State ex rel. Cheyney v. Sammons

62 Fla. 303 | Fla. | 1911

Whitfield, G. J.,

{after stating the facts.) — The title of the act indicates a purpose to provide for the creation of a new county and also for the organization and government thereof. The statute is complete in itself and it is expressly provided that the first nineteen sections thereof shall take effect upon the contingency of an affirmative vote of three-fourths of the votes cast at an election to be held under the last two sections of the act in the territory set forth in the act as the County of Pinellas.

When the requisite vote was cast it afforded the contingency upon Avhich the act' by its terms became effective. Upon thus taking effect the County of Pinellas was thereby established. The organization and government of the county depended upon the operation of the sections of the act designed for that purpose. Such organization and government are political matters to be made effective by the executive department in the manner and by the means prescribed in the act. In providing that the act shall become effective upon the casting of the requisite vote and that the Governor shall on or before December 15th, 1911, appoint all the officers to which said county may be entitled under the constitution and laws of the State, the clear legislative intent is that the county shall be established upon the happening of the contingency of the affirmative vote stated, and that within the time stated in the act the organization and government of the county shall be effected upon executive appointment and qualification of the chief administrative officers having jurisdiction over the entire territory embraced in the new county. If for any reason justices of the peace and constables are not appointed when the general administrative officers of the county are appointed and the organization and government of the county .thereby accomplished, such organization is not thereby affected. Even though there is no express provision to that effect, it clearly was the legislative intent to avoid a hiatus in the government by impliedly requiring the officers of the old county to perform their respective duties at least until the organization of the county government is effected by the appointment and qualification of the general officers of the new county. The justice of the peace should issue proper process in his former jurisdiction, at least in the absence of a showing that the county government has been established as contemplated by the act, the time limited for such organization not having expired. No serious inconvenience can result from the temporary lack of a justice of the peace in the county after a county judge for the county is in commission and the government of the county is in operation, since the county judge has the jurisdiction of a justice of the peace for the entire county.

This conclusion would of itself require the writ to be made peremptory and dispose of the case, but counsel request that in the interest of the public welfare, the constitutional questions raised by the pleadings be determined.

The contention that Section 1 of the act is not the section that was passed by the legislature as the journals show an amendment that is different from the section as it appears in the statute.

As the constitution does not require amendments of pending bills to be referred to in the journals, the Act as Approved by the Governor must be taken as the legislative act in the absence of an affirmative showing by the journals that a materially different act was in fact passed by the legislature. Here the journals do not affirmatively show that the bill when pending was not amended after the amendment above referred to and such an amendment may reasonably be assumed since the first amendment as adopted is apparently defective and needed amendment. West v. State, 50 Fla. 154, 39 South. Rep. 412; Goff v. Rickerson, 61 Fla. 29, 54 South. Rep. 264.

It is also contended that the description of the territory to be included in the new county is so indefinite as to render the act void, since the southern boundary is described as follows: “thence south to the shore of Old Tampa Bay, thence in a southerly direction through the waters of Old Tampa and Tampa Bay, to a point in Tampa Bay due east of the North Shore of Mullet Key.” A defect in the description of the territory included in the new county does not render the act unconstitutional or invalid. The act is not void unless the legislative intent cannot be effectuated, because the description is so defective as not to include substantially all of the intended territory, or because the defective description will include or exclude territory not intended, so as to make it appear that the act would not have been passed if the defective description ■ had been known, or because it is so entirely defective as to be unintelligible or to' render the act unenforceable in its essential features. The description contained in the act requires the line to run from the north “to the shore of Old Tampa Bay, thence in a southerly direction through the waters of Old Tampa and Tampa Bay to a point in Tampa Bay due east from the north shore of Mullet Key.” It is clear the legislature intended the boundary line from the point where it reaches, from from the north, the shore of Old Tampa Bay, to run in a southerly direction through the middle of the waters of Old Tampa and Tampa Bay “to a point in Tampa Bay due east of the north shore of Mullet Key.” Such a line through the waters would run in a general southerly direction and would make the territorial limits of the two counties in a natural way and define with reasonable accuracy the jurisdiction over public and private rights in the waters. If an unequal division of the waters had been intended it would have been expressly defined. As thus construed, the description of the boundaries of the new county is sufficiently definite and certain.

It is competent for the legislature to enact a law complete in itself to take effect of its own force upon the happening of a contingency. Cotton v. County Commissioners of Leon County, 6 Fla. 610; State v. Atlantic Coast Line R. Co. 56 Fla. 617, 47 South. Rep. 969, and cases cited.

The purpose of the provision of this act that it shall take effect upon the casting the a designated affirmative vote provided for in the act, is to make the act complete in itself effective upon the happening of the stated contingency. This contingency is the affirmative vote of the electors in the territory to be affected, and there can be no valid objection to such selection by the law as the matter upon which its complete terms is to operate.

The provision in the act for a county seat is subject to the constitutional provision that such establishment is only temporary or until a county seat is duly established under the law. It was the duty of the legislature to designate a county seat for immediate purposes, and the political effect of the selection made cannot be considered by the court.

Section 7 of the act is not an ex post facto law. The provisions of this and other sections of the act are incident to authority and duty undoubtedly vested in the law-making power. Kroegel v. White, decided this term. Any imperfections that may be in the statute do not affect the constitutionality of the act in establishing the county and its government.

A peremptory writ will issue in the absence of a showing that a county government has been established in Pinellas County under the authority of the political department of the State government, the time limited for such organization not having expired.

Shackleford and Cockrell, J. J., concur; Taylor, Hocker and Parkhill, J. J., concur in the opinion.