The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1906-12-23
LAW IS
DECLARED
INVALID
Full Text of Opinion Hand.
ed Down by Judge Wall
in Hubbard Case
- at Tampa.

Wallis decision in the liquor license
law case:
In the circuit court for the Sixth
Judicial circuit OF Florida, in and for
Hillsborough county.
The state of Florida, ex rel. John
Hubbard, VS.. Board Of County Com
missiOners. Mandamus.
The cause comes I'D on a demurrer
to the alternative writ of mandamuS,
based upon two grounds:
First, The failure to allege that a
permit had not been refused for legal
cause, and, second, the demonstrations
laws of Florida The first objection
having been eliminated by amend
ment. the sole question to be deter
mined is the validity of the act.
Are sections two and four of the
act violative of the constitutional in
hibitiOn in that they attempt to ON
fer upon the commissioners judicial
powers? And il SO, are these sections
so interviewer with and interdependent
upon the other provisions of the act
that, without them, the act would be
inoDerative? And. lastly would the
legislature have passed the act with.
out the safeguard and restrictions
contained in these sections?
Creates Court.
while the powers of the commits
sioners In the control and manage
ment of the fiscal affairs of the county
are very large vet to confer on them
judicial discretion would be to Gre
ate court not authorized by the or
ganic law.
'The old act provided that an an
plicant for permit to sell liquors in
any election district. when the sale of
it had pot been prohibited bv vote
of the people. should be entitled 10
such permit upon presenting to the
board petition duly Signed by q
majority of the registered voters az
the district. and authenticated and
nubliSnef according to law. Under
the provisions OF that act the supreme
court decided that the powers of the
board were limited to an ascertain
ment OF the facts that the petition
contained the valid. boni fde SIGMA
lures of majority of the registered
voters. and that it has been properly
verified and published. And that
court held that q provision of the
statutes which authorized the com
misSionPrs to revoke a. license be-
cause OF a violation of the law bv
/ the dealer in selling to minors and
drunken men was void. because II
attempted 10 confer judicial nowers
/ IN tho board True, the court hold
| that the balance Of the act was valid
because that part Of 1t which pro
vidNd for the Granting nf a permit
could stand without the clause or sec
ton providino for revocation
The New Act.
"The act of 1890 provides, in sub
stance that a party desirious Of en-
gazing in the sale Of liquors should
present to the board petition veri
! fed by the oath of three residents
setting forth that the ambient was q
years of age, sober, law-abiding. and
man OF good moral character: that
thereupon the board should cause tr
he published a notice. calling uDen
all residents of the district within q
sDecified time to show cause whv sueN
|
IL any Cause was shown or attemn+od
| to be shown, that the board should
proceed TO ascertain the truth or fals
! itv of the allegations of the petition
and grant or refuse the permit ac
cordinglv. While this IS not the Ian
guase of the act. II Is its clear mr.
port and intent Does it not attempt
to confer on the board judicial pow
ers in the ascertaiument as II
whether or not the applicant is q
years Of age. sober. law-abiding and
Of good moral character? How car
| that be done without taking testi
pnony as to the truth or falsity o.
those alterations? Certainly not
! therefore the act. in effect. attemnt'
to create court not recoeDiznd hv
/ low. Moreover. can it be commended
that the legislature meant that an
uerSon. firm or cOrnoration could ~,
\ tain permit to conduct such a bust
ness in the community by simply
presenting a petition setting up those
! facts. verified bv the oath of three
/ parties. all Of whom may be unknown
to the board, and without any REGARD
to the wishes of the other residents o.
the district, of whom there may bt
several thousand, and without takins
any steps 10 ascertain the reliability
of the parties whose names are az
tached to the oath, Or the fitness o
the applicant to conduct bushes:
of that character? If that were tht
case, then any man. no matter wha
his character or. previous conduct
could ATTAIN a permit to carry on ;
: dive of the lowest and vileSt kinC
by simply inducing three residents q
/ the district TO syouch for his beint
sober, law-abiding and a man of goot
moral character, even although tn
signers of the affidavit may neYe,
have seen or heard of him twenty
four hours before signing the affidavit
Unconstitutional.
II The conclusion in inevitable the
il was never in the cnnteMslat;.5n y
the lawmakers to bring about o. =,
risk bringing about any such condi
ton Of statutes.