From an order dated November 19, 1941, entered by the Circuit Court of Hillsborough County, Florida, holding valid and denying an injunction to restrain the enforcement of an Ordinance No. 804-A, enacted October 7, 1941, by the City of Tampa, an application has been made here under Rule 34 to have reviewed by this Court the aforesaid interlocutory order.
The challenged Ordinance is viz.:
"Ordinance No. 804-A "An Ordinance to Prohibit the Sale of All Alcoholic Beverages Within the City of Tampa on Sunday.
"Be It Ordained by the Board of Representatives of the City of Tampa:
"Section 1. That it shall be unlawful to sell or barter any beer, wine, liquor or other alcoholic beverages within the City of Tampa on Sunday.
"Section 2. Any person, firm, or corporation violating Section 1 hereof shall be punished by imprisonment not to exceed ninety days or fine not exceeding $200.00, or both fine and imprisonment in the discretion of the Court. Each sale shall constitute a separate offense.
"Section 3. This ordinance shall not apply to a sale made by a drug store for medicinal purposes on prescription of a regularly licensed practicing physician.
"Section 4. This ordinance shall go into effect if a majority of the votes cast for and against it at the general election to be held in the City of Tampa, *Page 484 November 4, 1941, are for its ratification. But in the event a majority of the votes cast are not for ratification, it shall be in effect in any district of the City in which a majority of the votes cast for and against it are for ratification.
"Section 5. There shall be placed on the general election ballot for the general election to be held in the City of Tampa on the 4th day of November, 1941, the following question, to-wit:
"For ratification of Ordinance No. __________ (here insert number of this ordinance) prohibiting the sale or barter of any alcoholic beverage within the City of Tampa on Sunday.
"Against ratification of Ordinance No. __________ (here insert number of this ordinance) prohibiting the sale or barter of any alcoholic beverage within the City of Tampa on Sunday and provision shall be made so that the voter may indicate his choice by making a cross (x) opposite the side of the question voted for.
"Section 6. This ordinance shall be published as provided by law."
It is disclosed by the record that on the 4th day of November, 1941, at a General Election held in the City of Tampa when the adoption or rejection of the aforesaid ordinance was balloted upon by the qualified electors of said city, 5,791 votes were cast against the adoption and for the rejection thereof, and 3,558 votes were cast for the adoption and against the rejection. The ordinance prohibiting the sale of all alcoholic beverages in the city wide election was rejected or disapproved by a majority of 2,233 votes. Districts Nos. 2, 3, 8, 11, and 12 of said City each reflected majorities for the adoption of the ordinance, while Districts Nos. 1, 4, 5, 6, 7, 9, and 10 each reflected *Page 485 majorities against the adoption of said ordinance.
The power of the City of Tampa to enact the challenged ordinance is not questioned. It is permissible to make the effective date of a statute or ordinance contingent upon a ratification by a majority vote of the qualified electors of a municipality at an election therein provided for. See State ex rel. Cheyney v. Sammons, 62 Fla. 303, 57 So. 196; Nabb v. Andreu, 89 Fla. 414, 104 So. 591; Olds v. State, 101 Fla. 218,133 So. 641; City of Winter Haven v. State ex rel. Landis,125 Fla. 392, 170 So. 100; Voorgees v. City of Miami, 145 Fla. 402,199 So. 313. An ordinance appearing to be regular on its face is presumed to be valid. See State ex rel Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114; Moon v. Smith,138 Fla. 410, 189 So. 835.
It is to be observed from the result of the election that the ordinance prohibiting the sale of all alcoholic beverages within the City of Tampa on Sunday was not ratified or adopted by the electors and never became effective. It is contended that it is effective and operative in Districts 2, 3, 8, 11, and 12 of said City. Likewise the argument is advanced that the ordinance is not effective because the electors of Districts 2, 3, 8, 11, and 12 did not vote or express their views on District prohibition but on city wide prohibition. The allegations of the bill of complaint seeking a restraining order against the enforcement of the ordinance sustains this inference. The occurrence of the contingency making effective the challenged ordinance has not been made to appear. Whether or not a penal ordinance is effective and in force by a municipality should be free from all doubt and uncertainty. *Page 486
Section 12 of the Declaration of Rights of Florida provides that no person shall be subject to be twice placed in jeopardy for the same offense . . . nor deprived of life, liberty or property without due process of law. Due process of law requires that a person charged with an offense against a municipal ordinance shall be duly advised of the nature and cause of the accusation against him. See Wright v. Worth,83 Fla. 204, 91 So. 87. The ordinance challenged appears to have been enacted by the City of Tampa, but there is nothing to establish the happening of the contingency which rendered it effective, and for this reason the ordinance is rendered invalid. It is upon this point that the chancellor below declined to restrain the enforcement of the invalid ordinance and this was error.
The petition for an interlocutory writ of certiorari is granted and the challenged order is quashed, with directions that an appropriate order be entered by the chancellor below restraining the enforcement of the invalid ordinance.
It is so ordered.
BROWN, C. J., BUFORD, THOMAS and ADAMS, JJ., concur.
WHITFIELD, J., dissents.
TERRELL, J., not participating.