100 Fla. 1277 | Fla. | 1930
Lead Opinion
A rehearing is requested in this case on the theory that Chapter 11363, Acts of 1925, and the amendatory acts Chapter 11982 Acts 1927 and Chapter 13611 Acts of 1929, are not local or special laws, but general laws.
Chapter 11363, Acts of 1925, Extraordinary Session, "An Act to establish a Criminal Court of Record in the County of Palm Beach," is a local law, since it is expressly made applicable to a particular county. See State ex rel., v. Daniel,
But Section 20, Article III, Constitution, expressly forbids a local or special law "regulating the jurisdiction and duties of any class of officers, except municipal officers," and also forbids special or local laws, "regulating the fees of officers of the State and county," therefore the provisions of Chapter 11363, a local law, relating to the duties and compensation of the Clerk of the Criminal Court of Record in Palm Beach County, being expressly forbidden by Section 20, Article III, would be inoperative if they did not merely refer to the general laws on the subject. Sec. 8238 Comp. Gen. Laws, Chapter 11982 and 13611 are inoperative being special or local laws forbidden by Sec. 20-21, Art. III. Section 30, Article V, provides that "the clerk of said court shall be elected by the electors of the county in which the court is held and shall hold office for four years, and his compensation shall be fixed by law." But Section 20, Article III, expressly forbids special or local laws "regulating the fees of officers of the State and county." This materially differentiates the effect of the provision of the Statute establishing the court and the effect of the provisions as to the compensation of the clerk of the court.
Section 30, Article V, contains no language indicating an organic intent that the last clause, viz: "And his compensation shall be fixed by law," confers authority to be exercised without reference to other organic provisions as *1281
to such laws, or that the last quoted provision shall prevent or dispense with the operation of Section 20, Article III, forbidding local or special laws regulating the fees of county officers. Provisions similar to the last quoted clause appear in Section 27, Art. III, Sections 6 and 7, Article VIII, or Sections 16 and 21, Article V. See State ex rel. v. Shepard,
Section 30, Article V, does not require legislation to authorize the election of a clerk for a criminal court of record when it is established in a county. The Constitution itself requires such election under the general laws on the subject. The organic section requires the compensation of such clerk to be fixed by law. In the absence of any provision indicating a contrary intent, the provision means that the compensation of the clerk shall be fixed by such a law as is required by other provisions of the Constitution affecting laws regulating the fees of county officers.
Special or local laws that are forbidden by Sections 20 and 21, Article III, Constitution, cannot legally be enacted even if notice thereof be published as required by the proviso to Section 21. In the latter section it is expressly provided that "in all cases not enumerated or excepted in" Section 20, "the legislature may pass special or local laws; Provided that no local or special bill shall be passed unless notice" thereof be published as required by law, "in the locality where the matter or thing to be affected may be situated." "This proviso is general in so far as it is applicable; and it applies to matters or things having a local status." "It is only where the matter or thing to be affected is situated in some locality, that the proviso is operative." State ex rel. v. Co. Comms.,
A statute not forbidden by Sections 20, 21 and 25, Article III, and Section 4, Article VIII, Constitution, though local or particular in its application, and not predicated upon a classification, may not be such a local or special law as is within the intent and meaning of the proviso to Section 21, Article III, Constitution, if the statute is designed to accomplish a State purpose as distinguished from a county, district, municipal, community, group or individual purpose. For example, the establishment of a new county may be regarded as a state and not a local purpose. Under Section 3, Art VIII, Constitution, the legislature has power "at its pleasure to establish new counties." State ex rel. v. Comrs.,
Section 20, Article III, forbids the legislature to enact a local or special law fixing the fees of county officers. A law fixing the compensation of a particular county officer, in this case the clerk of the Criminal Court of Record of Palm Beach County, is both a special and a local law. Section 30, Article V, expressly provides that the compensation of such clerk shall be fixed by law; but this means such a law as is required by other provisions of the *1283 Constitution. Sections 20 and 21, Article III, require a general law on the subject and there is nothing in Section 30, Article V indicating an organic intent that a law fixing such compensation may be enacted without reference to Sections 20 and 21, Article III, Constitution. Section 30, Article V, is quite different from Section 24, Article V, with reference to the prerequisites to legislation that is required to effectuate the organic sections respectively. The subjects regulated are quite different in their nature.
