Thursby v. StewartThursby v. Stewart
“An Act requiring the Board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00) which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A. D. 1930, and to end on the 30th day of September, A. D. 1931.”
the same being known and referred to herein as Senate Bill No. 910; that the same Legislature also passed a bill entitled,
“An Act creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, maintain and carry on annually a fair or exposition in said county, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said Act not to exceed One Mill on the dollar, and giving the said Board
of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said act and all funds derived from said tax or any other sources.”
the same being known and referred to herein as Senate Bill No. 911 and that both bills were approved by the Governor on June 11, 1931; that pursuant to the terms of Senate Bill No. 910, the said Board of County Commissioners, had been requested by said Board of Trustees of Volusia County Fair, to pay over to them the sum of $6,000.00 which has been appropriated to Volusia County Fair Association, and that the defendants, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, were designated in Senate Bill No. 911 as such Board of Trustees; that although the complainant had objected personally to a number of said Board of County Commissioners against the payment of said sum, a meeting of said Commissioners had been called to be held on July 13, 1931, for the purpose of taking action and making payment of such money to the Volusia County Fair Association, and to include in their budget for the year 1931, such sum of money as may be required or demanded by the Board of Trustees of Volusia County Fair, and it was alleged upon information and belief that it was the intention of said Board of Commissioners to misappropriate the further sum of $6,000.00 by paying it over to the Board of Trustees of Volusia County Fair in accordance with the provisions of said Acts of the Legislature; that the appropriation to the Volusia County Fair Association was without authority of law, in that it was in violation of
“The Legislature shall not authorize any County x x x x x x x to obtain or appropriate money for or to loan its credit to any company, corporation, association, institution or individual,”
and that the Legislature is without power to turn over
Complainant alleged further, upon the information and belief, that said bills, 910 and 911, copies of which were attached to the bill of complaint, are each unconstitutional because it is beyond the legislative power to impose compulsory taxation upon the people of Volusia County; that said bill 911, is unconstitutional and void because it is not authoritative in nature, but is mandatory as to the requirement that the County Commissioners pay said sum of money arbitrarily and without defining any purpose for which it is to be used, that it is not within the power of the Legislature to directly levy or compel the levying by a county of an ad valorem tax for an exclusive local purpose, or to compel the appropriation of money by a county in which the State has no concern, that it mandatorily requires the appropriation of money to be expended by non-commissioned officers, designated as such, in violation of the requirements of the Constitution, and that it violates
The constitutionality of Senate Bill No. 911 is further attacked upon the grounds that, (a) it mandatorily requires the said Board of Trustees to acquire, purchase and take over in the name of the county, all property of Volusia County Fair Association, Inc., (at a sum not to exceed $83,000.00, and pledging the name and credit of Volusia County for the payment thereof), and to promote, maintain and carry on annually, a fair or exposition
“No contract shall be let for the work on any road or street, construction or building of any bridge, erecting or building of any house, and that no goods, supplies or materials for county purposes or use be purchased when the amount to be paid therefor by the county shall exceed $300.00 unless notice thereof be advertised once a week for at least two weeks in some newspaper of general circulation of the County, calling for bids upon the work to be done, and for goods, supplies or materials to be purchased by the county and requiring in each case the bid of the lowest responsible bidder shall be accepted unless all bids are refused because same are too high.”
