[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 655 Defendant in error was informed against in the Criminal Court of Record of Dade County charged with violation of the provisions of Chapter 16066, Acts of the Legislature of 1933. Section 1 of that Act provides:
"It shall be unlawful to hold possession of lands or houses by any lessee whose lease has expired and no new lease thereon has been executed or agreed upon after ten days' written notice to vacate from the owner or his agent of such property to such lessee."
Section 2 provides that the violation of Section 1 shall constitute a misdemeanor and provides punishment therefor.
After being arrested the accused sued out writ of habeas corpus contending that the Act is unconstitutional. The return of the sheriff showed that petitioner was held under a capias issued out of a court of competent jurisdiction charged with the offense above referred to.
On hearing, Circuit Judge Thompson held the Act to be unconstitutional. Just what provision of the State or Federal Constitution is violated by the Act is not made to appear either in the judgment of the court below or in the briefs filed in this Court. It appears to us that the statute denounces a statutory trespass. It simply declares it to be unlawful for one who has held a lease of lands, or houses, and whose lease has expired and no new lease thereon has been executed or agreed upon to hold possession of such *Page 656 lands, or houses, after ten days written notice from the owner, or his agent, to vacate such property.
Why it should not be unlawful, if the Legislature should think it wise to do so, for one to hold that of another to which the person holding has no right and after due and timely notice to relinquish such holding, we can see no good reason. Crimes from early days have been divided into things that are criminal because they are mala in se and crimes which are such because they are prohibited by statute or mala prohibita. The former class embraces those acts which are immoral or wrong in themselves such as burglary, larceny, arson, rape, murder and breaches of the peace; while the latter embraces those things which are prohibited by statute because they infringe upon the rights of others, though no moral turpitude may attach, and they are crimes only because they are prohibited by statute. See 4th Blackstone Commentary 8, Commonwealth v. Adams,114 Mass. 323, 16 C. J. 38, 8 R. C. L. 55.
Unquestionably, it is within the province of the Legislature to declare acts to be criminal which were, prior to such declaration, merely civil wrongs. See State v. Hildenbrand,62 Neb. 136, 87 N.W. 25; State v. Dowling, 92 Fla. 848, 110 So. 523. In the latter case we had under consideration the validity of Chapter 9288, Acts of 1923, Laws of Florida, which denounced as criminal the act of disposing of personal property subject to a written lien without the written consent of the lienee. Therein we said:
"The act in other words tends to stabilize the sale and barter in personal property under the lien or written conditional sale contract, and to fix its situs within the knowledge of the licensee or vendor while so burdened. It deals solely with property that is in its very nature perishable, is subject to rapid depreciation in value, is easily secluded, *Page 657 and is readily transported from place to place. As to such property no good reason is indicated why the person, firm or corporation holding the lien or conditional sale contract should not be awarded the protection the Act affords.
"What then is the substance and spirit of the Act as thus analyzed? 'It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.' It is readily apparent that the sense and reason for the law here questioned is primarily the protection of those who advance money on personal property, or who are in the business of selling personal property and take a retained title note or conditional sale contract back as security for deferred payments. The Act in other words under such circumstances proceeds on the theory that both the lienor and the lienee and the vendor and the vendee have a substantial right or interest in the subject matter of the lien or sale and seeks to protect the lienee and the vendor against any undue advantage that might be taken on the part of the lienor or the vendee.
"Limitations on the freedom of contract, the use of property, the incidents of ownership of property and the right of the owner to dispose of his property may be said to be among the outstanding developments in the law of all English-speaking people during the last half century. In the beginning these limitations were conceived in terms of the abstract individual or debtor and were not always viewed by court or laity with favor, but the growth and complication of our economic order has witnessed a marked shift from the measurements of these limitations, in terms of the abstract individual to that of measuring them in terms of the social order or interest and when so measured they have generally been upheld. Such acts, no doubt like *Page 658 many others, are at times exploited for base and selfish purposes; but this goes to the question of policy with which the Legislature alone is concerned. We fail to see where the Act in question imposes an unreasonable hardship on plaintiff in error in the use, ownership and disposition of her property, while on the other hand we think it imposes a reasonable limitation on the use of all personal property under lien, and was well within the inherent power of the Legislature to promulgate.
"It is next contended that Chapter 9288, Laws of Florida, is unconstitutional and void in that it amounts to conviction and imprisonment for debt where no fraud is charged.
"This assault is grounded on Section 16 of the Declaration of Rights of the Constitution of Florida, which is as follows: 'No person shall be imprisoned for debt except in case of fraud.' It is proper to note in this connection that the Federal Constitution carries no such provision.
