EX-PARTE E. W. BAILEY

Taylor, C. J.:

The errors assigned are: That the j udgment is contrary to, and not supported by, the evidence. That the court erred in remanding the petitioner to custody, and in holding that he was lawfully in custody.

It is practically admitted here in the briefs of counsel for the plaintiff in error that if the said Chapcer 4547, laws of 1897, is not obnoxious to the Constitution of the United States and of the State of Florida, that then, under the facts, the plaintiff in error has been properly committed and is rightfully held in custody. But they contend that he is illegally held because the said statute is repugnant to section 10 of Article 1 of the Constitution of the United States, that forbids the States to lay duties on exports, except such as may be absolutely necessary for the execution of its inspection laws. And that it violates the Fifth amendment to the Constitution of the United States, and section 12 of the Declaration of Rights in the Constitution of the State of Florida, both of which forbid the taking of property' without due process of law. And because it does not operate generally and equally.

From the view we take of the statute alleged to have been violated, it becomes unnecessary, if not im-. proper, for us to pass upon the constitutional questions raised, as the case can be fully disposed of without considering them. County Commissioners of Franklin Co. vs. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471. The established rule is that a penal law must be construed strictly, and according to its letter. Nothing is to be regarded as included within them that is not within their letter as well as their spirit; nothing that is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the Legislature. And where a statute of this kind contains such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that which operates in favor of life or liberty is to be preferred. Endlich on the Interpretation of Statutes, secs. 329 and 330. Guided by these settled rules of construction, whatever may have been in the mind of the Legislature in enacting the quoted section 8 of this act, that the petitioner is supposed to have violated, we do not think that the language employed therein will permit the construction that it forbids the taking of any samples from cargoes of phosphate at the exporting ports in Florida by any one, except the official sampler or his deputy, for any use or purpose whatsoever, either public or private; and that any one who thus withdraws or takes a sample of phosphate at any such port, except such •official or his deputy, violates the law, regardless of the intent with which the sample is taken, or the disposition made of it, or the purpose or use to which it is to be put. What may have been the real purpose of the Legislature in enacting the said section 8 of this act, is not disclosed except in the language it employs, taken in context with all the other provisions •of the act. The main leading object of the whole act is to secure through an official, created by State authority for that purpose, a fair representative sample of all phosphates exported from the ports of Florida, except that which has been already sampled at the-mines, or that is to be sampled at the foreign port of its destination, or that has been sold without guaranty as to its quality, which official sample is to be abundantly labeled by such official, for certainty of identification, and securely preserved within his official keeping. The legal effect of the language used in said section 8 is to require the official sampler or his duly appointed deputy personally to perform the act of drawing, mixing, labeling, filing and preserving this-official sample, and prohibits the drawing or taking-of any such official sample, to be filed and Iceptby the official sampler, by any one else except such official sampler or his deputy. If any other person than: such officials undertakes to perform the physical act of drawútg “the” official sample, to be filed, labeled, kept, represented and used as such by the official' sampler, then, and then only, would he violate the-provisions of said section of this law. The legal effect of said section is not to prohibit the owner of phosphates or his authorized agent from drawing and taking samples thereof wheresoever, whensoever and as. often as he pleases, for his own private purposes and uses, so long as he does not trench upon the duties of the official sampler by undertaking to draw for him-“the” official sample that the law requires such official personally to draw, label and preserve within his official keeping. No such violation of the law is pretended to be charged in the affidavit upon which this-arrest was made, nor do the existent facts as agreed upon show any violation of this or any other law.

The plaintiff in error has been charged with, arrested for, and held to answer an inoffensive act,, that violates no law, and for which no court has ju~ risdiction to try him or to punish him. Finding this-to be the case, as we are permitted to do by the settled rule of this court upon a proceeding-in habeascorpus (Ex parte Hays, 25 Fla. 279, 6 South. Rep. 64; Church on Habeas Corpus, sec. 849), the order of the Circuit Judge remanding the plaintiff in error to custody is reversed, with directions for the entry of' an order discharging him from custody.