It is further alleged upon information and belief, that the Board of County Commissioners are about to levy
The complainant prayed for a temporary injunction, (1) restraining the members of the Board of Trustees of Volusia County Fair from paying to themselves or to one another, any salary or compensation for any services rendered, or to be rendered, in or about the performance of the duties prescribed by the Act creating the said Board of Trustees of Volusia County Fair, (2) restraining the said defendants from submitting “to the Board of County Commissioners of Volusia County, Florida, on the 1st Monday in July or at any time thereafter, any estimate of any pretended amount of money necessary to be raised for the purpose of carrying out the provisions of said act, to-wit, Senate Bill No. 911, as aforesaid, and that said Ben D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar and Davis Forster, and Saml. D. Jordan, Clerk of said Board, be enjoined from levying annually or at any time ad valorem tax for the purpose of carrying out the provisions of said Act,” (3) restraining the Volusia County Fair Association and the individuals constituting the members of said Board of Trustees “from issuing any note under color of said Senate Bill No. 911 for the sum of $83,000.00 or any other sum of money in the name of the County of Volusia and State of Florida, for the purchase of any property or other assets of Volusia County Fair Association, Inc., a corporation organized and existing under and by virtue of the laws of the State of Florida, or in any wise pledging or obligating the County of Volusia and State of Florida to any extent whatsoever,” and that
Notice of an application for a temporary injunction was filed in the cause, and thereupon the defendants, Volusia County Fair Association, Inc., and Trustees of Volusia County Fair, interposed certain objections to the granting of same, which objections, were under oath, and based, in substance upon the grounds that (1) the bill is multifarious, (2) that the Volusia County Fair Association, to whom the $6,000.00 appropriation was made, was chartered under the General Laws of Florida authorizing the formation of corporations not for profit, for the purpose of operating fairs, etc., and which law authorized the Board of County Commissioners to make contributions to such association, to assist in carrying out its purpose, and to expend in their discretion, such sums as they deem best in aiding the development of the agricultural, horticultural and live stock resources of the county, giving publicity to the same by aiding the exhibiting of such resources at or in connection with such fairs, including the offering and paying of premiums, (3) that Senate Bill No. 910 is in pari materia with Senate Bill No. 911, and that said Senate Bill No. 911 specifically declares that the purchase and taking over of the property of Volusia County Fair Association, and the promoting, maintaining and carrying on annually of a fair, the levying of the tax and paying the same over to the Board of Trustees of Volusia County Fair, are all for a valid County purpose, (4) that it is shown to be the duty of the County Commissioners to pay over the said sum of $6,000.00 and that no showing is made that any of the defendants are about to issue the said promissory notes, (5) that the appropriation of money to the Volusia County Fair Association is not for the benefit of any such company, but for the benefit of the County, and its citizens, (6) that it is not true that the tax sought to be enjoined or the appropria-
The application for a temporary injunction was denied by Judge Daniel A. Simmons, sitting in Volusia County. Complainant then amended his bill of complaint by alleging further, upon information and belief, in substance, that the property referred to in Senate Bill No. 911, was acquired by the Volusia County Fair Association, Inc., by deed from Sidney A. Wood, as Executor and Trustee under the last will and testament of Asa D. McBride, deceased, for a recited consideration of Ten Dollars and other good and valuable consideration, but as a matter of fact, no consideration was paid therefor; that the said land was donated to the Volusia County Fair Association, Inc., and was in violation of the trust reposed in the said Executor, and Trustee, inasmuch as the said will only authorized him to sell or convey real estate of the estate for the purpose of converting the same into cash for re-investment and uses as directed under the terms of the will, and in consequence thereof, the Volusia County Fair Association, Inc., did not have title to the property, and that the same with the improvements thereon, constituted practically all of the property and assets of the said Volusia County Fair Association, Inc., and that unless restrained and enjoined by order of the Court, the said property will be acquired by the said Board of Trustees, and obligations will be issued in the name of the County of Volusia to the great and irreparable injury of said County and the taxpayers therein. The said amendment alleged further, that upon the day the bill of complaint was filed, the said
The judge of the Seventh Circuit being absent from the Circuit, the bill of complaint and the amendment thereto, without notice to the defendants, was presented to Judge Paul C. Albritton of the Twenty-Seventh Circuit, who thereupon granted a temporary restraining order as prayed for in the bill. In support of the application, Tom Stewart, an attorney for the Complainant, made an affidavit before Judge Albritton, which averred,
“That the said defendant Board of County Commissioners have deferred making payment of the money mentioned in the bill of complaint to the Board of Trustees, of Volusia County Fair, because of an insufficiency of money in the agricultural fund of Volusia County, which fund has now become adequate to pay the sum of $6,000.00 and that urgent demands are being made on said Board of County Commissioners to make said payment, and that his Excellency, the Governor of Florida, has signified to said Board his desire that it make such payment promptly or show cause of not so doing; that said Board of County Commissioners has now under consideration the preparation of its annual budget, and is in almost continuous session from day to day in the preparation of same; that affiant believes that to give notice of this application for injunction would cause immediate payment of said sum and accelerate the injury sought to be enjoined; and believes that the injury apprehended will be done if an
immediate remedy is not afforded the complainant, and affiant fears that the Board of Trustees of the Volusia County Fair may take title to said Fair property and issue obligations in the name of Volusia County in payment thereof unless immediate relief is granted.”
