*1 871 rehearing Petition for in was filed which the attention of the Court was called to the fact the publication ordinance in full as shown the record occurred after passage the date of of the ordinance. applicable original law in the case is stated
opinion but the conclusion reached was based premises that the record Chapter showed that Section 14 of Florida, Laws of Acts of 1913, complied had been with when in in showing truth and fact such was not made by the record. appears validity
It therefore bonds, that the issue of of which is tested suit, the issues this has not been lawfully authorized and order of the Circuit Court validating the bond issue is therefore reversed.
Reversed. J., J., P. J. con- Whitfield, Buford, and Terrell cur. J., J., C. J.
Brown, Strum, Ellis concur opinion. . Attorney ex rel. J. B. Florida, Johnson,
The State General, Relator, v. L. E. H. L. Goodgame, Sudduth, George H. McKenzie, Will J. Brown and Frank M. Nelson, Respondents.
En Banc.
Opinion May 5, Filed 1926.
.873 *3 Relator; Tonge, & Garter Sapp, Phillips, M. A. Hutchison and Stokes
J. Ira & Respondents. Attorney relation of Upon the General Buford, J. — requiring quo a writ of the re- issued warranto
this court authority they what warrant or to answer spondents enjoy, perform exercise and have, use, the- func- claim to powers of the offices tions, franchise commissioners n ofthe Bay County, Florida. authority answer claim respondents to act as such officers virtue of
municipal elections pursuant held '874 Extraordinary Í1678, Florida, No.
Chapter Laws Session, November, pertinent some 1925. The title and are sections the Act as follows: “AN ACT TO THE MUNICIPAL ABOLISH PRESENT THE PANAMA CITY,
GOVERNMENTS OF CITY OF AND THE TOWN OF MILLVILLE OF ST. CITY AND ANDREWS, BAY, IN THE OF COUNTY ESTABLISH, AND FLORIDA, OF TO OR- STATE A AND CONSTITUTE MUNICIPALITY TO GANIZE BE KNOWN AND THE CITY OF DESIGNATED AS AND CITY, PANAMA BAY COUNTY STATE OF FLORIDA; DEFINE TERRITORIAL TO ITS BOUN- AND DARIES TO PROVIDE FOR ITS JURISDIC- AND TON, POWERS PRIVILEGES.
“BE OF IT ENACTED BY THE LEGISLATURE THE OF STATE FLORIDA: Municipal present Govern- (A) That 1.
“Section Bay County, city of Panama State ment *4 hereby abolished. Florida, same is be and the present Municipal Government of the “(B) That the Bay County, Florida, Millville, State of be and Town of hereby is abolished. the same the Municipal of present Government “(C) That the County, Florida, be and Andrews, Bay State of City of St. hereby abolished. the same Municipality to be known That 2. '“'Section established, hereby City is City of as designated County Bay, of of in the State and constituted organized designated. being boundaries territorial Florida, title, rights, ownership prop- of (a) That the 4. “Section dues, claims, judgment, decrees, taxes, uncollected erty, by municipality of held and owned action ehoses-’in' County Bay, City, Florida, of State of City of-Panama municipal corporation, in the pass shall to and be vested hereby munici- created and established to succeed such pality. title, un-
(b) right, ownership property, That the of taxes, dues, claims, judgments, ehoses decrees, collected by municipality in action held and owned of the Town Millville, County Florida, pass of shall Bay, State hereby municipal corporation be vested in municipality. created and established to succeed such (c) title, rights, ownership property, That the un- taxes, dues, claims, decrees, collected ehoses judgments, City action held and owned County Andrews, Bay, shall Florida, St. State hereby pass municipal corporation and be in the vested municipality. such created and established to succeed City 5. of the -former “Section That the ordinances Bay Florida, shall be City, County, State of City of Panama become ordinances of the altered, until amend- hereby organized and City established City repealed Commission ed, modified hereby City of Panama created and established. said officers of said 6. The elective shall be four Section and a at large, Commissioner shall also Commissioners who whpm Mayor, all of hold the office shall be elected for years. large the term of two The Commissioner at majority qualified by a vote voters of the be elected voting. One Commissioner shall elected as whole of each Ward. voters qualified * * * The enumeration of particular 22. “Section charter shall not be held or powers of this deemed to be but, addition, powers exclusive, to the enumerated here- *5 thereby, in, appropriate or thereof, amended the exercise City powers have and exercise all other which com- Florida, it will laws of and constitution under the enumerate. specifically petent for this Charter ‘‘ or abo- contained, in this Act Nothing Section 160. or of Millville Town municipality of the lition of the City of City Andrews or of St. municipality of the municipalities as of said City or the consolidation