*1 in long is the minutes so as there sufficient' evidence otherwise, that such determina- before the court to show sustained, if made. tion would have been controversy that an present The falls within the rule injunction taxpayer to restrain granted to a will not be discretionary powers Commis- the exercise expenditures county, sioners as to contracts corruption fraud, unfair power, where no abuse dealing proved. interlocutory injunction applied was, there-
fore, properly denied, affirmatively when it was made to appear to the chancellor the answer and affidavits actually case that' the contract under attack was let pursuant competitive bidding by a bidders, least three of the four and that no unfair dealing disadvantage public intended, nor any prejudice public actually resulted, interest done, way what has been it was carried out. pointed out',
For the application reasons here for injunction supersedeas in the nature of a denied interlocutory appealed order from is affirmed. Affirmed. P.J., J., concur.
Whitfield, Terrell, J.,C. J., J. Buford, and Brown, and Ellis concur opinion judgment. al., Appellants,
Ben D. Thursby, vs. Isaac Stewart, et A.
Appellee. A. Appellant, Stewart, Ben vs. D. al. Thursby, Isaac et
Appellees.
Opinion filed December 1931. rehearing January 18, Petition for denied 1932. *3 WhileTioÁr, DeLand, Landis & Hull, for Board of Pair; Trustees of Volusia Co. Daytona Gardiner, Beach,
W. J. Thursby, for Ben D. individually al., constituting et and as County; Stewart, Stewart DeLand, for Solicitors *4 A. Isaac Stewart. Stewart, Isaac A. will
Davis, Commissioner. whom we complainant, property refer to as the the owner of and a taxpayer County, Florida, in Volusia his of com filed bill plaint County in Circuit Court of the against Volusia County of members of Board Commissioners of said individually County constituting Volusia, as of and County Commissioners, Jordan, Board D. said of Samuel County etc., Association, Inc., Fair a cor Clerk, Volusia County poration, Fair, of Trustees of Volusia a Board corporation, Swope, Nordman, W. E. Lillian G. Frances Dreka, individually A. Tyler, B. Prevat't and J. G. and A. of “Board of constituting as the members Trustees of alleged County Fair”, corporation, Volusia a and therein substantially County Commissioners, that the without said authority gratuity, of law, paid out, as a donated and of Volusia public sum of four of funds hundred dollars County County corporation, Association, to Volusia Fair help securing operation fair, of a war- having rant for and said sum issued Chairman been budget' of Board; prepared Clerk said that Board, appropriation provided $6,000.00 said of was agricultural paid for to be out fund said of the County of Association, Fair that it was out' and appropriation paid; said of was $400.00 said sum regular Florida, of Legislature at the session of the passed entitled, bill requiring County “An Act the Board of Commissioners County, Pay of Volusia Trustees of the Volusia the Board Over to County sum of Six Fair, appropriated ($6,000.00) Thousand Dollars which was Association, to the Volusia Fair Board budget County, said in the year beginning, 1st fiscal on the said day day October, A. D. and end 30th on the September, D. 1931.” A. being known same and referred to Senate herein. 910; passed Legislature Bill No. a bill the same also entitled, creating “An County Act a Board the Volusia requiring Fair, County, Florida, in Volusia acquire, purchase take said Board of Trustees to over in the property all name Association, Inc., pro- the Volusia and to carry
mote, annually exposi- maintain and on a fair or county, investing tion said Board of Trus- said powers carrying tees with other and duties for the out provisions Act, requiring of said the Board County, Florida, Commissioners Volusia levy necessary a tax sufficient to raise the funds carry provisions Act, of said ex- out said Act not to giving Mill dollar, ceed One on the *5 exposition oí Trustees the and that control of fair or entire property all matters connected therewith and all may de- acquired be said all under act and funds rived from said tax or other sources.” being same to herein as Senate known and referred No. approved Bill 911 and were Gov- that both bills 11, 1931; pursuant on of ernor June to the terms County No. of Senate Bill Commis- said Board sioners, requested had been Board of Trustees said County $6,- pay over sum Pair, Volusia to them the County appropriated to 000.00 which has been Swope, E. Association, defendants, Pair that the W. Tyler, Nordman, Prances A. A. B. Prevatt and Lillian G. w;ere as Dreka, designated Bill No. 911 G. J. Senate although complainant Trustees; such Board objected personally had to a number of said Board against payment sum, of said meeting of said Commissioners had been be called to July 13, 1931, on taking held action making payment money of such to the Volusia Association, budget Pair and to include in their year money such sum of required or de- by the manded Board of Pair, Trustees of Volusia alleged upon and was information 'belief that it was misappro- the intention said Board of Commissioners to priate $6,000.00 by the further paying sum it over to the Board of Trustees Pair accordance provisions Legislature; with the Acts appropriation to the Volusia Pair Association authority law, without that it was violation X, of Section Article of Florida, Constitution provides that, Legislature any County shall x "The x x authorize appropriate money x x x x to obtain or for or to loan any company, corporation, in- association, its credit individual,” stitution Legislature power
