35 Fla. 149 | Fla. | 1895
In Ms petition for habeas corpus, Henry Pitts alleges that he is unlawfully detained in custody by the sheriff of Polk county under a capias issued out of the county court of said county on an information filed in said court on the 4th day of December, 1894, a copy of the information being attached as an exhibit to the petition. The information was filed in the county court of the county of Polk on the 4th day of December, 1894, by the prosecuting attorney for said county against the petitioner, and it is therein alleged that on the 5th day of April of that year an election was held in said county to determine whether or not the sale of intoxicating liquors, wines or beer should be prohibited within the limits of said county; that said election was held under and by virtue of an order of the board of county commissioners made upon and in pursuance of an application of more than one-fourth of the registered voters of said county duly signed and presented to the said board at a regular meeting; that the Clerk of the Circuit Court of said county performed all the legal duties required of him by law in the advertisement of said election, and the supervisor of registration of said county performed all duties required of him in the registration of all voters entitled to vote at said election and offering to register; that said election was called, conducted and held pursuant to the Constitution and general election laws of the State of Florida, and being so called, conducted and held, a majority of the votes legally cast at said election were against the sale of intoxicating liquors, wines or beer, and in prohibition of the sale thereof within the liznits of said county. Further, that petitioner, on the 22nd day of May, 1894, within said county and State, did
The return of the sheriff to the writ states that he holds the petitioner in custody by virtue of a capias issued out of the county court of Polk county upon an information filed against him in said court on the 4th day of December, 1894, the capias and a certified copy •of the information being made a part of the return.
Counsel for petitioner having filed some ex parte affidavits, and also a paper denying that the election alleged in the information, and referred to in the sheriff’s return, was valid for the reason, as stated, that one-fourth of the registered voters of said county did not sign the petition upon which said election was held, .and praying that petitioner be discharged from further custody. The constitutionality or legality of the creation and organization of the county court for Polk
The Constitution provides that the county judge shall be the judge of the county court when one is organized in a county. Counsel for petitioner make no contention here on the eligibility of the judge of the county court, and in the absence of any showing or contention on this point, it is not necessary for us to decide whether such a question can be raised on the proceedings before us, or to say anything further in reference to it.
The ex -parte affidavits filed relate to the registration list of the county and the petition presented to the board of county commissioners asking that an election be held in said county to determine whether the sale of liquors, wines or beer should be prohibited therein, and upon which the election alleged in the information was held. The Clerk of the Circuit Court makes one of the affidavits, and he states that he had carefully counted the names of the persons signed to the petition, and that he found the total number of signatures to be four hundred and forty-four. This affiant further states that there are a few names erased, and something on the petition that he was unable to decipher, but that the names erased and that which he could not decipher would not amount to over a dozen names. The supervisor of registration of the county makes another affidavit, and he states that on or about the first Monday in February, 1894, he counted the names of all persons who were properly registered on the registration books and not properly stricken therefrom by the county commissioners, and that he found thereon the names of at least two thousand three hun
The case has been submitted on the record as stated. The Attorney-General, representing the State, says of the affidavits that they are vague and ex parte, and, without notice, so far as his office is concerned. It is provided by statute in this State that “the return made to the writ may be amended, and shall not be taken to be conclusive as to the facts stated therein, but itshall be competentfor the court, justice or judge, before whom such return is made, to examine into the cause of the imprisonment or detention, to receive evidence in contradiction of the return, and to determine the same as the very truth of the case shall require.” Section 1775 Rev. Stats. It is further provided in Section 1776 that whenever either in term time or vacation it shall be inconvenient to procure the personal attendance of a witness, his affidavit, taken
•Whether a petitioner can on habeas corpus inquire into the validity of an election putting the local option law in operation in a county, and which it is alleged that he has violated, we need not determine, (section 83, Church on Habeas Corpus, 2d edition), as there- is no sufficient showing before us that the election held for that purpose in Polk county on April 5th, 1894, was not in accordance with law, as alleged in the information filed against petitioner.