Panama any fran- anywise affect City City, shall of Panama any or person, granted or grant heretofore made chise or mainte- operation and corporation construction, power plant telephone systems, light nance of electric and system or gas, lighting, heating power plant or and/or system municipalities respectively supplying said and/or service, telephone and the thereof elec- inhabitants with heat, light, power for tricity gas, or electric current and/or uses, any or purposes and mechanical contract between either the holder such franchise and said City, any Millville or St. Andrews or contract any any between the private holder of such franchise and person corporation, or charged or or per- the rate rates or charged gas, electricity mitted to be or electric current' heat, power, light or purpose. any 160a. all grants “Section That franchises and privileges granted by kind heretofore the town City Millville, City Andrews, or Panama of St. by any municipality by any which has been succeeded of them by any now outstanding person, held firm or hereby approved, ratified and confirmed City City hereby Panama organized, and all the rights of the holders and owners of franchises, said grants privileges obligations also of the said hold- ers and owners shall hereafter hold and continue as to the territory embraced the municipality which granted the franchise, grant said or privilege to use the same effect as if the said granted the same had not been succeeded hereby organ-
87Z hereby organized shall City City Panama ized, the of and of owners said carry holders and to the perform and out obligation every duty and franchises, grants privileges and bound, the same granted that the to do. sidewalks',
“Section 195. All assessments liens in- paving improvements, or 'other and all certificates of debtedness, improvement certificates, of and all collections by corporation same heretofore made and obtained City bonds, City, contracts, of and. and all obligations of City hereby legal- of Panama are force, valid and of full virtue and effect ized declared by in binding equity in law or and shall be collected City of City and benefit used constituting City Pan- City formerly of portion said of City. ama “ (a) sidewalks, All or- paving assessments and liens-for indebtedness,, improvements, other and all certificates of same; improvement certificates and all collections of the by heretofore made and obtained of corporation the- contracts, of Millville obligations, Town and all bonds and declared, legalized hereby Millville, are Town binding im force, and effect and virtue of full valid and City of Pan- be collected and shall equity, or in law portion benefit of that said. City and used ama constituting the Town Millville-. City formerly sidewalks, paving, and liens for or- “(b) All assessments indebtedness,, all certificates improvements, and all certificates collections of the- improvement same- made and 'obtained heretofore of the- contracts, City Andrews and obliga- bonds and St. hereby Andrews are legalized St. tions and. virtue force, and of full valid effect and declared bind- equity, and shall be collected ing law *7 portion benefit of that City used the of and for An- formerly City of St. constituting the City of said ’’ drews. of Act will be hereafter pertinent sections the Other quoted and construed. following:
The of Florida contains the Constitution any law attainder, post “No bill of ex facto law nor obligation contracts, passed.” of be impairing the shall ever 17, Rights, of Declaration Const. Sec. ‘' legislature power The shall have to establish a uniform system county municipal government, and shall applicable, except special in where local cases or laws legislature are provided the that be inconsistent Ill, therewith.” Art. 24, See. Const. ‘' the several counties authorize legislature The shall to im- in assess and or towns the State incorporated cities county municipal for no purposes, pose taxes for property upon shall be taxed purpose, and principles State taxation. But the cities established incorporated shall make their towns own assessments municipal purposes upon, within their IX, Art. 5, limits.” Sec. Const. challenging an presents the answer issue
A demurrer to 11678, Florida, Chapter Laws validity of does not contain suffi- ground thé enactment that essential required pro- the Constitution for the provisions as cient that are creditors abol- tection Act. ished of the three municipali- each abolished appears
It and other indebtedness still outstand- large bonded has ties ing. Provision referred to is Constitutional as follows: power shall have to legislature
“The establish to provide for their municipalities, government, abolish jurisdiction and powers, prescribe their and to alter
879 municipality shall any When amend tbe same at time. made for the be abolished YIII, Constitution Sec. Art. its creditors.” See Florida.
