concurring.
The Civil Court of Record of the County of Duval was established under the provisions of Sections 3310-3324 Revised General Statutes. Section 3321 provides that the Circuit Court shall have appellate jurisdiction in all cases decided by the Civil Court of Record in the same manner and with the same limitations as in writs of error from the Circuit Courts to the County Court.
Section 3322 provides that where the Circuit Court has rendered a judgment in any case appealed from the Civil Court of Record it shall be competent for the Supreme Court to require by certiorari or otherwise, upon petition of any party thereto any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by writ of error to the Supreme Court. The section provides that in case such course is pursued the petition must be filed in the Supreme Court within thirty days after the rendition of the- judgment by the Circuit Court.
County Judge’s Courts and County Courts are expressly provided for by the Constitution. Section 16 of Article Y of the Constitution provides that there shall be elected by the qualified electors of each county a County Judge. *270Sectuion 17 of the same Article prescribes his jurisdiction. Section 18 provides that the legislature may organize County Courts in such counties as it may think proper and when such County Courts are organized the County Judge shall be the Judge of the said court.
Section 11 of Article Y provides that the Circuit Court shall have final appellate jurisdiction in all civil and criminal cases arising in the County Court or before the County Judge and of all misdemeanors tried in criminal courts and of all judgments or sentences of any Mayor’s Court and of all cases arising before Justices of the Peace in counties in which there are no County Courts.
In the case of Benton v. State, 74 Fla. 30, 76 South. Rep. 341, this court held that the common law writ of certiorari could not be made to serve the purpose of an appellate proceeding in the nature of a writ of error with a bill of exceptions. While a certiorari is appellate in its character in the sense that it involves a limited review of the proceedings of an inferior jurisdiction, it is original in the sense that the subject matter of the suit or proceeding which it brings before the court are not here reinvestigated, tried and determined upon the merits generally as upon appeal at law or writ of error. This language was the language of Mr. Justice Westcott in the case of Basnet v. City of Jacksonville, 18 Fla. 523.
In the Benton case we pointed out that the certiorari issued in that case was a common law writ upon which “we neither affirm nor.reverse a judgment, nor try the case upon its merits. We must either quash the proceeding of the Judge of the Circuit Court or quash the certiorari which brings it here.”
In the case of Haile v. Bullock, 83 Fla. 538, 91 South. *271Rep. 683, which was a certiorari with a bill of exceptions in which the Circuit Court had' affirmed on appeal a judgment in the County Judge’s Court, this court, speaking through Mr. Justice Whitfield, said: “In this case a bill of exceptions was authenticated and filed in the trial court. The statute makes it a part of the record in the cause,, and on certiorari the record may be examined to determine whether the court proceeded according to the essential requirements of the law in the trial of the cause and in rendering judgment.
In that case the defendant in the courts below was charged with unlawfully having in his possession certain intoxicating liquors contrary to the statute. The liquor was found in the defendant’s private dwelling as disclosed by the bill of exceptions, but there was no evidence that the “moonshine liquor” found in the defendant’s residence was intoxicating or that it was used for unlawful purposes. It was pointed out that the Federal Statute which is controlling expressly permits the possession of intoxicating liquor in one’s private dwellinig for family use and that “moonshine liquor” is not by statute declared to be intoxicating or prima, facie intoxicating. Upon this showing as made by the bill of exceptions it was held by this court that the judgment was erroneous because there was no. evidence upon which the verdict and judgment could rest. It was apparent therefore from the record that the proceedings in that ease were not in accordance with the essential requirements of the law.
In the case of Atz v. Andrews, decided by this Court on June 30th, 1922, the Court, upon a certiorari with bill of exceptions held that the judgment of the Circuit Court should be quashed. The reason operating upon the majority of the Court for such holding was that where one *272of the essential facts to be proved in a charge of unlawful possession of intoxicating liquor was the intoxicating quality of the liquor, that it was not in accordance with the essential requirements of the law to permit the State’s counsel, over an objection by the defendant, to state to the jury that the liquor was intoxicating and that he knew it to be intoxicating. That such a statement made by State’s counsel in the presence of the jury, not in argument before the jury, but upon an application for further time to produce evidence as to the intoxicating quality of the liquor and the Court’s order overruling the defendant’s objection to such a statement was equivalent to a pronouncement by the court that a material and essential fact to be proved by the State in the prosecution was established against the defendant. For that reason a majority of the court in that case quashed the judgment, though no opinion was written by the court.
These eases mark the limit to which this court has, upon a writ of certiorari, considered the evidence presented by a bill of exceptions. But in a case like the instant one, where a statutory provision is expressly made that in cases arising in Civil Courts of Record this court shall upon certiorari review and determine the case with the same power and authority as if it had been brought to this court by writ of error, I am of the opinion that this court may examine the case upon its merits as presented by the bill of exceptions and determine whether there was any substantial evidence to support the verdict. For that reason I think that in this case a writ of certiorari should be issued. I am authorized to state that Mr. Justice West concurs in this opinion.
West, J., concurs.