From the said order granting a temporary injunction the defendants, Ben. D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar, and Davis Forster, individually and as constituting the Board of County Commissioners of Volusia County, Florida, Volusia County, Saml. D. Jordan, Clerk of the Circuit Court, in and for Volusia County, Florida, and ex-officio Clerk of the said Board of County Commissioners for themselves and for the other defendants (naming them) on the 18th day of August, 1931, filed their notice and entry of appeal.
On the said 18th day of August, the Volusia County Fair Association, Inc., and the Board of Trustees of Volusia County Fair, said Board consisting of W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, jointly and severally moved the Court to dissolve the temporary injunction. Objection to the hearing was interposed by the complainant, but on 21st day of August, A. D. a hearing was held and an order was made by Judge Simmons, acting in the place and in stead of the Judge of the 7th Judicial Circuit dissolving the said injunction. From this order and the order of Judge Simmons denying the first application for a temporary injunction, the complainant appealed. The two appeals have been consolidated here.
It is settled here that the granting, continuance and modification of temporary restraining orders are largely discretionary, and the rights of the general public, if affected thereby, should be considered. Suwanee & S. P. R. Co., vs. West Coast Ry. Co., 50 Fla. 609, 612, 39 So. 538; McMullen vs. Pinellas County, 90 Fla. 398, 106 So. 73.
Equity Rule 46 provides that in all cases of applications
“To justify the granting of an injunction exparte, and without notice, the allegations of the sworn bill or accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of from which the court can determine for itself whether the giving of notice will, or is likely to so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result.” Godwin vs. Phifer, 51 Fla. 441, 41 So. 597, and other cases cited therein.
The allegations in a bill for an injunction must be clear, direct and positive, and must be verified by an affidavit, which also, must be direct and positive; and where any of the material allegations in the bill are stated upon information, there should be annexed to the bill, the additional affidavit of the person from whom the information is derived verifying the truth of the information thus given. If the direct and positive allegations of fact in the sworn bill as amended, are sufficient to constitute a ground for an injunction, and the refusal of the court to grant a temporary injunction upon the first application is not a bar to the making of the order upon the second application, the lower court should not be held in error for granting the order from which the first appeal was taken. We can-
As a general rule, a second application will be denied merely on a showing that the first one was denied, unless complainant presents new and additional matter discovered since the former hearing but “the refusal of an application for a preliminary injunction does not bar complainant from making a second application, the decision being an act of discretion; and the Court may, in subsequent application, reach a different conclusion on the same or more convincing evidence. The court is not bound to adhere to its former ruling, nor is it bound, in case the former application was in another court, although it will generally do so by way of comity.” 32 C. J. 366; Louisville & N. R. Co. vs. Ky. R. R. Commission, 214 Fed. 465.
While a second application for an injunction, when based upon the same evidence or upon evidence which should have been presented upon the first application will generally be denied, it being a matter in which judicial discretion should be exercised, a court will not be held in error in granting a second application if a clear case is presented.
In McMullen vs. Pinellas County, supra, we held that “to the granting of every temporary injunction, two essential conditions must prevail. The bill must allege facts which appear sufficient to constitute a cause of action or ground for injunction, and, on the full showing made from both sides it must appear in the light of the circumstances, that the injunction is necessary to protect the legal rights of the plaintiff pending the litigation.”
On an application for a temporary injunction, the chancellor may consider the merits of the bill. City of Apalachicola vs. Apalachicola Land Co., 9 Fla. 340, 70 A. D. 284; McKinney vs. County Commissioners Bradford Coun-ty, 26 Fla. 267, 4 So. 855, McMullen vs. Pinellas County, supra.
