Clarence Sullivan was tried and convicted in the Court of Crimes of Hillsborough County for the offense of larceny. He was sentenced to imprisonment in the county jail and committed under that judgment to the custody of the sheriff of the county. He contended that his imprisonment was illegal because the court in which he was convicted had no legal existence because the Act of the legislature of 1927, Chapter 11975, creating and establishing such a court in Hillsborough County is unconstitutional and therefore void. He was discharged from custody by the Circuit Court of Hillsborough County on writ ofhabeas corpus, to which judgment the State took a writ of error.
The question of the validity of the Act creating the Court of Crimes is thus presented.
The Act is entitled "An Act Creating a Court of Crimes in Each County of the State of Florida Which Alone Constitutes a Judicial Circuit for Which There is Provided by Law Two or More Resident Circuit Judges and Having a Population of More Than One Hundred Thousand According to the Last State Census; Prescribing the Jurisdiction of said Court; Providing for the Appointment of a Judge of said Court, Fixing His Compensation and Prescribing His Term of Office; Providing for a Clerk and Prosecuting Officer for said Court, and Prescribing Their Duties."
The Act provides for the establishment of a Court of Crimes in each county which alone constitutes a judicial circuit where the law provides for two or more resident circuit judges, and which county has a population of more than one hundred thousand according to the last State census.
The court is given concurrent original jurisdiction with the Criminal Court of Record in such county in all cases of misdemeanors. It is provided that prosecutions in the Court of Crimes shall be by information filed by the *Page 218 County Solicitor in the Criminal Court of Record and then immediately transferred by the clerk of that court to the Court of Crimes. If the judge of the latter court should be disqualified in any case then such case is retransferred to the Criminal Court of Record for trial. A judge is provided for the Court of Crimes, but the County Solicitor and clerk of the Criminal Court of Record are officers of the Court of Crimes. The Circuit Court is vested with appellate jurisdiction in all cases decided by the Court of Crimes.
Upon the establishment of this court all cases of misdemeanors pending in the Criminal Court of Record are to be transferred to the Court of Crimes.
There are some anomalies which may be noted in connection with such courts.
No such court may be established in Escambia County, because by reason of Sections 39, 40, 41 of Article V of the Constitution that county may not have a Criminal Court of Record as by those amendments adopted in 1910, the Criminal Court of Record became merged in a Court of Record with both criminal and civil jurisdiction, and the Supreme Court has appellate jurisdiction in all causes of which jurisdiction is granted to the Court of Record in that county.
Criminal Courts of Record are established in other counties upon application of a majority of the registered voters as the legislature may deem expedient.
A Court of Crimes may not be established in any county which has less than a hundred thousand inhabitants according to the last State census, which does not constitute of itself one judicial circuit which does not have two resident circuit judges of the Circuit Court and has no Criminal Court of Record.
No prosecution may originate in the Court of Crimes. *Page 219 It must be begun by information filed by the County Solicitor in the Criminal Court of Record.
No misdemeanor may be tried in the Criminal Court of Record unless the judge of the Court of Crimes is disqualified.
The Court of Crimes under the terms of the Act has concurrent original jurisdiction with the Criminal Court of Record in all cases of misdemeanors, but the Court of Crimes must hear and determine all such cases unless the judge be disqualified.
Section 25, Article V of the Constitution, vests the Criminal Courts of Record with jurisdiction of all criminal cases not capital which arise in the county where there is a court of that character.
Jurisdiction is the power to hear and determine a controversy and to render the particular judgment in the particular case and power to enforce the judgment. The word embraces every kind of judicial action and hence every movement by a court is necessarily the exercise of jurisdiction. It is the right to adjudicate concerning the subject-matter in a given case. See 7 Rawle C. L. 1029; State of Rhode Island v. State of Massachusetts, 12 Pet. (U.S.) 657, 9 L. Ed. 1233; Grignon v. Astor, 2 How. (U.S.) 319, text 338, 11 L. Ed. 283, text 290; Applegate v. Lexington C. Co. Min. Co., 117 U.S. 255, text 267, 29 L. Ed. 892, text 895, 6 Sup. Ct. Rep. 742.
Jurisdiction of the matter of all criminal cases not capital, Sec. 25, Article V Constitution, does not mean jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. Franklin Union No. 4 v. People, 220 Ill. 355, 77 N.E. Rep. 176, 4 L. R. A. (N. S.) 1001.
Now since the Court of Crimes only may hear and determine cases of misdemeanors, and to render the judgment *Page 220 and enforce the same, that court and not the Criminal Court of Record has jurisdiction of that class of criminal cases except in special or particular cases where the judge of the Court of Crimes may be disqualified and then only when he makes an order transferring the cause to the Criminal Court of Record. See Section 7, Chapter 11975.
