Opinion
Opinion Filed November 27, 1935.
Affirmed on Rehearing February 25, 1936.
A case of original jurisdiction — habeas corpus.
H.H. Wells, Stanton Walker, J. Van Wilhite, B.K. Roberts, George A. Pierce and William K. Whitfield (of Tallahassee), for Relator;
Cary D. Landis, Attorney General, H.E. Carter and J.V. Keen, Assistants, and Henry C. Tillman, for Respondent.
This case is disposed of on the authority of the cases of State, ex rel. Lane Drug Stores, Inc., v. Simpson, Tax Collector, and State, ex rel. Thomas B. Adams, v. Lee, Comptroller, this day decided. See 122 Fla. 639, 166 Sou. Rep. 249.
The petitioner is accordingly remanded to the custody of the respondent and the habeas corpus proceedings dismissed, without prejudice to the right of the petitioner upon being arraigned, to invoke the principle that a statute that is declared unconstitutional by a competent court is without force until the decision of the lower court is reversed by a higher court so as to preclude infliction of punishment for criminal violations of it, or the exaction of civil penalties for its non-observance, during the time the judicial declaration of invalidity stood unreversed by the higher court. See 8 R.C.L. par. 10, page 60, and cases cited in support; State v. O'Neil, 33 L.R.A. (W.S.) 788 and note.
Petitioner remanded without prejudice to special defense that may be available to him.
WHITFIELD, C.J., and TERRELL, BROWN and DAVIS, J.J., and FRANK A. SMITH, Circuit Judge, concur.
BUFORD, J., dissents.
In this case I think the petitioner should be discharged for the reasons stated in the opinion dissenting in part in the case of State of Florida, ex rel. Lane Drug Stores, Incorporated, v. Clyde H. Simpson, as Tax Collector of Duval County, Florida.