That a citizen and taxpayer may enjoin an unauthorized expenditure of public money, is well established. Rickman vs. Whitehurst, 73 Fla. 152, 74 So. 205, Whitner vs. Woodruff, 68 Fla. 465, 67 So. 110; Anderson vs. Fuller, 51 Fla. 380, 41 So. 684, 6 L. R. A. (NS) 1026, 120 A. S. R. 170, Lassiter & Co. vs. Taylor, 99 Fla. 819, 128 So. 14.
Likewise, equity has jurisdiction to enjoin the assessment and collection of an illegal tax levied upon real estate, which, if assessed and collected, will cast a cloud over the title of such real estate. Pickett vs. Russell, 42 Fla. 116, 634, 28 So. 764.
We are, therefore, confronted with the inquiry; Are the facts alleged, either in the original bill, or the bill as amended sufficient on the showing made by both sides to justify the chancellor in the exercise of his discretion, in granting the second application for an injunction?
In all cases where there is no constitutional provision making an expense chargeable to the county, it must be for a county purpose in order to justify the legislature in authorizing a county to resort to taxation to defray it (Opinion of Justices, 13 Fla. 687; Board of County Commissioners Escambia County vs. Board of Pilot Commissioners, 52 Fla. 197, 42 So. 697). There is no general rule for determining what is a county purpose (Commissioners of Duval County vs. Jacksonville, 36 Fla. 196, 18 So. 339). In Jordan vs. Duval County, 68 Fla. 48, 66 So. 298, we said:
“While the Constitution provides that ‘the Legislature shall authorize the several counties * * * * * * * in the state to assess and impose taxes for county * * * * * purposes, and for no other purposes,’ the term ‘county purposes’ is not defined or amplified in the organic law. This, being so, the Legislative power, in exercising its appropriate law making functions, may determine what is a ‘County purpose‘, and the courts are not
authorized to render such determination ineffectual, unless some provision of the Constitution is violated, or unless the particular enactment can have no legal or practical relation whatever to any ‘county purpose.’ Where the courts may as in this case inquire into the existence of legislative power to enact a statute, the absence of power must clearly appear before the statute will be declared to be ineffectual for the purpose designed.”
See also, Jacksonville vs. Bowden, 67 Fla. 181, 64 So. 769; Anderson vs. Ocala, 67 Fla. 204, 64 So. 775.
“A statute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it, can be pointed out.” Neisel vs. Moran, 80 Fla. 98, 85 So. 346.
Complainant insists that both Senate Bill No. 910 and Senate Bill No. 911 violate
“The effect of these fairs has no doubt been to stimulate an interest in improved agricultural methods. It may also be true that the public benefits to be derived from such fairs are sufficient to authorize the Legislature to place the expense thereof upon the public rather than upon a few individuals who have the public spirit to promote and organize such enterprises. As to this feature of the act in question, though somewhat paternalistic in its nature, we are not prepared to say that the Legislature has exceeded its powers or come in conflict with any constitutional restriction. This Court has held that the Legislature, in exercising its appropriate law making functions, may determine what is a county purpose within the meaning of
Section 5, Art. 9, of the Constitution , and the courts are not authorized to render such legislation ineffectual, unless some other provision of the Constitution is violated, or unless the particular enactment can have no practical or legal relation * * * * * * * * * * whatever to any county purpose.If the state has the power to establish and operate a state agricultural department, or provide for a commissioner of agriculture, it would appear that it might also, by proper legislation, authorize a county, a political subdivision and agency of the state, to promote the local agricultural interests of the county by acquiring the
property and constructing the buildings necessary to the conduct of free public county fairs in the particular county.” (Italics supplied).
Senate Bill No. 910 does not direct for what purpose the said sum of $6,000.00 shall be used, but merely requires the County Commissioners to pay it over to the Board of Trustees of the Volusia County Fair.