By Chapter legislature abol- enactment ished of Millville and Town Bay County, Florida, cre- St. Andrews ated and established lieu thereof and as successor each *8 municipal corporations corporation three one the under City City, name of of Panama corporate the the the limits every part which include of each of the abolished mu- nicipalities territory. and also additional some Section 98 provides of the Act as follows: City City levy “The shall power have to taxes year ordinary each purposes the municipality. of the In addition foregoing levy, to the municipal said corpora- may levy annually special collect a perma- tion and tax for adornment, paving improvements nent and the and im- provement public grounds City of the of'the streets and municipality beyond of the property and the limits may levy City. corporation also and collect a Said annually upon not to exceed three mills real special tax City, in the said to be property assessed and personal and municipal taxes are assessed and col- as collected giving publicity to purpose for the advan- lected productions City, and tages, facilities surrounding for the entertainment of its visi- section levy also annually shall and collect Said tors. such sums as aforesaid, may be its taxable upon upon the indebtedness of necessary interest pay to properties its public works, maintenance for the' sinking' payment fund of such in- to create may incurred; and to pay be the bonds of as debtedness may any bonds which already be issued issued in City any law; judgment pay against with accordance 880 may levied and such sum as commanded to be ’’
any City. legally against mandamus issued provides Section of the Act as follows: general applicable municipal “All laws the State corporation, enacted, or which hereafter be now which are provisions not of this charter conflict with the nr with ordinances and resolutions hereafter enacted City Commission, City; applicable pro- this vided, however, nothing contained in this charter shall be construed as limiting power Commission to enact ordinance or resolution in conflict with the Constitution of the State or with the United States.”
Section Revised General of Florida, pro- Statutes vides as follows:
“TAX FOR hereby BONDS. It is duty made the City Council to assess'and collect such from taxes the cit- izens and the property city, within the as shall be necessary payment upon, interest as well as the payment final of said bonds: Provided, however, That all property shall *9 be taxed principle by established .'State Taxation.”
In general one of the of applicable laws the State to mu- nicipal corporations is section 1832, Revised General Stat- utes of Florida, provides as follows:
(cid:127)“POWERS OF CORPORATION. provisions of previous having section been complied persons with the named, therein and their successors, shall thereupon con- body and corporate stitute become a power with full and authority to take and hold property, real, personal and mixed, and to control dispose and of the same for the ben- and efit best interest of aforesaid, to sue sued, plead and be impleaded, and be and to do all such things other acts and as are incident to corporate bodies.” by It is contended the relator that the former City City, City of St. Bay Andrews and the Town of ; large indebtedness each bonded Millville as abolished had a this fact is admitted. provides 196 of the Act as
Section follows: City the territorial “That boundaries Act, passage as constituted on the of this date property responsible for, all therein included shall be held contracts, judgments, and be bound for all and debts now against territory held said and no property other or by included Act, herein and covered this shall respon- be contract, judgments for debts, sible such any nor shall tax ever upon any be levied territory such other prop- or erty payment for the contracts, of such judgments, and debts.
(a) That territorial boundaries of the Town Mill- ville as constituted on passage Act, date this property all therein included shall responsible held for, and be for contracts, judgments bound all and debts now against City, held said territory and no other property or included Act, herein and responsible covered this shall be contract, for such judgments, and against debts now held City, territory said and no or property included here- in and Act, responsible covered this shall be for sucb contract, judgments, debts, nor shall tax ever be upon any territory levied of such other property payment contracts, judgments of such and debts.
(b) That the territorial boundaries of the Town St. Andrews on as constituted the date of the passage of this Act, all included therein shall respon- be held contracts, and be bound judgments sible against now held debts said and no other territory or property included herein covered Act, this re- *10 sponsible contracts, for such judgments, and nor debts shall any upon any tax ever be levied of such other territory or property payment for the of contracts, such judgments ’’ debts. follows: provides Act as 197 of the
Section property, all taking effect upon ‘“That this Charter on every and character kind in action of rights and dioses City of Millville, belonging to either the town said date existing City of heretofore St. Andrews or rights property, and choses and be the become hereby organized and City of Panama action created. ’ ’ (3)