Section 24, Article V, authorizes the establishment of a criminal court of record in any county "upon application of a majority of the registered voters in such" county. This contemplates a local law in each case and Section 20, Article III, does not forbid local laws establishing courts. Section 30, Article V, requires the compensation of the clerk of the criminal court of record to "be fixed by law." As the organic law contemplates the establishment of more than one criminal court of record in the State, each of which is to have a clerk who is a county officer, and as Section 20, Article III, forbids local or special laws regulating the fees of county officers, the intent of Section 30, Article V, is that the law fixing the compensation of the clerk shall be a general law as required by Section 21, Article III, there being nothing in Section 30, showing an intent to dispense with the operation of Sections 20 and 21, Article III, in fixing the compensation of county officers. Section 30, Article V, also requires the fees of the sheriff to be fixed by law meaning, of course, a general law in accordance with Sections 20 and 21, Article III. See Sections 16 and 19, Chapter 3731, Acts 1887; Sections 8238, 8265, Comp. Gen. Laws, 1927.
An Act establishing a criminal court of record in a county is not a special or local law that is forbidden by *1284 Section 20, Article III. It is not a special or local law of which notice is required to be published by Section 21, Article III, for the reason that Section 24, Article V, gives express particular authority to establish a criminal court of record in any county "upon application of a majority of the registered voters in such" county. A special or local law regulating the fees of a county officer is forbidden by Section 20, Article III, and the provision of Section 30, Article V, that the compensation of the clerk of a criminal court of record "shall be fixed by law," means a general law, since more than one such clerk is contemplated, and there is nothing in Section 30, Article V, or in the nature of the subject of regulating the fees of county officers to relieve it from the operation of Sections 20 and 21 of Article III of the Constitution.
The subject and special provisions of Section 24, Article V, and the nature of the subject of Section 3, Article VIII, make Sections 20 and 21, Article III, inapplicable to those sections; but it is not so with the provisions of Section 30, Article V, relating to the compensation of county officers, as to which subject local or special laws are expressly forbidden by Section 20, Article III.
Rehearing denied.
TERRELL, C. J., and STRUM and BROWN, J. J., concur.
ELLIS and BUFORD, J. J., dissent.
Dissenting Opinion
This case was before this Court and the opinion and judgment was filed herein on May 12th, 1930. See 128 So. R. 489. The judgment became effective upon the going down of the mandate on June 13th, 1930, no motion for hearing having been filed *1285 during the period allowed by the rules of this Court for such procedure.
There has now been filed in this cause a petition praying that the Court recall its mandate and reconsider its judgment as heretofore rendered.
The history of the cause is recited in the original opinion.
Upon considering the questions raised by the suggestion that the mandate be recalled and the judgment be reformed, I have arrived at the conclusion that the judgment, though based upon an erroneous conception of the law here applicable, would necessarily be reaffirmed on other grounds.
Section 24, Article V of our Constitution is as follows:
"There shall be established in the County of Escambia and upon application of a majority of the registered voters in such other counties as the legislature may deem expedient, a Criminal Court of Record, and there shall be one Judge for each of the said courts, who shall be appointed by the Governor and confirmed by the Senate, who shall hold his office for four years, and whose salary shall be one thousand dollars a year, the counties paying the salaries."
Section 30, Article V, is as follows:
"The Clerk of said court shall be elected by the electors of the county in which the Court is held and shall hold office for four years, and his compensation shall be fixed by law. He shall also be Clerk of the County Court. The Sheriff of the County shall be the executive officer of said Court, and his duties and fees shall be fixed by law."