Senate Bill No. 911 declares that the purchasing and taking over of the property of Volusia County Fair Association, Inc., the promoting, maintaining and carrying on annually of a Fair or Exposition in the county, and the levying of a tax by the County Commissioners in order to carry out the provisions of the act, “are all for a valid County purpose.”
While the constitution provides that the powers and duties of county commissioners are prescribed by law (
The power of the Legislature to pass laws creating County Officers, other than those provided for in the constitution, is “absolute unless restrained by some constitutional
“All persons by authority of law intrusted with the receipt of public money, or through whose hands such money may pass to the treasury, are ‘public officers‘, whether the service be general or special, transient or permanent.” x x x x x x x x x x.
”
Section 27, article 3 of the State Constitution means that when not otherwise provided in the Constitution the executive and administrative governmental functions of the state and counties shall be performed by officers who shall be elected by the people or appointed by the Governor, and that the duties and compensation of such officers shall be fixed by law.Section 7, article 8 , requires that such county officers shall be commissioned by the Governor, and that before being commissioned they shall file with the secretary of state a bond to be approved by the county commissioners and by the comptroller,Section 14, article 4 , provides that all commissions shall be in the name and under the authority of the state of Florida, sealed with the great seal of the state, signed by the Governor and countersigned by the secretary of state.Section 2, article 16 , requires every officer to take the prescribed oath.Section 7, article 16 , provides that the Legislature shall not create any office, the term of which shall be longer than four years.” Dade County vs. State, 95 Fla. 465, 116 So. 72, 76.
We are impelled to the conclusion that the lower court committed no error in granting the order temporarily restraining the Board of Trustees of Volusia County Fair from issuing any note under color of Senate Bill No. 911, for the sum of $83,000.00, or any other sum of money in the name of Volusia County, for the purchase of any property or other assets of Volusia County Fair Association, Inc., or otherwise pledging or obligating the said County to any extent whatever.
Since no one other than the Board of Trustees of Volusia County Fair is authorized to perform the duties attempted to be conferred by the said Senate Bill No. 911 upon the said Board of Trustees, and the expressed purpose of the
We will now take up the appeal of the complainant from the order denying a preliminary injunction upon the first application, and (2) from the order dissolving the temporary injunction granted by Judge Albritton. In view of the fact that we have upheld the order granting the injunction upon the second application, we deem it unnecessary to discuss the propriety of the Court‘s action upon the first application of complainant for such injunction. If error was committed in denying the application when first made, it was corrected when the order for the injunction was made upon the second application therefor.
When the order dissolving the injunction was made, an appeal had been entered by the County Commissioners, and the Clerk, for themselves and for their co-defendants. This notice and entry of appeal having been filed and duly recorded as required by law (
The defendants, who voluntarily appealed, had the right to join their co-defendants, who were also affected by the order, as parties appellant. (Rabinowitz vs. Houk, .... Fla. ...., 129 So. 501, Hay vs. Isletts, 98 Fla. 1026, 125 So. 237; Guaranty T. & T. Co. vs. Thompson, 89 Fla. 35, 103 So. 110.)
It is a general rule that when an appeal is perfected,
Furthermore, where the defendants are so connected that the rights of one cannot be determined without affecting the rights of the others, and an appeal is lawfully taken by one defendant, the trial court pending the appeal, cannot take any steps in the case. 3 C. J. 1261; 2 Enc. Pl. & Pr. 334.
This court has said that “When jurisdiction of appellate court attaches, it is exclusive as to subject covered by appeal.” Wiley v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126.
By applying the rule just stated to this case, the lower court was without authority to make the order dissolving the injunction at the time it was made, and for that reason the said order should be and the same is hereby reversed.
A supersedeas is not essential to the acquisition of or to preservation of appellate jurisdiction. Wiley v. W. J. Hoggson Corporation, supra.
