application
is not clear.
What rights have the ublic-in the private
lands or another thae forbids that other's
reasonable enjoyment of them? The city
could acquire no rights to the lake except
by the exercise of the power of eminent do-
main or purchase. That it has not done,
but seeks by the ordinance to prevent one's
reasonable use of his own land. or the water
which covers it, in order that others in the
city who have no right to the waters may
enjoy them for household and other conven-
iences, 'including bathing in private tubs,
without danger of pollution from germs
which may be washed from petitioner's body
and be carried through filtration plants to
the city.
It may be admitted that the city might
prescribe rules and regulations governing the
enjoyment of the pleasure of bathing in one's
own lake, prescribing the cut or fashion of
the bathing suit to be used, to the end that
the modesty of the ultrarefined may not be
shocked, and remain within its powers, but
the ordinance under consideration prohibits
bathing in the lake altogether, and thus pre
vents the owners from exercising dominion
and control over their own.
In the case of People v. Hulbert, 131 Mich.
156, 91 N. W. 211, 64 L. R. A. 265, 100 Am.
St. Rep. 588, cited in the brief of counsel
for defendant in error, the city of Battle
Creek owned land bordering upon the lake
from whence it took water for the city's
supply. It was a riparian owner. The court
held that a city could not for the purpose
6on rairu a water supply. prevent the orai-
nary and reasonable use of the waters of an
nland lake or stream by an upperriparian
Proprietor without the exercise of the right
or eminent domain or without purchase. The
question of the jurisdiction or tne city over
the territory covered by the lake seemed not
to be involved. The case of George v. Vil-
lage of Chester, 202 N. Y. 398, 95 N. E. 767,
holds that a riparian owner may not be pre-
vented by police power of the state from the
enjoyment of the reasonable and incidental
rights, such as bathing, boating, fishing, and
swimming, in a lake which is his by reason
of his riparian proprietorship, even though
the effort to prevent such enjoyment by him
Is in the. interest of a city whose water sup-
ly is taken from the lake. Both of the
above-mentioned cases cited by counsel for
defendant in error hold in effect that a cit
'ay not practically subject private property
Public use without compensation to the

v. STATE 669

owner, even if the purpose be in the interest
of public health.
We have found no authority which we con-
sider maintains to the contrary. In the
case of Broward v. Mabry, 58 Fla. 398, 50
South. 826, this court held that those who
own lands extending to ordinary hih-water
mark of navigable waters are riparian hold-
ers, and their rights as such are property
rghts that ma be regulated by law. t
may not be taken without just compensation
and diuenroce. of law. In the case at bar the
lake is owned by the persons whose lots border
upon it. As such owners there is no question
that they have the right to use teir r
erty as tne ma so lone as such use des nn(

injure another's property. Nor is there any
doubt as a matter of law that nonnavigable ,
bodies of water may be the subject of private
ownership. See Gould on Waters, 83;
Lembeck v. Nye, 47 Ohio St. 336, 24 N. E.
686, 8 L. R. A. 578, 21 Am. St. Rep. 828.
It is a matter of general information that
the state 'of Florida acquired under the
Swamp and Overflowed Land Grant Act-of
September 28, 1850 (Act Cong. Sept. 28, 1850,
c. 84, 9 'Stat. 519 [U. S. Comp. St. 1916, 4958-
49CO1), many millions of acres of land much
of which consisted of lakes and ponds and
which have passed Ito private ownership.
The ordinance in question, if enforced
against the petitioner, would deprive him of
a reasonable use and enjoyment of his own
property, which is equivalent to depriving
him of his property, ann ent without due
process of law or just compensation.
The judgment of the circuit court is there-
fore affirmed.

FIELD, and WEST, JJ., concur.

(Supreme Court of Florida. Jan. 23, 1918.)
(Syllabus by the Court.)
HO1ICIDE c==14(1), 147, 232 ELEMENTS -
Premeditation is an essential element in the
crime of murder under the statutes of this state.
It should be alleged in the indictment and prov-
ed beyond a reasonable doubt at the trial. The
mere fact of the killing does not raise a pre-
sumption of premeditation such as makes the
offense murder in the first degree and cast up-
on the defendant the burden of showing that it
was not. Something more than mere intention
to kill must be shown; it is necessary that some
circumstances admissible as evidence be shown
from which may be legitimately inferred the
fact of premeditation.
Whitfield and West, JJ., dissenting.
Error to Circuit Court, De Soto County;
John S. Edwards, Judge.
Dave Miller was convicted of murder, and



4=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes



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