and that without to turn over *6 expend public to or dis- funds or of administration pursuant any and to way, except under burse the same of of law, by duly officer the State a commissioned County purpose. State, valid of the Counties of the for and upon the information alleged Complainant further, copies of which were bills, 910 and belief, that said are each unconstitutional complaint, of to bill attached impose com- beyond power to legislative it because is County; that people of "Volusia upon the pulsory taxation is not it and void because bill is unconstitutional said mandatory to the re- nature, as but authoritative pay said sum quirement money arbitrarily any defining without and power used, which is to that it is not within the it be directly levy levying Legislature compel of the local an exclusive an ad valorem tax for money compel appropriation purpose, or to concern, county- has no that it manda- in which the State money torily expended be requires appropriation designated such, in viola- officers, as non-commissioned Constitution, it requirements tion of the and Constitution, III, of Article violates Section by general law, legislature provide requires shall mechanical, agricultural, incorporating educational, com- transportation, mining, mercantile and other useful necessary, but panies or deemed associations any subject, any special pass law on shall not special shall be of no law effect. constitutionality Senate Bill No. 911 further upon grounds mandatorily that, (a) attacked re- quires acquire, purchase the said county, property take over in the name all Association, Inc., (at a sum not to $83,000.00, pledging exceed the name and credit of payment thereof), pro- mote, carry annually, exposition maintain on a fair or county, mandatorily requires and it also, the Board levy Commissioners to a tax to funds raise carry provisions Act, (b) sufficient to out the re- it' quires Trustees, effect, Officers, the Board of *7 by by be freeholders to be the elected districts and large, (c) at it and designates names the said officers, provided therein, until an in election violation provision provides the Section III, Article by by appointed for an people election of officers the or Governor, (d) permits holding it of such the the offices general (e) State, after the next be in election to held the special law—attempts regulate it—a to the and determine compensation of provided certain therein, (f) officers provides that if the said Board of Trustees at time taking title to property, hand, have on said does not pay purchase price funds sufficient' to it is full, empowered issue, authorized to make and interest negotiable bearing promissory
Monday July any any in or time at of thereafter, estimate any pretended money necessary of for amount' to be raised purpose carrying the provisions act, of out to- the of said wit, aforesaid, Bill Senate No. as Ben and that said Thursby, Jackson, D. Jones, Apgar "W. C. Bedford T. K. Forster, Jordan, and Davis Sami. D. of and Clerk said enjoined annually Board, levying any or at time purpose carrying pro- ad tax valorem of out' the (3) County Act,” restraining of said the visions Yolusia Fair Association mem- and the individuals the constituting any bers of issuing of said “from note Board Trustees under color of said of Senate Bill No. for the sum any $83,000.00 money or sum of the other in name of the County of Florida, purchase Yolusia State of and the any of property or assets Yolusia Fair other Association, Inc., corporation organized existing and and of the laws of the State under virtue any pledging obligating wise the of Yolusia whatsoever,” and State extent Florida to and injunction permanent. bill be made was sworn Complainant'. to the application injunctiod
Notice of an was temporary cause, thereupon in the defendants, filed the Volusia and Inc., Fair Association, and of Volusia Trustees County Fair, interposed objections granting certain same, objections, oath, based, were under and upon grounds (1) substance the bill is multi- farious, Association, (2) that $6,000.00 appropriation made, whom the was chartered under General Laws of Florida author- izing corporations profit, not for formation operating fairs, etc., and which law authorized Board carry- association,
