Yaeger v. State, 78 Fla. 354 (Fla. 1919)

Taylor, J.

— The plaintiff in error hereinafter referred to as the petitioner was arrested under the following affidavit and warrant:

and cream, and uses bottles in its business; that it has complied with the law of the State of Florida with reference to registering its trade name, to-wit, the word ‘Purity's;’ that on to-wit, the 8th day of February, A. D. 1919, A Yeager in said county and district, did unlawfully use bottles of the Purity. Ice Cream & Dairy Company, on which was blown, etched, stamped or engraved the word ‘Purity's,’ by filling the same with milk or cream, and that said defendant is engaged in the sale of milk and cream, contrary to the laws and statutes of the State of Florida.

use bottles of the Purity Ice Cream & Dairy Company, on which was blown, etched, stamped or engraved the word ‘Purity’s’ by filling the same with milk or cream; that said word ‘Purity’s’ has been registered as provided by law; that said defendant is engaged in the manufacture or sale of milk:

At the trial before the-said Justice of the Peace, the petitioner was committed for trial to the Criminal Court of Becord for DUval County, and is now deprived of his liberty in the custody of the sheriff of said' county. The petitioner before the Circuit Court for Duval County sued out the writ of habeas corpus, alleging in his petition for the writ that he is now in the custody of said sheriff, who is holding him by virtue of said trial and commitment, and that he is being unlawfully detained of his liberty, and submits:

fails to show a violation of any law of the State of Florida.

nicipal courts, contrary to the provisions of Section 20 of Article III of the Constitution of the State of Florida.

At the hearing before the Circuit Judge the petitioner was remanded to custody. For review of this judgment the petitioner obtained a writ of error from this court.

The constitutionality of Chapter 4584, Laws approved June 5th, 1897, entitled “AN ACT to Protect the Owners of Bottles, Boxes, Siphons, Fountains,, Tins or Kegs Used in the Sale of Soda Water, Mineral or Areated Waters, Porter, Ale, Beer, Cider, Ginger Ale, Milk, Cream, Small Beer, Lager Beer, Weiss Beer, White B’eer or other Beverages, or Medicines, Medical Preparation, Perfumery, Oils, Compounds or Mixtures,” brought forward into the General Statutes of 1906 as Sections 3165, 3166, 3167, 3168 and 3345 thereof, is assailed on the above stated grounds.

So far as our research has been able to discover, the courts of last resort of the following named American States have passed upon the questions here presented of the constitutionality of substantially the same statutes, vie: New York, Massachusetts, Kentucky, and by an

intermediate court California, Illinois, Ohio, Missouri and' Indiana.

In the first three named States New York in the case of People v. Cannon, 139 N. Y. 32, 34 N. E. Rep. 759; Commonwealth v. Anselvich, 186 Mass. 376, 71 N. E. Rep. 790, and Kentucky in the case of Commonwealth v. Goldberg, 167 Ky. 96, 180 S. W. Rep. 68, and in the State of California in the District Court of Appeals of the Second District in the case of Bartolloti v. Police Court of City of Los Angeles, 35 Cal. App. 372, 170 Pac. Rep. 161. such statutes have been sustained and upheld as constitutional. While in the four last named States their courts of last' resort, Illinois in the cases of Lippman v. People, 175 Ill. 101, 51 N. E. Rep. 872, and Horwich v. Walker-Gordon Laboratory Co., 205 Ill. 497, 68 N. E. Rep. 938, 98 Am. St. Rep. 254, Ohio in the case of State v. Schmuck, 77 Ohio St. 438, 83 N. E. Rep. 797, 122 Am. St. Rep. 527, and Missouri in the case of State v. Baskowitz, 250 Mo. 82, 156 S. W. Rep. 945, Ann. Cas. 1915A 477, and Indiana in the case of State v. Wiggam, — Ind. —, 118 N. E. Rep. 684, have held such statutes to be unconstitutional and void, as being unreasonable and arbitrary class legislation. We agree fully and clearly with the reasoning of the courts of the last four named States in the case above cited, with constitutional provisions substantially like our own they declare with unanswerable reasoning: that substantially the same statutes as that under consideration is violative of the organic law, and we agree and concur fully with their reasoning. The perfectly harmless and innocent act within itself, that of refilling a glass bottle, is made penal by the statute merely because this statute prohibits it, yet the same statute penalizes the innocent act of refilling it only when and only so long

as the same bottle belongs to the highly favored class who have registered it. The moment the ownership of the bottle changes to that of another person or persons, it may be filled and refilled ad Wntum, without in the least violating this or any other law.

We think this feature of the statute under consideration is an unjust and unreasonable legislative delegation to the class of people who own a very common and ordinary class of personal property an attribute to that property, viz:: its inhibited refillment, while and only so long as it remains their property.

It was asserted in the argument that this statute was adopted from the laws of New York. We do not know whether it was or not. -But the States above named of Illinois, Ohio, Missouri and Indiana, and, as was asserted in one of the cases above cited, many of the other States, have statutes on their books substantially the same as the Florida statute in question, and the questioned statute may have been adopted here from one or more of the last named States whose courts have adjudged them to be unconstitutional class legislation, instead of from the State of New York.

We are clearly of the opinion that the said statute violates the spirit if not the letter of our organic law in the respects in which it is assailed and is therefore void, and that the petitioner should be discharged from custody without delay, at the cost of Duval County.

Browne, C. J., and Ellis, J., concur.

Whitfield and West, J. J., dissent.