In Weinberger v. Board of Public Instruction of St. Johns County,
"The principal is so well established that, where the constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Holland v. State,
15 Fla. 455 , text 523.See also Grantham v. Board of Public Inst.,
77 Fla. 540 , 82 So. R. 52. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the legislature to enact a statute that would defeat the purpose of the constitutional provision. State ex rel Murphy v. Barnes,24 Fla. 29 , 3 So. R. 433; State ex rel Church v. Yeates,74 Fla. 509 , 77 So. R. 262; Leonard v. Franklin,84 Fla. 402 , 93 So. R. 688. See also, Cooley's Const. Lim. (7th Ed.) p. 114; Coleman v. Town of Eutaw,157 Ala. 327 , 47 So. R. 703; Bryan v. Sundberg,5 Tex. 418 ; District Township v. Dubuque,7 Iowa 262 ."
It appears to me, therefore, that chapter 11363, Extraordinary session of 1925, was enacted under authority of Section 24, Article V of the Constitution, above quoted, and that the provisions of Section 11 of that chapter were included therein under the provisions of Section 30 of Article V of the Constitution. The establishment by the legislature of the Criminal Court of Record of Escambia County was not accomplished by a special or local law as is contemplated under Sections 20 and 21 of Article III of the Constitution. Neither has the establishing of a Criminal Court of Record in any other County of the State been accomplished by special or local law as *1287 contemplated in Sections 20 and 21 of Article III of the Constitution, but the establishment of each of such courts has been by a general law enacted under authority of Section 24, Article V, supra.
When such Courts are established, they each become a part of the general Judicial System of the State of Florida and perform their functions alike toward all persons and interests of the State which come within their territorial jurisdiction.
Section 30 of Article V of the Constitution authorized the Legislature to provide for the election of a Clerk for the Criminal Court of Record for Escambia County and to fix his compensation by law. It further provided that when the Legislature established under Section 24, supra, a Criminal Court of Record in any other County it should provide for the election of a Clerk of such Court and shall provide by law for his compensation, and it did not provide that the compensation of the Clerk of the Criminal Court of Record of Escambia County should be the same as that fixed by law for Clerks of the Criminal Courts of Record of other counties, or vice versa.
If the legislative Act establishing the Criminal Court of Record of Escambia County had provided that the compensation of the Clerk thereof should be $5,000.00 per annum, the provision must have been held to be a valid part of a general Act under authority of Section 30, Article V, supra. Then had the Legislature under authority of Section 24, supra, established a Criminal Court of Record of Hillsborough County the Legislative Act could have provided a salary of $4,000.00 per year for the Clerk thereof under authority of Section 30, supra. Neither the provision in the Escambia County Act nor the provision in the Hillsborough County Act would be paramount to the other and each would have complied with the special provisions *1288 of the Constitution in regard to establishing Criminal Courts of Record. If such different provisions would have each been valid when found in the first two Acts establishing such courts, it follows that the Constitution contemplates that the Legislature may fix the compensation of the Clerk of the Criminal Court of Record of any County, if and when the same is established. The part of the statute or a separate statute fixing the compensation of the Clerk of the Criminal Court of Record is no more a special or local law than is the Act establishing such Court.
In State v. Sullivan,
"The Legislature having the power in the manner prescribed in the Act to create the Court of Crimes and invest it with concurrent jurisdiction with the criminal court of record in all cases of misdemeanors, the power also exists in the Legislature by necessary implication to provide for all necessary incidents without which the court could not be properly organized and without which it could not properly function. State v. Etchman,