make assist in contributions to such ing expend purpose, out its their discretion, they aiding development sums deem best agricultural, horticultural and live stock resources of the county, giving publicity by aiding to the same exhibit- ing of such fairs, resources at or in connection with such offering including paying premiums, (3) that pari Bill Senate No. inis materia with No. Senate Bill 911, and specifically that said Senate Bill No. .911 declares purchase taking property over County Fair Association, promoting, and the main- taining annually carrying on of a fair, levying of paying tax the same over *9 County Fair, of County Volusia all pur- are for a valid pose, (4) duty County that it' is shown be of to the the pay $6,00(100 Commissioners to the sum of over said and showing any that no is that of made the defendants are promissory notes, (5) ap- about to issue the said that the money propriation County of to the Fair Associa- any is of company, not the benefit such but tion for the County, (6) the citizens, benefit' of and its not that is enjoined the sought appropria- true that tax to be or the money sought enjoined, pertaining tion of be one affair, Florida has in which of local and State exclusive (7) concern, no not the Board interest' or that it is true that of non-commis- of the Volusia are Trustees they contrary, com- officers, sioned but on been the have contemplated missioned in the form the constitution (8) the Senate numbered State of that Bills credit authorize to loan its and do not the any individual, (9) company, that the association or nothing -than Fair is more public of a public agency, a subordinate established aid provisions 3, of purpose, that of Section Art. and the Board, apply the not to such and that Constitution do special legislation on Senate Bill does not contain No. subjects Constitution, said Section the forbidden Bill 911 that (10) provision Senate No. the that the be Board of Trustees of Volusia Fair shall free- power of selection holders does not curtail the Governor’s Constitu- 27 Article III the so as to violate Section tion, any provision relating thereto, (11) Constitutional provides that Senate Bill No. that the event the naming Trustees of the Volusia Fair should judicially unconstitutional, determined be to be that appoint Governor such shall trustees that Gover- appointed nor has same individuals as are named Act, Trustees, they duly to be have been commissioned, (12) that the term of office years, is not trustees is less than six condemned (13) provision Constitution, of the State that Senate Bill attempt No. 911 fix fees does of officers (14) purchase money, the said *10 Florida, visions Section Gen. Statutes Eevised 2191, Compiled Section General Laws of apply .shall not Board of Trustees of the Volusia the County Fair, any agreements nor to contracts or of said Board, purchases obligations thereof, or if and otherwise, provision may held be -from eliminated the affecting Act Act, (16) without the of the and bill equity. that the without application injunction temporary for a was denied
by Judge Simmons, sitting Daniel A. in Volusia (cid:127)Complainant complaint by then amended his bill of al- leging further, upon substance, belief, information and property that the referred to in Senate Bill No. was acquired the Association, Inc., Fair Sidney Wood, deed A. as Executor and Trustee under last, deceased, McBride, the will and testament Asa D. good recited Dollars consideration Ten and other consideration, .and fact, valuable but as matter of no paid therefor; consideration was was said land Association, Inc., (cid:127)donated the Volusia Fair and Executor, reposed was in violation of the trust said only Trustee, will .and inasmuch as said authorized convey pur- him real to sell estate the estate pose converting into cash for same re-investment will, under terms .and uses directed of the Association, consequence thereof, the Volusia Fair property, Inc., not have title the same did improvements thereon, practically with constituted all property assets of said Volusia Inc., and that unless restrained and en- Association, Court, property ac- by order the said will be .joined obligations Trustees, quired the said Board will County of Volusia to the the name issued injury great irreparable said and the tax- alleged further, said payers therein. The amendment day complaint filed, bill of .upon *11 budget County prepared tentative their Commissioners placed year 1, 1931, and beginning for the fiscal October appropriation $15,000.00 for use and therein, an County of Volusia of the of Trustees benefit' said Board Court, cause prevented will Fair, which unless order millage upon property of a to be levied the taxable $15,- raise said sum of County, in an amount sufficient to and copies of the deed the said will 000.00. Certified said part The thereof. attached as exhibits made were complainant was the oath amendment verified except on information and true, as to matters stated matters, believed them to be true. belief, to such he and as absent from judge being Seventh Circuit of the thereto, complaint and the amendment Circuit, the bill of Judge defendants, presented to to the without notice Twenty-Seventh who Circuit, Paul C. Albritton prayed temporary restraining thereupon granted order as Stewart, support application, In Tom for in the 'bill. attorney Complainant, an affidavit before made Judge averred, Albritton, which County Commis- “That the said defendant Board money making payment of the have sioners mentioned Trustees, deferred complaint Board of the bill of an in- Fair, because of of Volusia sufficiency money fund of Volusia agricultural in the adequate pay become County, which fund has now be- urgent are $6,000.00 that of demands
