Under the long established decisions of this Court it is indispensable to allege, and prove, whether the proceedings be in a municipal court or in a state court, that a county has voted against the sale of intoxicating liquors, in order to maintain a penal proceeding or prosecution for unlawfully selling intoxicating liquors under circumstances where the sale can only be unlawful because of the result of a local option election duly called and held in the county resulting in a vote prohibiting such sale. Cook v. State, 25 Fla. 698, 6 Sou. Rep. 451.
An indictment or information for an offense (such as selling intoxicating liquors in a "dry" county) which can only exist because of the existence of facts outside the law itself, such as the vote of an election resulting in a prohibition of the sale of liquors in a county, must necessarily allege, in order to chargeany offense at all, the fact of the holding of the involved local option election, and that it resulted against the sale of intoxicating liquors in the county named, as well as the fact of the prohibited sale. Randall v. Tillis, 43 Fla. 43,29 Sou. Rep. 540.
Furthermore, the rule in this state is that municipal ordinances themselves must be pleaded when an offense under them is charged. Freeman v. State, 19 Fla. 552. In this case neither of the long established rules relating to the charging of violations under the involved municipal ordinance was complied with, so I think the judgment remanding *Page 717 the prisoner was erroneous insofar as it remanded him for a proper sentence.
The judgment should have discharged petitioner from the conviction and remanded him for appropriate proceedings under an amended affidavit properly charging the violation of the ordinance prohibiting the sale of intoxicating liquors in the City of Arcadia, if indeed it is a municipality situate in a county that had voted against the sale of such liquors and was still in that status under the amended prohibition article as recited in the findings of the Circuit Judge.