McCreary v. Cohen

We are considering two cases which are before us on rehearing, after opinions have been written in each separately. This opinion will govern both cases.

In the first case, which appears on our Docket as No. 8049, the defendant in error was charged with the violation of Section 2 of Ordinance No. 956 of the City of Miami. The first four sections of that Ordinance, after the title and enacting clause, are as follows:

"Section 1. It shall be unlawful for any person, firm, corporation, or association, with intent to sell or dispose of goods, wares, merchandise, securities, service or anything offered by such person, firm, corporation or association, directly or indirectly to the public, for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest, therein, to make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly to be made, published, disseminated, circulated or placed before the public within the City of Miami in a newspaper or other publication, or in the form of a book notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding goods, wares, merchandise, *Page 430 securities, service or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

"Section 2. It shall be unlawful for any person, firm, corporation or association, in advertising for sale any goods, wares, merchandise, securities, service or anything offered by such person, firm, corporation or association, to use any word, figure or sign which as therein used falsely or fraudulently conveys, or is intended to convey, the meaning that the thing so advertised has greater value or is intrinsically worth more, or previously sold for in Miami at a greater price, than the price so presently advertised.

"Section 3. It shall be no defense to a prosecution under the provisions of Section 2 that the advertising upon which the prosecution is based represents the opinion of the accused as to the value, unless it is clearly stated in such advertisement that the representation as to value therein contained is a matter of opinion and not a statement of fact.

"Section 4. The words 'value' and 'worth' as used in Section 3 herein shall be held and construed to mean the prevailing market price at which the thing is regularly sold in Miami."

In the second case, which appears as No. 8050, the defendant in error was charged with the violation of Section 1 of the Ordinance.

It is contended here that the ordinance is invalid because of being in conflict with the State Constitution. The Court below held Section 2 as read in connection with Section 3 to be unconstitutional but held Section 1 of the Ordinance to be valid, while in the case involving Section 1 of the Ordinance the Court held that the allegations of the affidavit were insufficient. *Page 431

Each case originated in habeas corpus proceedings brought in the Circuit Court of Dade County and in each case petitioner below was discharged. The cases come before us on writ of error.

This Court is not concerned with the reasons of the Circuit Court for the discharge of the petitioner. The Court is only concerned with the question as to whether or not the judgment discharging the petitioner below, defendant in error here, was the proper judgment.

It is clear that it was not the intent of the Municipal Legislative body to condemn in Section 1 of the Ordinance a misstatement as to the value of the property offered for sale, because it provided specifically in Section 2 for cases of that kind.

In the affidavit in which it is alleged that the defendant violated Section 1 of the Ordinance the allegation is in effect that in an advertisement which he published he made the statement that certain goods which he offered for sale were of a greater value than that which such goods had at any time had and that this statement of the defendant of the value was known to be false and untrue and was made with the intent to make sales of the product. We think that the affidavit was insufficient because the act complained of was not within the purview of Section 1 of the Ordinance.

It is unnecessary for us to adjudicate the validity of Sections 2 and 3 of the Ordinance because the allegations of the affidavit are entirely insufficient to charge any offense under those provisions of the Ordinance if it be valid. It is not alleged anywhere in the affidavit that the goods advertised and offered for sale by the defendant were not of greater value than the price at which he offered them for sale, but, on the contrary, it is alleged, by inference at least, that the goods were worth more than the price at which the *Page 432 defendant advertised and sold the same. A typical allegation of the affidavit in that regard is:

"that he, the Said Joe Cohen, did, at the time and place hereinabove set out, and in the manner and by the means hereinbefore set out, cause to be printed on page 3 of the April 28, 1932, issue of The Herald, a newspaper printed and circulated in the said City of Miami, an advertisement reading, in part, as follows, to-wit:

'Any suit in the Store Values to $55.00 $15'

he the said Joe Cohen, then and there, by means of the said advertisement, intending to falsely convey to the public the meaning that the suits so advertised could be purchased for $15.00 a suit, and that some of the suits so advertised had a value and were intrinsically worth $55.00 a suit; whereas, in truth and in fact, said suits as advertised had no greater value or was intrinsically worth half of $55.00, contrary to and in violation of Section 2 of Ordinance No. 956 of the City of Miami, Dade County, Florida, passed and adopted by the City Commission on the 9th day of March, 1931;"

This allegation is equivalent to an allegation that the defendant advertised for sale and sold an article of merchandise for $15.00 which was worth $27.50. The ordinance does not prohibit that sort of thing, but the ordinance condemns an advertisement using any word, figures or sign "which as therein used falsely or fraudulently conveys, or is intended to convey, the meaning that the thing so advertised has greater value or is intrinsically worth more, or previously sold for in Miami at a greater price, than the price so presently advertised." And, there is no allegation that this act condemned by the ordinance was perpetrated by the *Page 433 defendant, the petitioner in the Court below and defendant in error here.

Therefore, it follows that the former opinions filed in these cases are overruled and the judgment of the Circuit Court discharging the petitioner in each case must be affirmed. It is so ordered.

Affirmed.

DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL and BUFORD, J. J., concur.

BROWN, J., dissents.