the sum of ing make said nor of that not has now under Commissioners Board made on said Excellency, Gover- payment, and that' his his desire to said Board signified has payment promptly or show cause it make doing; that said so an- preparation of its consideration continuous session budget, is in almost nual same; affiant be- day preparation of day in the injunc- application give this notice of that to lieves sum and payment said immediate would tion cause enjoined; and be- injurj*' sought to be accelerate an. if apprehended will be done injury lieves remedy complainant, immediate afforded affiant fears that the Board of of the Volusia property Fair title to take obligations pay- issue ment name of granted.” thereof unless immediate relief injunction From granting temporary the said order the defendants, Thursby, Jackson, Ben. W. D. C. Bedford *12 Jones, individually K. Apgar, Forster, T. Davis and and constituting of of the Board Commissioners County, Volusia Sami. D. Jor- dan, Court, Clerk of the for Volusia Circuit and Coun- ty, Florida, of of and ex-officioClerk the Board Coun- ty for themselves and for the other de- (naming them) day August, 1931, of fendants on the 18th entry appeal. filed their notice and of day August, On the said 18th of the Volusia Association, Inc., the of of and consisting E. Fair, said Board of W. Swope, Nordman, Tyler, Pre- Lillian Frances G-. A. B. A. Dreka, jointly severally vatt and J. G. moved and Court the injunction. Objection temporary the dissolve interposed complainant, hearing was the but on 21st day hearing August, A. D. held an order place Judge Simmons, acting was made in the dissolving Judge 7th stead of the Circuit the Judicial injunction. this and the order the said From order Judge denying application Simmons first tem- porary complainant appealed. two injunction, appeals been here. have consolidated granting,
It here that settled continuance restraining temporary orders are largely modification general public, af- discretionary, rights of the if and the R. thereby, & S. be considered. Suwanee P. fected should 538; Ry. Co., Co., vs. Coast Fla. West 398, County, 90 Fla. So. 73. vs. Pinellas McMullen applications Equity provides that in all cases Rule grant- injunctions, judge presented, to whom before ing shall the same be satisfied that sufficient notice sought en- application be given party has been place joined, and of time and where the motion is granted made, be order be and no shall without such notice allega- judge it is from the sworn unless manifest bill complainant, in the or other tions or affidavit competent injury apprehended person, that will remedy afforded, done, if when he an immediate restraining party complained an grant instanter order or hearing until the or the further order of court judge. justify granting injunction exparte, “To without notice, ac- allegations the sworn bill or showing must state facts how companying affidavit why precipitate giving will of notice accelerate injury complained can de-
the termine is which the court giving will, whether of notice itself likely mani- result, to so and such facts must make it applica- giving *13 to the court that the of notice fest likely will, to, or is have vs. such result.” Godwin tion cited Phifer, and other cases Fla. therein. clear, injunction for be in a bill an must allegations
The affidavit, positive, and must be verified an direct positive; also, must be direct and and where which upon in the infor- allegations bill are stated the material bill, annexed mation, be the additional there should person from is de- whom the information affidavit' verifying given. the truth of the information thus rived allegations of fact in positive If the sworn direct amended, a ground sufficient constitute bill as are grant injunction, and the refusal the court a tem- an porary injunction upon application the first a bar is not making upon application, (cid:127)to the order second granting- not be the lower court should held in error for appeal the order from which the first was taken. We can- say dispense with showing was not sufficient opposite parties application notice to of the second injunction. general rule, application As will denied a second he merely on denied, unless showing that the first one complainant presents new and additional matter discov- ap- hearing ered former refusal since the but “the of an plication injunction preliminary for a com- does not bar plainant making application, from the decision a second being discretion; may, in an act and the Court subse- quent application, same a different conclusion on the reach convincing or more The is not bound evidence. court ruling, bound, adhere is to its former nor it case although application court, former will was in another by way comity.” generally 366; so C. Louis- do J. Ky. 465. Commission, ville & Co. R. N. R. vs. R. Fed. application injunction, a second for an when While upon upon based which same evidence evidence upon application will presented should been first have generally being judicial denied, it which be matter exercised, a court will not be held discretion should granting application if a clear case error a second presented. i j