189 Mo. 648 , 88 S.W. R. 643."
In State ex rel. Donham v. Yancy,
*1292"The Act in question is, in no sense, special or local, within the meaning of the Constitution, because of the fact that it creates a court at one particular location. The same could as well be said with respect to all other courts in the State, to which all persons, without regard to habitation, appeal for the redress of wrongs done them, and the adjustment of their rights. The court created by the Act in question has original jurisdiction of all crimes committed within the county of Greene, as well, also, as of any criminal cases that may be taken thereto by change of venue from any other court in the State having criminal jurisdiction, it matters not where it may be. Its judge is commissioned and paid by the State, and it matters not where or when the court may be held; it is a criminal court for the State, as much so as the Criminal Court of St. Louis, Kansas City or St. Joseph. Since the adoption of the present Constitution, the number of judges of the circuit courts composed of the County of Buchanan as one circuit, and also of Jackson as another circuit, *1290 have been increased by legislative enactment, and it will not, we presume, be seriously contended that such legislation was either local or special. In State v. Hughes,
104 Mo. 459 , 16 So. W. R. 489, it was held that an Act of the legislature providing for the holding of two terms of the circuit court of that circuit at Montgomery City, in Montgomery County, was not a special or local law, and did not come within the provisions of Article IV, No. 54, of the Constitution, providing that 'no local or special law shall be passed until notice of the intention to apply therefor shall have been published in the location.' BRACE, J., in speaking for the Court, said: 'It is pre-eminently a State court, affecting in its operations all the cities of the State, deriving its power directly from the organic law of the State and the laws passed by the legislature in pursuance thereof, and whenever and wherever held, it is the circuit court of the State of Missouri, within and for the county in which it is held. It is not, and in no sense can be, a local court, nor can any law the legislature may pass regulating the time and place of holding its terms be a local law.' See also State v. Field, (Mo.Sup.) 24 So. W. R. 752; State v. Orrick,106 Mo. 111 , 17 So. W. R. 176, 329; Wilcox v. State, 3 Heisk. 110; Moore v. State, 5 Sneed 510; Cordova v. State, 6 Tex. App. 207[6 Tex. Crim. 207 ]; Conner v. Mayor, etc.,5 N.Y. 285 ; State v. Walton,69 Mo. 556 ."Whether an Act of the legislature be a local or general law must be determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates, and if it affects equally all persons who come within its range, can be neither special nor local within the meaning of the Constitution. Moreover, the general power *1291 of legislature to establish criminal courts in counties having a population exceeding 50,000 is clearly recognized by Sec. 31, Art. 6, of the Constitution, as prohibiting the establishing of criminal courts in such counties, by express terms, having a population of less than 50,000 people, is a recognition of the power to establish them in counties having a population exceeding 50,000. When there is a specific grant of power conferred by the Constitution upon the legislature upon any certain or particular subject, an Act passed in pursuance of such grant will not be held unconstitutional upon the ground that it is local or special legislation. State v. County Court of Boone Co., 50 Mo. loc. Cit. 324; State v. Watson,
71 Mo. 470 . Ewing v. Hoblitzelle,85 Mo. 64 . The fact that notice was given of the intended application to the legislature for the passage of a law creating the court in question, and of a court similar in all respects in Buchanan County, did not change the law, and was in all probability done through an abundance of caution; certainly not because it was a necessary prerequisite. If, as we have said, the Act of the legislature creating the criminal court of Greene County was not special or local legislation, and therefore not in contravention of the constitutional provision inhibiting such legislation, it must necessarily follow that any legislation pertaining to its administrative affairs is not local or special. The same reasons that we have given why the Act creating the court is not local nor special legislation, apply with equal force to the Act of 1893 creating the office of the clerk of said court and providing for the appointment of such clerk and the election of his successor or successors."
Section 53 of the Constitution of Missouri prohibits the passage of any local or special law,
"Regulating the practice or jurisdiction of or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, commissioners, arbitrators or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate."
Section 54, Article IV of the Constitution of the State of Missouri is as follows:
"No local or special law shall be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the General Assembly of such bill, and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the General Assembly before such Act shall be passed, and the notice shall be recited in the Act according to its tenor."
In the case of State ex rel. Carvey v. Buckner, 272 S.W. R. 940, the Supreme Court, referring to the provision of the paragraph above quoted of Section 53 of the Missouri Constitution, say:
"This section has frequently been here for construction, and the unvaried holding is that legislation authorized by the Constitution cannot be regarded as local or special, although its application is purely *1293 local. It is also held that whether an act be local or special must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates, and, if it affects equally all persons who come within its operation, it can not be local or special within the meaning of the Constitution. State ex rel Judah v. Fort,
210 Mo. 512 , 109 S.W. R. 737; State v. Etchman,189 Mo. 648 , 88 S.W. R. 643; State ex rel. v. Yancy,123 Mo. 391 , 27 S.W. R. 380; State ex rel. v. Hughes,104 Mo. 459 , 16 S.W. R. 489."
