STATE EX REL. POLLACK

v.

SAPERSTEIN, ASSISTANT MUNICIPAL JUDGE ET AL.

THOMAS, Justice.

We are considering an appeal from an order quashing a rule nisi that had been issued prohibiting the appellee, Albert Saperstein, as Assistant Judge of the Municipal Court, from entertaining complaints from Henry Hallman about violations of a certain section of the city code and prohibiting Hallman from making affidavits as bases for prosecutions of the relator for infractions of that law. The rule was enlarged to prevent the Chief of Police and all officers under his control from prosecuting the relator or anyone in his employ for violations of the code. In the original and supplementary writs the persons to whom they were addressed were directed to desist or to show cause why the writs should not be made absolute.

At the outset we should say that all parties agree that the question of the constitutionality of the code is not now presented to this court for decision.

From the petition for the writ of prohibition we find the factual situation which the relator thought would furnish him remedy via prohibition. Hallman, member of the police department, obtained a warrant for the arrest of relator for violating an “anti-noise ordinance.” The relator is the representative of a corporation owning property on which a general j^ntractor is engaged in constructing a hotel. The hours of labor set by the union, the members of which the corporation employs, do not coincide with the hours to which work must be confined under the ordinance. It was charged that unless “restrained and prohibited” the judge would continue to assume jurisdiction of the cases presented by the police and that, consequently, these activities would disrupt progress of the construction and cause financial loss to the contractor. Just how this would affect relator who is an agent of the owner is not clear but to pursue that matter would only obscure the real point involved. As we view it, the writs were writs of injunction in the guise of writs of prohibition. The judge was not shown either to have acted without jurisdiction or to have acted in excess of his jurisdiction. On the contrary it was his duty to adjudicate cases arising from violations of existing ordinances. If anyone prosecuted for an infraction was aggrieved by the outcome he had abundant opportunity for review of any judgment against him. The effort of the relator to be relieved by prohibition of any responsibility for violations of the act was, in effect, an attempt to use a writ, very narrow in the scope of its operation, to prevent harassment from a multiplicity of prosecutions, regardless of their merits.

Such is not the purpose of the proceeding. A municipal court has as much right to function within its sphere as does the circuit court, and as does this court. Interference by a higher court with the operation of a lower one can be justified only when a tribunal undertakes to reach beyond its sphere. Vv'e see no semblance of such an overextension here.

We unqualifiedly sanction the order quashing the rule.

Affirmed.

ROBERTS, C. J., and DREW, J., concur. HOBSON, J., concurs specially.

HOBSON, Justice

(concurring specially).

I concur in the opinion prepared by Mr. Justice THOMAS. However, as I understood counsel for appellant who argued this case, he not only was seeking a writ of prohibition upon the basis of preventing a multiplicity of prosecutions but it was also his position that a writ of prohibition should issue because the section of the City Ordinance under which his client was being prosecuted is unconstitutional and that he had a right to challenge the constitutionality of the Ordinance and at the same time secure the writ of prohibition sought because if the Ordinance be unconstitutional then the assistant municipal judge would be exceeding his jurisdiction and authority if he entertained the prosecutions under the allegedly unconstitutional Ordinance.

The Circuit Judge decided that “Section 6 and Subsection 2 of Section 7 of the Anti-Noise Ordinance of the City of Miami Beach, the same being Ordinance No. 497,-are unconstitutional.” But he made the further observation “Whether the elimination of these two sections from the Ordinance so destroys the legislative intent as to render the entire Ordinance void, is a question the Court is not now required to determine, for it is the Court’s opinion that the Petitioner had an adequate remedy by appeal from any judgment and sentence of the Municipal Court of the City of Miami Beach upon the prosecution for the violation of said Ordinance, and for this reason prohibition proceedings are inappropriate.” An examination of the transcript of record discloses the fact that Section 6 and Subsection 2 of Section 7 of the City Ordinance were not shown by the evidence to have been violated. Nor did the pleadings show that the prosecutions in the municipal court were predicated entirely upon violations of these sections of the Ordinance. Consequently, the position taken by counsel is untenable.

As stated by Mr. Justice THOMAS, the question of the constitutionality of the City Ordinance is not now before this court for determination. Had the Circuit Judge determined the Ordinance or any section thereof which might have been shown by the evidence to have been violated to be unconstitutional, counsel for appellant’s contention would probably have been well taken, for this court held in State ex rel. York v. Beckham, 160 Fla. 810, 36 So. 2d 769, 773, that “Prohibition may be employed to restrain an excess of jurisdiction as well as to prohibit the exercise of judicial power where none exists”; and in the case of State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374, 375, 376, we said: “Obviously, also, if such statutory provision be unconsti tutional and void, such jurisdiction has never been conferred, and the writ of prohibition may be resorted to, to prevent the usurpation of such jurisdiction. This is one of the primary purposes of the writ of prohibition, which, as was said in the Crill Case [Crill v. State Road Dept., 96 Fla. 110, 117 So. 795], ‘is that process by which a superior court prevents an inferior court from exceeding its jurisdiction or usurping a jurisdiction with which it has not been vested by law.’ So writ of prohibition is the appropriate remedy in this case. * * * ”