In McMullen vs. supra, Pinellas we held every granting temporary “to injunction, two es- prevail. sential must allege conditions must facts bill appear sufficient to constitute a cause action ground and, injunction, on showing the full made appear light both must in the circumstances, sides it necessary injunction protect legal rights that the *14 plaintiff litigation.” pending application temporary injunction, On an for a chan- may City Apa- merits of cellor consider the bill. Apalachicola Co., lachicola vs. Land 9 Fla. 70 A. D. 340, 284; McKinney vs. Commissioners Bradford Coun-
1006
ty, 26 Fla. 4 vs. 267, 855, McMullen Pinellas So. supra. taxpayer may enjoin
That a citizen an unauthorized expenditure public Rick money, is established. well Whitehurst, 152, 205, man vs. vs. 73 Fla. So. Whitner Woodruff, 465, 110; Fuller, 68 Fla. 67 So. Anderson vs. 380, 41 R. 684, (NS) 1026, 51 Fla. So. 6 L. R. 120 A. S. A. 170, Taylor, 819, & Co. 99 Fla. So. 14. Lassiter vs. enjoin Likewise, equity jurisdiction has assess illegal upon estate, ment and collection an tax levied real which, if collected, will cast a cloud over the assessed and Russell, 116, title of such Fla. real estate. Pickett vs. 634, 764. So. inquiry; are, therefore, with the Are the
We confronted original alleged, bill, or the bill as facts either in the showing both sufficient on the made sides amended justify discretion, in in the exercise of his the chancellor injunction? application granting the second provision all where there is no constitutional In cases chargeable county, expense it must be making an legislature county justify purpose in order to defray county authorizing to taxation to to resort 687; Board of Com Justices, 13 Fla. (Opinion of Commis vs. Board Pilot Escambia missioners 697). general rule 197, 42 There is no sioners, 52 Fla. So. county (Commissioners determining is a what 339). Jacksonville, 36 Fla. County vs. of Duval Fla. 66 So. we County, 68 vs. Duval In Jordan said:
state to purposes’ is not' defined purposes, “While the Constitution shall its law. what appropriate law authorize the This, is a assess being so, ‘County purpose’, for no several counties impose making other Legislative provides that ‘the taxes for purposes,’ the term functions, in the amplified * * * * " in the [*] * * power, the courts are Legislature ® * * exercising determine ‘county organic * * *15 1007 ineffectual, to un- authorized such determination render provision violated, or un- less some Constitution is prac- legal no or particular less the can enactment have any ‘county purpose.’ Where tical relation to whatever inquire may the existence courts in this case into statute, legislative power the absence enact will power clearly appear must be de- before the statute designed.” purpose clared to be ineffectual 181, 769; 64 also, Bowden, See 67 Fla. So. vs. Jacksonville 64 Ocala, 204, Anderson vs. 67 Fla. So. 775. beyond “A judicially statute cannot' declared
power Legislature enact, provision unless some be, it, the Constitution which is in with can conflict pointed 85 Moran, out.” 80 346. Neisel vs. Fla. So. Complainant No. 910 insists that both Senate Bill 9 Senate Bill No. violate of Article of our Section ‘‘ Constitution, provides not Legislature shall ** * ® * any county appropriate authorize or obtain money for, any or corporation, to loan its credit to associa- tion, or In institution individual.” the first con- stated tention, commissioners are in accord with com- plainant. hand, On the other the Volusia Fair Association, Inc., and the Trustees of the Volusia Fair contend that the Volusia Association, non-profit Inc., corporation, taxes levied obtain paid to be to it funds are not levied the benefit company, a chartered but for the people; benefit that this in Earle court' held vs. Dade Fla. agricultural that taxation for fair and ex- county purpose, being true, hibition is for a valid and that they ask, .objection “What placing valid is there to money non-profit corporation in the hands aof to aid in ” carrying out of such ? It is the Court say upheld act shall be or declared invalid they ill-advised, to be because believe it wise as the case only We are whether not it be. concerned provision organic law. some denounced