"In support of this assignment it is first contended that the statute is invalid in that it omits and fails to require proof of the element of criminal or fraudulent intent. In response to this contention it is enough to say that the rule seems well settled that when a statute makes criminal an act not malum inse or infamous without requiring the act to be knowingly or willfully done, a criminal or fraudulent intent is not an element of the offense, and need not be proven. Mills v. State,58 Fla. 74, 51 So.2d Rep. 278; Halstead v. State, 41 N.J.L. 552, 32 Am. St. Rep. 247; Haggerty v. St. Louis Ice Manufacturing Storage Co., 143 Mo. 238, 44 S.W. Rep. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647; State v. Foster,22 R.I. 163, 46 Atl. Rep. 833, 50 L. R. A. 339; Note Vol. 11 L. R. A. 807; 8 R. C. L. 62."
The right to contract is not involved in the case at bar *Page 659 and neither is the construction of a contract involved here. The wisdom, policy and necessity of statutes are matters to be determined by the Legislature. See Bailey v. Van Heldt, 78 Fla. 337, 82 So. 789. The courts are bound to uphold the statute unless it is clearly made to appear to be beyond a reasonable doubt that it is unconstitutional. State v. Bryan, 50 Fla. 293, 39 So. 929; Stewart v. DeLand-Lake Helen Special Road Bridge District, etc., 71 Fla. 158, 71 So. 42; Ex Parte Pricha,70 Fla. 265, 70 So. 406.
One who comes into lawful possession of land otherwise than by the act of law and continues to occupy it after his right of occupancy has ceased and without any right or title in and to the land is a tenant at sufferance. Brown v. Markham, 56 Fla. 202, 48 So. 39. Tenancy at sufferance is not based on contract. A tenant at sufferance has no estate or title but only naked possession without right. Camp v. Ellis, 71 Fla. 193, 70 So. 1006.
In Baker v. Clifford-Mathews Inv. Co., 99 Fla. 1229, 128 So. 827, we said:
"A tenancy at sufferance is said to exist where a person comes into possession of lands lawfully and after his estate has ended holds over wrongfully."
So the holding possession of lands or houses under the conditions denounced in this statute has ever been held to be a wrongful holding. It is appropriating the rights of another. Sec. 5275 R. G. S., 7394 C. G. L., provides:
"Whoever forcibly enters into the possession of the lands and tenements of another, and does not, upon demand made by the party entitled to possession, vacate the same within four days after the demand, shall be punished by a fine not exceeding one thousand dollars."
Section 5276 R. G. S., 7395 C. G. L., is so much like the statute here under consideration that the reason for *Page 660 the passage of the present statute is hardly discernible. It is as follows:
"Any tenant in possession of any parcel of land or tenement under a written lease, who shall hold possession of such property after the expiration of fifteen days after demand in writing made upon him by the owner or agent for such possession after the expiration of such lease, shall be punished by imprisonment not exceeding thirty days, or by fine not exceeding one hundred dollars."
Section 5252 R. G. S., 7371 C. G. L., provides as follows:
"Whoever willfully enters into the enclosed land and premises of another, or into any private residence, house, building or labor camp of another, which is occupied by the owner or his employees, being forbidden so to enter, or not being previously forbidden, is warned to depart therefrom and refuses to do so, or having departed re-enters without the previous consent of the owner, or having departed remains about in the vicinity, using profane or indecent language, shall be punished by imprisonment not exceeding six months, or by a fine not exceeding one hundred dollars."
In Monneyham v. Bowles, 72 Fla. 259, 72 So. 931, this Court having this section under consideration, said:
"The gravamen of the offense denounced by Section 3403 is the entry by one upon the enclosed land or premises of another occupied by the owner or his employees after having been forbidden to enter, or not having been previously forbidden refusing to depart therefrom after being warned to do so. It is difficult to perceive how an entry by one upon the enclosed premises of another after having been forbidden so to enter, could be otherwise than willful, unless the accused was mentally irresponsible, in which case *Page 661 his mental condition would be held to exonerate him from the charge of criminality."
It is contended that the statute is invalid because it is apparent that its terms are for the protection of the lessor in the enjoyment of his property. Conceding that to be true, we find no reason for the deduction that the statute is therefore invalid. All statutes against trespass are primarily for the protection of the individual property owner, but they are also for the purpose of protecting society against breaches of the peace which might occur if the owner of the property is required to protect his rights by force of arms.
We are unable to find wherein the statute violates the organic law. Therefore, the judgment should be reversed and the cause remanded with directions that the petitioner be remanded to the custody of the sheriff to be dealt with according to law.
It is so ordered.
ELLIS, P. J., and TERRELL, J., concur.
WHITFIELD, C. J., and DAVIS, J., concur in the opinion and judgment.
BROWN, J., dissents.