Per Curiam.—A majority of this Court are of the opinion that so many vital and controlling provisions of Senate Bill No. 911, Acts of the Legislature, Session of 1931, being Chapter 15560, of the 1931 Special Laws, are unconstitutional that by reason thereof the whole Act is unconstitutional and inoperative, it being impossible for the Court to say that with the plainly unconstitutional provisions eliminated from Senate Bill No. 911 (Chapter 15560) entitled:
“An Act Creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, maintain and carry on annually a fair or exposition
in said County, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said tax not to exceed One Mill on the Dollar, and giving the said Board of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said Act and all Funds derived from said tax or any other sources,”
that said Bill would have been enacted at all. Therefore that Act falls in its entirety.
Senate Bill No. 910 (Chapter 15557), entitled:
“An Act requiring the Board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00), which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A. D. 1930, and to end on the 30th day of September, A. D. 1931,”
is in pari materia with Senate Bill No. 911, and if Senate Bill No. 911 is wholly void, the legislative purpose and intent designed by Senate Bill No. 910 cannot be accomplished, so that Act must likewise be held insufficient as a basis for any action or payment of money by the County Commissioners of Volusia County, such as was sought to be enjoined in this case.
Since the principal object of the bill of complaint is to declare unconstitutional and void the aforesaid Acts of the Legislature of 1931, and relief so adjudging them void and unconstitutional is sufficiently sustained by the bill, the injunctions granted should be affirmed insofar as they enjoin and restrain acts of the County Commissioners of Volusia County under the two 1931 enactments hereinbefore referred to.
The injunctions granted are accordingly limited and
The question of enjoining payments of moneys by the County Commissioners of Volusia County, Florida, under
Orders granting injunctions limited in effect, and as so modified, affirmed. Order dissolving injunctions reversed.
Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J.J., concur.
Whitfield, J.—Even though under
The legislature cannot exercise judicial functions. A legislative command in the nature of a judicial decree that county funds which have been appropriated for payment to a specific payee shall be paid to a different payee, without anything in the act to show the right of the new payee
Buford, C.J., and Ellis, Terrell, Brown and Davis, J.J., concur.
Brown, J., (Concurring specially):—It appears that the conducting of a County Fair in Volusia County constitutes a purely local and county purpose, and this being true, the legislature has no authority under the constitution to require or compel the county to assess and impose ad valorem taxes for such a purpose. The legislature may authorize the county to do so, but it cannot compel or require it.
This question was very ably discussed and the previous decisions of this court thereon reviewed, by this court, speaking through MR. JUSTICE STRUM, in the case of Amos v. Mathews, 99 Fla. 1, 126 So. 308. A few extracts from the opinion in that case read as follows:
“But the existence of local county officers as a part of our form of government, and for the performance of purely local functions, is clearly recognized by the Constitution, although the legislature possesses powers of the broadest possible nature consistent with the constitutional existence of those officers, in determining the extent of their local powers and duties. Therefore, while the legislature may shape local institutions and regulate the frame work of local government with reference to local powers, it can not abrogate these constitutionally recognized institutions and take to itself the complete and direct exercise of local functions in matters of purely local concern.”
“It is contended in this case that a county is a mere arm or agency of the State—that it is merely ‘the State Acting locally.’ The foregoing resume of our constitutional system negatives this theory so far as the administration of purely local affairs is concerned. It is true that a county is an agency of the State, having no inherent power, but deriving its powers wholly from the sovereign State. It is also true, to paraphrase the
language of one of the briefs herein, that the principle of local self-government does not constitute each county ‘an independent sovereignty, managed by a board having legal rights.’ Nevertheless, their existence as local entities for local purposes as well as their existence as legal political divisions of the State is recognized by the Constitution. The same power which created the legislature, namely, the sovereign people, recognized the counties. While a county in the performance of certain functions is an agency or arm of the State, it is also something more than that. If a county were no more than a mere agent of the State,—the State acting locally,—bonds issued by a county would in effect constitute State bonds, and therefore by virtue of Sec. 6 of Art. IX of the Constitution would be void ab initio. While the county is an agency of the State, it is also, under our Constitution, to some extent at least, an autonomous, self-governing political entity with respect to exclusively local affairs, in the performance of which functions it is distinguished from its creator, the State, and for its acts and obligations when acting in purely local matters the State is not responsible. This, as we have seen, must be conceded in order to sustain the validity of county bonds.” * * * * * * * * * * * *“When the language of