In Earle we vs. 92 Fla. Dade upheld of court, validating a decision the of lower bonds County Dade, of the issuance of the authorized Legislature providing acquire- the for under an act the holding fairground and property ment of real fair and purposes, buildings and for the and construction thereon of necessary of purpose other structures for the or desirable conducting agricultural exhibits, authorizing and the fairs levy upon property an Commissioners to annual expended carrying purpose tax re- to be out such and quiring upon time, them from time to the issuance such levy collected, bonds, to to and cause to be a tax sufficient' pay the thereon, interest and the annual installments year they speak- In year, such bonds from to mature. ing said, Court, Justice Brown “The of these fairs has no doubt to stim- effect been agricultural It improved ulate an methods. interest may to public that be derived also be true the benefits Legisla- the such fairs sufficient to authorize are public place expense upon rather ture to the thereof the public spirit upon than a few individuals who have enterprises. this promote organize As to to such paterna- though somewhat question, act in feature say prepared nature, listic in Legislature we are not its come in conflict powers or has exceeded it's held any Court has restriction. This with constitutional law appropriate Legislature, exercising its county pur- ais making functions, what determine 9, of the meaning 5, Art. Section pose within the ren- authorized to Constitution, are not courts pro- oilier legislation ineffectual, unless some der par- violated, or unless the the Constitution vision of practical legal relation have no or enactment can ticular * * * * * * * * * # county purpose. whatever If operate power to has the establish state a commis- department, provide agricultural state sioner also, might it appear would agriculture, political county, a legislation, by proper authorize the local state, promote agency subdivision county by acquiring interests agricultural necessary buildings constructing property and particular public fairs in the free the conduct county.” (Italics supplied). what Bill
Senate No. does direct merely requires $6,000.00 used, but said sum of shall pay it over the Volusia Pair. purchasing and Bill 911 declares that Senate No. taking property Pair Asso- over of the of Volusia ciation, maintaining carrying on Inc., promoting, annually county, and the Exposition a Pair in the *17 County levying by a tax Commissioners order carry provisions a valid out the “are all for act, County purpose.” powers provides the constitution
While by cotmty prescribed law duties are commissioners Florida), particu this (article 8, 5, section Constitution of by pro lar mandate the Constitution is not violated o£ duty bill, of said it' the of the Board visions that makes County Pair, make submit Trustees of the an amount of Commissioners to the Board of carrying necessary purpose of money be raised for the give said Board provisions act', to the out the supervision and con Pair, the of Volusia by moneys the tax” be raised of “all trol only have Commissioners provided. therein Ricker, 70 by (Baden v. authority as is conferred statute 708, 74 Fulch, 73 Fla. 694; Stephens vs. 154, 69 So. Fla. af pertaining to the 805), duties and administrative So. by upon officers County may law be conferred fairs of a (State ex rel. Buford than the other supra). Daniel, vs. creating Goun- pass laws Legislature power the constitu- provided those
ty Officers, than other by constitutional some restrained tion, “absolute unless provision.” (State ex rel. Bryan, 293, 376, Fla. 39 So. 929). persons by “All authority of law with intrusted
receipt public money, through or whose hands such money may pass treasury, ‘public officers’, are whether the general service special, be or transient permanent.” xxxxxxxxxx. 27, “Section article 3 of the State means Constitution that when not provided otherwise in the Constitution the executive and governmental administrative functions of the state performed by and counties shall be officers by who shall be elected people appointed Governor, and that the compensation duties and of such officers shall be fixed 7, law. 8, Section re- article quires county that such officers shall be commissioned by they Governor, being and that before commissioned secretary shall file with the of state a bond approved by comp- commissioners troller, 14, 4, Section provides article that all commis- sions shall be in the name authority and under the the state of great sealed with the seal of the state, signed by secretary countersigned by the Governor and every 2, requires state. Section 16, article officer prescribed to take the oath. 16, Section article provides the term of Legislature any office, shall not create longer years.” which shall be than four State, Dade vs. 95 Fla. 76. impelled We are to the conclusion that the lower court *18 granting committed no error in temporarily the order re- straining the Board of Trustees of Volusia Fair issuing any from under note color Bill 911, of Senate No. any $83,000.00, for the sum of or money sum other purchase the name of any for the prop- erty or other assets Association, Inc., pledging obligating otherwise the said extent whatever.