Such is the meaning of the language employed in the statute as I understand the significance of the words employed. If the Criminal Court of Record may hear and decide and enter judgment in any misdemeanor other than in particular cases where the judge of the Court of Crimes is disqualified, it must be in those cases in which the clerk of the Criminal Court of Record refuses to obey the mandatory provision of the statute to transfer the case to the Court of Crimes after the County Solicitor has filed the information in the Criminal Court of Record. But the jurisdiction of the Criminal Court of Record cannot depend upon such a breach of official duty. If upon the other hand the Criminal Court of Record still has jurisdiction under the Constitution of such causes then the provision requiring the clerk to transfer such cases is a nullity and may be disregarded at will, leaving the Court of Crimes without jurisdiction to try any cause whatsoever, as the information is required to be drawn by the County Solicitor and by him filed in the Criminal Court of Record. To say that the County Solicitor may draft an information, entitle and file it first hand in the Court of Crimes is to ignore the plain language of the statute.
If the statute had provided that all prosecutions of misdemeanors should be by information filed by the county solicitor in the court of crimes which should have jurisdiction to hear and determine the same, there would probably be no doubt that the legislative purpose was to deprive the criminal court of record of jurisdiction in such class of cases. I am of the opinion that the identical purpose is *Page 221 sought to be accomplished by requiring the clerk of the criminal court of record to immediately transfer the information to the court of crimes after it has been filed in the criminal court of record.
The argument that because the legislature is empowered by the constitutional amendment proposed in 1913 and adopted in 1914 to ordain and establish other courts or commissions than those enumerated in the amendment, it has power to define the jurisdiction of such courts or commissions, is of no comfort to those who contend that the jurisdiction prescribed by the Constitution to be exercised by the courts enumerated therein may be divided between different courts or commissions of the legislature's creation, by simply calling them courts or commissions of concurrent jurisdiction with that of some other court named in the Constitution, because that is merely a use of the old fallacy of taking the conclusion itself as one of the premises of an argument. The proposition to be proved is that the court of crimes may exercise jurisdiction of all cases of misdemeanors in Hillsborough county. The facts are that the Constitution vests that jurisdiction in a criminal court of record and empowers the legislature to ordain and establish "other courts or commissions," but makes no provision as to the jurisdiction of such "courts or commissions." The argument is that since the legislature has created the "court of crimes" with jurisdiction of misdemeanors, and as all "courts or commissions" created by the legislature must have jurisdiction, therefore the court of crimes has jurisdiction of misdemeanors.
If the argument is sound it follows that if the legislature had undertaken to vest in the "court of crimes" or any new "court or commission" by a different name with jurisdiction to issue writ of mandamus — injunction, quo warranto or other extraordinary writs or with original concurrent *Page 222 jurisdiction with the circuit courts of forcible entry and unlawful detainer, or final appellate jurisdiction with the circuit court in all cases of misdemeanor decided by the criminal court of record, or appellate jurisdiction with the Supreme Court of all cases of felonies or civil cases decided by either the criminal courts of record or circuit court, it would have been a valid exercise of legislative matters. In none of such matters are the courts which are named in the Constitution vested with "exclusive" jurisdiction in terms.
My interpretation of the amendment of 1913, adopted in 1914, is that the phrase "Such other courts or commissions as the legislature may from time to time ordain and establish," merely provides for the exercise of judicial agencies in matters where it becomes the policy of the State to exempt in part certain classes of its citizens from the usual or customary processes or penalties of the law. As, for instance, the establishment of juvenile courts where offenses committed by persons of tender years who by reason of youth, inexperience and ignorance may be regarded as somewhat less responsible for their actions than the normal adult, and other particular "courts or commissions" not necessarily judicial courts, such as courts of land registration as in Massachusetts; a court of mediation and arbitration as in Michigan; a court similar to the English court of faculties to determine the qualifications of persons desiring to be married; a court of forestry and game; a court for divorce and matrimonial causes; a court for the investigation of inebriates and drug addicts. There is a great field which opens as the complexities of social growth multiply for the use of that constitutional provision, but where the constitutional court is expressly vested with jurisdiction of all cases of a certain class, it is begging more than a bit at the leash of the organic law to sustain *Page 223 a legislative creation which deprives any one of the constitutional courts of any portion of its jurisdiction.
I am also of the opinion that the Act is in conflict with the Constitution because under its terms it cannot be made applicable to Escambia county of this State without a constitutional amendment. In other words, one of the counties of this State cannot ever come within the classification prescribed by the statute because that county can have no criminal court of record without a constitutional amendment. There are many counties in the State that cannot now come within the classification adopted by the statute, when courts of crimes become automatically established under the statute, but they are all potentially within its terms except the county of Escambia, which is excluded from the alleged benefits of the Act by constitutional limitations. In all other countries the population may grow to one hundred thousand, the legislature may create of each county a judicial circuit, provide for two circuit judges resident therein and create a criminal court of record, when in such case a court of crimes becomes automatically established therein, but Escambia county is excluded by constitutional provision from participating in or enjoying the benefits of this beneficent legislation. It cannot have a criminal court of record. The legislature has not the power to establish one in that county.
The Act is therefore local, special and class legislation and is obnoxious to Article III, Section 20, of the Constitution.
The fundamental idea and basis of all classification is inequality, but among the political subdivisions of the State there can be no inequalities. The Act, however, undertakes a classification of political subdivisions upon certain distinctions which excludes one of them from the possibility *Page 224 of inclusion within its provisions and thus attempts by its very terms an inequality which politically can not exist.
I think the judgment should be affirmed.