Sections 2 and5 of Art. IX is contrasted, however, and is considered in the light of our institutions of government and in the light of the construction placed upon what is nowSec. 2 of Art. IX in Cheney v. Jones, supra, it is our judgment that the framers of the Constitution intended to and did withhold from the legislature the power to directly levy, or to compel a county to levy, a local county ad valorem tax for an exclusively local purpose as already defined herein. Local administration of exclusively local affairs, that is, affairs in which the State has no sovereign interest as such, is undoubtedly contemplated by our Constitution. To withhold the co-ordinate power of local determination as to taxation in matters of exclusively local concern, would leave little of local government. See Cooley, Taxation (4th ed.), Sec. 416; et seq; Jackson Lbr. Co. v. Walton County, 116 So. 771; People v. Mayor, etc., 51 Ill. 17; Pope v. Phifer, 3 Heisk. (Tenn.) 682, 700; Morgan v. Schussells, 81 N. E. 814;People v. Common Council of Detroit, 28 Mich. 366; People v. Village of Pelham, 109 N. E. 513; State v. Omaha, 200 N. W. 871; 46 A. L. R. 602, 610; Cooley Const. Lim. (7th ed.) p. 337.”
It may be as contended by Commissioner Davis, that the legislation here under review comes in conflict with
I am also inclined to agree with Justice DAVIS that under
Davis, J., concurs.
Davis, J., concurring with WHITFIELD, J.:—I concur with the view expressed by MR. JUSTICE WHITFIELD that Senate Bill No. 910, which became Chapter 15557, Acts of 1931, is in the nature of a judicial decree requiring the County Commissioners to pay over to the Board of Trustees of the Volusia County Fair, a body proposed to be created by an Act of the Florida Legislature, the sum of $6,000.00 that was appropriated to the Volusia County Fair Association by the Board of County Commissioners in the budget for the fiscal year ending September 30, 1931, and that such legislative command being in the nature of a judicial decree that County funds which have been appropriated to a specific payee shall be paid
I also concur in the view that Chapter 15560, Acts of 1931, is unconstitutional for the reasons pointed out in the opinion by MR. COMMISSIONER DAVIS and in the concurring opinion of MR. JUSTICE WHITFIELD.
The bill of complaint shows that an appropriation was made of the sum of $6,000.00 to the Volusia County Fair Association, Inc., by the Board of County Commissioners of Volusia County for the fiscal year beginning October 1, 1930, and ending September 30, 1931.
Such appropriation was specifically authorized by
The object of the 1931 Act was simply to amend this already “fixed appropriation” which had been validly
If such change gives any one the right to complain, it is not a taxpayer of Volusia County, but is the Volusia County Fair Association, Inc., whose “fixed appropriation” has thus been diverted to another separate and distinct body.
In fact, the real complaint against the payment of this $6,000.00 which is a “fixed appropriation” to the Volusia County Fair Association, Inc., seems to be that Chapter 7388, Acts of 1917 (
I am unable to see where we can declare such purposes as those set out in
Publicity is perhaps the most powerful influence which exists in our modern life. So great is its value that over a billion dollars a year is spent for it by the people of the United States. Holding a fair or exposition to exhibit the
Here the Board of County Commissioners in September, 1930, determined that the publicity of the advantages of Volusia County through the medium of a fair or exposition would be worth at least $6,000.00 to the County, and they put that much in the budget to be used for that purpose.
This was appropriated to be paid over to the Volusia County Fair Association, Inc., as a consideration for the publicity and other advantages which the county would receive through the medium of the Volusia County Fair Association‘s activities in holding a fair or exposition during that fiscal year. Unless we are going to declare the 1917 statute unconstitutional, as well as the 1931 statute unconstitutional, there is no ground to enjoin and prohibit the County Commissioners from paying out this money which they deliberately appropriated under express authority of the 1917 statute, and in consideration of which Volusia County Fair Association, Inc., evidently has incurred expenses and rendered services to the County which justly entitle that Association, if not its 1931 successor, to receive these appropriated funds.
Brown, J., concurs.