Since no one other than the Board of Trustees of Volusia perform Fair is authorized to attempted duties by upon be conferred the said Bill 911 Senate No. Trustees, expressed purpose said Board of and the of the
1011 carry provisions of levy tax is out the of the ad valorem cannot act, provisions as we have seen powerless of Trustees are out because said Board carried levying of the an- it follows that county, to act for property personal nual all taxable real and tax on therefore, that We hold should be made. temporarily order granting an not err in lower court did County Commis- restraining of the Board the members for the ad valorem tax levying sioners an 911. of Senate Bill No. carrying provisions out the complainant from up appeal will now take We injunction upon the first denying preliminary the order dissolving the tem- (2) order application, from the In view Albritton. granted by Judge porary injunction in- granting the upheld the order of the fact that we have unneces- deem it application, we junction upon the second upon the Court’s action sary propriety of the to discuss the If injunction. complainant for such application of first when first application denying the committed in error was injunction when the order made, corrected it was application therefor. upon the second was made dissolving injunction made, When the order County Commissioners, appeal had entered been. Clerk, for their for themselves and co-defendants. duly entry appeal having notice and been filed This Compiled required (Sec. (2172) law recorded as gave Florida, 1927) appellate General Laws appellants jurisdiction cause and also of the court Stovall, 116, 744. appellee. vs. Fla. So. Stovall voluntarily right appealed, had the defendant's, who co-defendants, who were also affected join their Houk,.... (Rabinowitz vs. Fla. parties appellant. order, as 237; Hay Isletts, Fla. . . vs. ., 129 So. T. & Co. Thompson, 89 Fla. 103 So. Guaranty T. vs. 110.) *19 appeal perfected, is general rule that when is a It cognizance appellate
the cause becomes one court, authority and for that court alone. The of the lower terminated, proceed cause, court is it cannot subject appeal, at least matter of the until appeal 1252, 1255; heard and determined. 3 C. J. & State, Ene. P. 332. Pr. See also Holland vs. Fla. 549. Furthermore, so where defendants are connected that rights affecting of one cannot be determined without' taken, rights lawfully others, appeal of the and an defendant, pending appeal, trial one court can- any steps 1261; 2 & not take in the 3 C. J. Enc. PI. case. 334. Pr. jurisdiction appel- has
This court
said that “When
attaches,
subject
late court
it is
exclusive as
covered
Wiley
appeal.”
Hoggson Corporation,
v. W. J.