Thus, shown that three have a case it is we one cor- municipal have been abolished and powers in lieu thereof. The conferred poration established legislature Florida are: corpora- To to all the succeed the abolished sued; tions. Section 197 of the Act. To sue Sec- together 1832, tion 185 of Act with section Revised Gen- eral of Florida. Statutes taxes, collect section Revised Gen-
To assess and Florida, -98 of the together with Section eral Statutes Act. corporations property within the abolished
To bond the respective obligations abol- payment of the of such corporation: 196 of Act. Section ished necessary machinery provides for act also collecting municipal pur- of taxes for all assessment poses. province legislature
It was within under 8, Article 8 of Section Constitution to municipal or all of the abolished either corporations abolish legislature doing so the was bound provide when but corporation. of the creditors of such This by providing have been done might the continuation of collection the assessment taxes and the disbursement by proper officials of funds named for that purpose, with- corporate continuation out the existence; leg- just have done might islature as it did in case, this is,
(cid:127)883 provided for a creation of the creditors a corporation creation of had the new legal of establishing rights effect a successor all the to corporation. all the “If liabilities the abolished a mu- nicipal corporation goes existence'by being out of annexed merged or corporation, to another if legislative no respecting property is made and liabilities of corporation corporation exist, which ceases annexed, ivJiicli it is it merged, or which is is entitled property all its and is answerable all its liabilities. municipal public a corporation Where legislated out territory existence and its annexed to corporations, latter, legislature tmless the otherwise provided, are property, entitled to its severally liable for propor- a tionate share of its then' subsisting legal debts, and vested power with the to raise revenue pay wherewith to them levying property taxes transferred per- residing (cid:127)sons therein. The creditors of extinguished corporation were held in the case cited in the note to a have remedy in equity against corporations succeeding to its property and powers, to have the ascertained, amount ap- ’’ portioned, and adjudged paid. to be
Dillon on Municipal Corporations, 5 Ed. Section cited., and numerous cases there appears to the writer It the law is well settled that legislature given of a “Where State has a local com- living designated munity, within boundaries, a municipal by subsequent organization, Act or' series Acts re- charter peals corporation its and dissolves the and incor- substantially porates people the same as municipal body general under a new name for the same purpose, and the great mass of the property taxable of the old corporation is included within the limits of new, and the corporation of the old public used for purposes is trans- without consideration ferred to the new *12 884 notwithstanding great a latter, public uses, the
the same limits, in law of is successor corporate of its the reduction Watson, Mobile v. for its debts.” and liable former the 248, Thompson Folsom, 200 289, U. S. 116 Graham v. U. S. Corporations, 5 176, Municipal Mo. Dillon on Abbott, 61 v. powers “Where 358; particular 357 Also Ed. Section general grant there is expressly conferred, and also are by included all general grant intendment power, such fairly grant that are within the terms powers municipality, the purposes are essential to the not particular powers expressly conflict with the conferred.” , — Harper Rep. 853, Fla. —104 Liveris v. South. see also 858, Tampa Works, ex rel. Ellis v. Water 56 Fla. 47 State Rep. 358. South. ‘‘ legislature It in passing must assumed a law the that valid rather enactment, intended a than one in conflict with Constitution; should, possible, the if be so cons Statutes conflicting trued as to Constitutional rather than as Harper 255, organic Galloway, law.” v. 58 Fla. with 51 513, 226; Christopher Mungen, v. 61 Fla. 55 Rep. South. Phillips, 273; 240, 70 Rep. v. 70 Fla. South. State South. in positive a statute is conflict with Rep. 367. “Unless designated or identified of the Constitution some . ’ Catts, not be held unconstitutional Lainhart v. it should 735, Rep. Fla. 75 47. 73 South. municipal corporation, appears clear
It that City, by chapter 11678, of Panama Laws Flor- created Extraordinary ida, Legislature, Acts Session of No- vember, the municipal corporations, was successor to City of St. Andrews and Millville; successor that as such it became owner of Town formerly owned public property the abolished all mu- charged duty became nicipalities that it with the obligations outstanding discharging of such abolished municipalities levy authorized law to and collect formerly territory con- within taxes municipalities purpose stituting each of said paying outstanding obligations of such so be forced man- failing to do its officials levy apply damus to and collect such taxes and the same respective discharging obligations. of such That these clearly expressed conditions Statutes, are so or so forcefully implied by positive *13 mandate the Statutes that the is conclusion inevitable.
Certainly purpose it was not the of the framers require Constitution legislature make more defi- nite or adequate provision more protection creditors of an abolished than that which had prior existed the act abolition.
This being legislature true the provision has made for protection of creditors of the municipalities abolished and has not provisions violated of the Constitution. The writ should quashed. therefore be quashed.
