53 Fla. 226 | Fla. | 1907
On November 12th, 1906, at the instance of John Hubbard, the relator, an alternative writ of mandamus was issued from the circuit court of Hillsborough county, directed to the county commissioners of said county, alleging in substance that the relator Hubbard had made his application to the board of county commissioners of Hillsborough county, on the first Tuesday in October',-1906, for a permit to sell liquors, wines and beer in election district No. 28 in said county; that he had complied with the requirements of Chapter 4747, Laws of 1899, and was entitled to a permit, and that on the first Tuesday in November, 1906, the county commissioners refused to grant the permit. The alternative writ recites facts which show compliance with the terms and conditions of said act. The county commissioners demurred to the alternative writ on the ground that Chapter 4747, Laws of 1899, is unconstitutional and void. Upon a hearing the circuit judge sustained the demurrer, holding that Sections two (2) and four (4) of said act undertook to confer judicial powers upon the county commissioners, and was therefore not authorized by the constitution, and Avithout the provisions of those sections the' legislature Avould not have passed the act, and therefore the whole Avas unconstitutional and void. The alternative Avrit Avas
So far as the record shows the objection was not made in the couirt below, but it is contended here, that the county commissioners cannot raise the question of the constitutionality of the statute as a ground for not performing the duty thereby enjoined, in a mandamus proceeding brought to enforce its performance. The case of County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471, is relied on to support this contention. In this case the court decided that the duty imposed in that case was simply to receive and keep in their custody the returns and to canvass the vote, and make due returns of the same to the county commissioners, and that they had no official interest in the result. The doctrine that parties not personally interested cannot raise such a question is sustained by the authorities, but in the cases of county commissioners and judicial, ministerial and executive officers generally, it seems to have been more honored in the breach than the observance. In the very same volume, in the case of County Commissioners of Lake County v. State, 24 Fla. 263, 4 South. Rep. 795, this court permitted the county commissioners to raise the question of the constitutionality of certain sections of “An act to create and establish the County of Lake from portions of Sumter and Orange,” and the court passed on the points thus raised. In the case of Holland v. State ex rel. Duval County, 23 Fla. 123, 1 South. Rep. 521, Holland, the Sheriff of Duval county raised by demurrer to an alternative writ the question of the constitutionality of Chapter 2090 of the Laws of 1877, and the question raised was passed on by the court, although it does not appear that any personal
3Ye do not feel called upon to go further into the discussion of duties which are merely ministerial, and of such as have other elements, and whether a distinction is to be drawn between them in regard to the defenses which may be made to a writ of mandamus by executive, administrative and merely ministerial officers. The
The two sections of the act (Chapter 4747) Avhich the circuit judge held to be unconstitutional are as follows:
“Sec'. 2. The application shall be filed Avilh the board of county commissioners on or before any regular meeting, and said application shall lie over until the next regular meeting of the board of county commissioners there rflcr. When said application is filed the board shall immediately thereafter give public notice in some newspaper published in the English language in the precinct in which such application for sale is made, and if no paper is published in such precinct, then by posting in three public places therein; if there be no such paper then in some other paper published in the county, and if there
‘‘See. 4. If it be made to appear to the board of county
It was held by the circuit judge that these two sections confer judicial powers upon the county commissioners. The powers conferred by these sections are simply to pass upon the personal qualification of the applicant for a permit, to hear evidence and determine whether the applicant is twenty-one year sold, whether he is a sober, law-abiding citizen and of good character. It is not an easy matter to lay down a general rule, applicable to all cases which will clearly delimit the boundaries between judicial functions and powers on the one side, and administrative and ministerial functions and powers on the other. It is perfectly clear that administrative officers such as county commissioners in the discharge of their varied functions, must be permitted to investigate, and form judgments upon facts. In the laying out and construction of roads, in building bridges, in selecting jurors (Reeves v. State, 29 Fla. 527, 10 South. Rep. 901), in constructing public buildings, in the adjustment of claims against a county, in the assessment and levy of taxes, in equalizing taxes, and in other cases, they must necessarily investigate facts and conditions, form judgments and act upon those judgments. Such powers and duties are denominated quasi-judicial and quasi-legislative. Johnson v. Wakulla County, 28 Fla. 720, 9 South. Rep. 690. In
We are of opinion that the questions whether an applicant for a permit is 21 years of age, is- a sober, law-abiding-person and of good character are not strictly speaking-judicial in their nature, but are questions of fact to be determined by the county commissioners according to the ordinary principles of human reason and judgment, and we are, therefore of opinion Sections 2 and 4 of Chapter 4747, Laws of 1899 are not unconstitutional.
The judgment of the circuit court is reversed. ■