The Supreme Court of Arkansas in the case of Waterman et al. v. Hawkins, 86 S.W. R. 844, having under consideration the validity of an Act of February 25th, 1905, abolishing the Watson Judicial District of Desha County and providing for the transfer of cases pending in the several courts of that district, say:
"Moreover, the statute in question is not a local or special bill, within the meaning of the Constitutional requirement for publication of the intention to apply for passage. State ex rel. v. Yancy,
123 Mo. 391 , 27 S.W. R. 380; State ex rel. Webster v. County Commissioners,29 Md. 516 . Mr Sutherland gives the following definition, 'Special laws are those made for individual cases, and for less than a class requiring laws applicable to its peculiar condition and circumstances. Local laws are special as to place. When prohibited they are severally objectionable for not extending to the whole subject to which provision would be equally applicable, and thus permitting a diversity of laws relating to the same subject'. Suth. on Stat. Const. No. 127. Statutes establishing or abolishing separate courts relate to the administration of justice, *1294 and are not either local or special in their operation. Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation and affects all citizens coming within the jurisdiction of the court. Whether an act of the legislature be a local or a general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates; and, if it affects equally all persons who come within its range, it can be neither special nor local, within the meaning of the Constitution. State ex rel. v. Yancy, supra. In the case last cited the Supreme Court of Missouri held that, under a provision of the constitution identical with the provision of the Constitution of this State now under consideration, neither an act of the legislature establishing a separate court, nor one detaching the clerical duties of that court and creating a separate clerk of the court, were local or special acts within the meaning of the constitution."
It could make no material difference whether the compensation of the clerk of the criminal court of record is fixed in the same legislative Act which establishes the court, or in a separate Act. Neither does it make any difference whether the compensation remains fixed as in the original Act or is increased or decreased by an amendment to the original Act accomplished by a later Act of the legislature. When a statute is amended the amendment is read into the original Act with all the force and effect as if it had been included in the Act in the beginning, and in this case the legislative Act when accomplished by either course is authorized under the provisions of Section 24 and Section 30 of Article V of the Constitution. *1295
So it is that I maintain that Chapter 11363, Acts of Extraordinary Session of the legislature of 1925, was a general Act being operative only within a limited territory, but establishing a part of the general judicial system of the State and was valid. So also, on the same grounds, were the provisions of Chapter 11982, Acts of 1927, valid. The provision of Chapter 13611, Acts of 1929, was valid insofar as it repealed Chapter 11982. But, Section 2 of that Act, which was as follows:
"Section Eleven of the Act entitled: 'An Act to establish a Criminal Court of Record in the County of Palm Beach,' approved December 4th, 1925, and known as Chapter 11363 of the Laws of Florida for the year 1925 be and the same is hereby re-enacted and declared to remain in the same words and figures as before the same was amended by Chapter 11982 of the Laws of Florida for the year 1927,"
is in conflict with Section 16 of Article III of the Constitution, which is as follows:
"Each law enacted in the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section as amended, shall be re-enacted and published at length."
This becomes immaterial here, however, when we find that the provision with reference to the compensation of the Clerk of the Criminal Court of Record of Palm Beach County as contained in Section 11 of Chapter 11363, Acts of Extraordinary session of 1925, is to all intents and purposes *1296 the same as Section 5971 Rev. Gen. Stats., 8238 Comp. Gen. Laws, 1927.
Section 11 of Chapter 11363, supra, having been repealed by Chapter 11982, supra, and Chapter 11982, supra, having been later repealed by Chapter 13611, supra, there is no statute left in force fixing the compensation of the Clerk of the Criminal Court of Record of Palm Beach County, except Section 5971, Rev. Gen. Stats., 8238 Comp. Gen. Laws 1927.
Therefore, it follows that the judgment heretofore rendered would, if recalled, be reaffirmed and such action would, therefore, be a vain and useless thing on the part of the Court.
For the reasons stated, the petition for rehearing and motion to recall the mandate and reform the judgment, I think, should be denied.
ELLIS, J., concurs in the conclusion.