The writ is Brown, C. J., J., and Terrell, J. concur. Ellis Whitfield J., J. Strum, dissent. question controlling J.—The to be deter-
Whitfield, Chapter 11678, mined is Florida, whether in Laws abol- ishing municipalities three and establishing municipal- one complied ity three, has in lieu of with the mandate of the any municipality that constitution “when be abol- ished, provision protection shall be made of its cred- organic provision itors.” impairing “no law obligation passed,” of contracts shall ever be prohibi- is a upon legislative action tion and relates to the obligation organic contracts; while the command that any “when shall be made abolished, provision be municipality shall affirmative and creditors,” requires its protection provision for legislature making in by the positive action municipality a is abolished. creditors when protection required provision for necessary that the not It specific creditors, be contained of such posi- there must language, but terms, words express duly made, that fact and tive and affirmative it of a when the creditors protects in law ’’ ‘‘ a statute cannot be omitted from Provisions abolished. Poston, 548, 45 v. 266 U. S. by the courts. Ebert .supplied Rep. 188. Ct. Sup. Act, Florida, pro- Charter 11678, Laws
Chapter “abolished” are new that three vides ’’ ‘‘ territory established, covering the municipality is territory. The Charter Act additional three with former liens, certificates of indebted- assessments validates and collections of the same improvement certificates ness, severally by obtained” three made “heretofore *14 contracts, municipalities, and also all bonds prior .validates municipalities then sever- obligations of the abolished and by to the three to be collected the ally due the amount City and for newly City used the established city formerly portion of said consti- of that benefit municipalities ; n severally former pro- the three and tuted property included in former municipali- all such vides that respectively, responsible be held for, “shall be ties and contracts, judgments, for bound debts now held respectively, “and against” territorj'- them no other or by property included herein and covered Act, this shall be contract, judgments for responsible such debts, nor upon any tax ever levied such territory payment property the contracts, such judgments and. debts.” provisions negative tend to purpose
These a to violate municipali- obligation of the contracts the abolished the they an affirmative ties; are insufficient to constitute but organic provisions command make compliance with the to protection of the of the abolished municn creditors palities. to due abolished that the amounts city municipalities severally shall be collected the new city portion and “used for of” the the new benefit parts severally, were of the former entities is not an adequate provision for of creditors as re- quired provide the constitution. It does not payment of debts. 4 of the Charter municipal-
Section Act vests in the new ity “title, ownership rights, property, uncollected taxes, dues, claims, judgments, decrees, choses in action held and municipalities, owned three abolished but .the” city required expressly pay new is not to the debts either the former municipalities. pro- And Section 197 rights vides that all property, and choses in action of everj^ kind and belonging character to either of the three abolished “shall become and be property, rights,- and choses action of ’’ hereby organized and created. gives
The Charter Act city power levy new annually upon collect taxes the real personal city, provides in the said levy that it shall and collect necessary “such sums as pay interest city indebtedness of the and for the maintenance of its properties public works, to create sinking fund for payment of such majr indebtedness as be incurred; and pay city bonds already issued or any .bonds *15 may which be issued accordance law; with to pay any judgment against city and such sum may as com- manded to by any be levied mandamus legally issued against city.” (cid:127); provision This relating to the taxing power should not
888 particularly purpose, beyond plain its extend construed to prospec- to relate to appear controlling features its when city to “bonds provision If as obligations. tive to provision, be construed issued,” already existing also to other bonds the then to have reference pro- municipalities, such three abolished indebtedness making prior provisions with the must be construed visions only that was obligations indebtedness severally. levy, municipalities Thus the tax prior in the thereby entirely equivocation from not free provisions are uncertainty and doubt. producing appear specifically Act does authorize Charter not municipality sued, though to sue and be there are new provision against it; references to suits and the the Re- 1920, on subject vised General Statutes of seems to authority conferred, confine the therein incorporated general under 1832, law. See Sec. Rev. Gen. Stats. 1920. general be the
Whatever rules law relative to the liability municipality implied for the debts of its abo- (1 (5th predecessor Corp. ed.) 336), lished Dillon on Munic. expressly constitution Florida the commands that “when any municipality abolished, provision shall be shall be made protection creditors;” of its organic and this man- obviously requires affirmative, positive date unequiv- provisions duly ocal to be enacted for every creditors each and municipality when it is abol- ished. The of the constitution here considered was not in existence and was not material to the decision in Broughton v. Pensacola, 93 U. 266, case, S. like Mobile v. Watson, 289, 116 Sup. U. S. St. Rep. entirely analogous not to this one. ambiguity
There is as the taxing power of the new pay “to city bonds already issued’'’ or airy pay judgment against city,” “to and it is not *16 duly duty of the new apparently made the former debts of the levy pay and to and collect taxes three; municipality specifically authorized nor is the new former of the several to be sued to enforce the indebtedness territory municipalities paid be from the municipal former was covered those entities sever- ally, though compel there is reference to a mandamus to levy. tax 1920, supply Revised General Statutes of do not
provisions required by protection the constitution for the of the creditors of spe- that are abolished legislative cial provisions enactments. If of Sec- 1920, tions 1922 or other sections of the Revised General Statutes would seem applicable, to be provisions such are inconsistent with special Act, Chapter 11678, Charter Laws of Florida, and under Section III Article Constitution, special law “shall applicable,” be special comply law does not organic with the command that any municipality when shall abolished, provision made for the of its creditors. Strum, J., concurs.
Ex Parte Brandamour,
Division B.
Opinion May 7, Filed 1926.