89 Fla.
446,
By just applying case, the rule .stated to this the lower dissolving authority to make the court was without order injunction made, at the and for that reason time it hereby and the same is reversed. the said order should be acquisition supersedeas A of or is not essential to jurisdiction. Wiley W. J. preservation appellate v. supra. Hoggson Corporation, opin A majority this Court are of the Per Curiam. many controlling provisions of Senate so vital and ion that 1931, being Legislature, Bill No. Acts of the Session Laws, Special are unconstitu Chapter whole Act is unconstitu thereof the tional that reason being inoperative, impossible for the Court tional and provisions elimi say plainly with the unconstitutional (Chapter 15560) entitled: Bill No. Senate nated Yolusia Creating of Trustees of the “An Act a Board requiring County, County Fair, in Yolusia acquire, purchase and take of Trustees said Board property Yolusia all name of over Association, Inc., to promote, Yolusia exposition annually carry fair or on maintain *20 of County, investing said and said Board carrying out with of powers other and duties provisions requiring Board of Act', the of said and Florida, County County, to Commissioners of Volusia carry levy necessary funds tax sufficient raise Act, provisions out the One said tax not to exceed said Board of Dollar, giving said on Mill exposition such fair or Trustees the entire control of and all that property all therewith and matters connected Act all acquired Funds de- be under ’’ any sources, tax or other rived from said said Bill enacted all. Therefore would have been at entirety. Act in its falls (Chapter 15557), Senate Bill No. entitled: County requiring “An Commission- Act Volusia the Board Pay Over to the County, ers County Fair, the sum Board of Trustees of the Volusia ap- which was Association, ($6,000.00), of Six Dollars Thousand County propriated County County, in of said the Board of Commissioners year beginning, for the fiscal budget for said on the day October, A. D. to end on 30th 1st 1931,” D. day September, A. if pari Bill No. Senate with Senate is materia legislative in- wholly void, purpose and No. 911 Bill be accom- designed Bill No. cannot tent Senate be insufficient as a Act likewise held plished, so must money by payment of action or basis sought such as was of Volusia Commissioners enjoined case. in this complaint tois object the bill of principal Since the Acts the aforesaid and void unconstitutional declare adjudging them void so Legislature and relief bill, sufficiently sustained unconstitutional they be affirmed insofar granted should injunctions acts enjoin and restrain hereinbe- enactments two under the
fore referred to. accordingly limited and granted are injunctions
modified in enjoin effect only so as to and restrain threatened acts of the Commissioners Volusia *21 specified in bill complaint, insofar as such upon Chapter acts are based 15557 15560, Acts of 1931, of Florida, Laws grant- as so modified the orders ing injunctions are The Judge affirmed. order Simmons dissolving injunction granted by which had Judge been Albritton is reversed. question
The enjoining payments moneys by County, Florida, Commissioners Volusia under L., Sections 6516-6526 C. G. 4517-4527 S., B. G. Acts 1927, passed not on, is because validity, neither the con- struction properly nor effect of same is involved in the present appeal. injunctions granting
Orders in effect, limited so modified, dissolving injunctions affirmed. Order reversed.
Buford, C.J., Ellis, Whitfield, Terrell, Brown and Davis, J.J., concur. Even though J. (4527)
Whitfield, under section county G. L. may duly C. commissioners have an made appropriation county funds to the Volusia n county Association for an purpose, authorized designated (cid:127)act 910, Senate Bill No. inis a nature of judicial requiring county decree pay commissioners over to the Board County Fair, of Trustees of body proposed to be created an act of the Florida Legislature, proceeds out of the of the taxes collected county to be year collected in 1930, the sum of $6,000.00 appropriated that was to the Volusia Fair Association, the Board of year budget ending September 30, the fiscal 1931. legislature judicial A cannot exercise functions. legislative judicial command in the nature of a decree n county appropriated payment funds which have been specific payee paid payee, shall to a different with- anything payee out right the act to show the the new payment required for a lawful to be made is contemplated by the constitution. purpose, is not public alleged appropriation is not made for a It that the 10, IX, Article Con purpose but- sections violates to be If act be shown stitution. it be assumed designated as Bill Senate reference to the statute valid III, constitu 911, that act violates section Article No. county pur though may to a tion, in that it have reference yet Co., pose, v. Dade Fla. Earle governmental law, creating agency special company asso incorporating a “useful” purposes, but organic powers, section corporate, with when the ciation any any “pass special law on legislature to forbids effect,” of no special such law shall be subject, and provision in the exceptions here. The with not material of Trustees of the special requiring the Board act *22 in the purchase and take over acquire, Pair to by the Volusia County, property owned name of provisions, not Association, Inc., and other do Pair an by special act of Trustees created make v. In ex rel. purposes. State agency governmental for general 804, was a law 270, 87 99 So. the act Daniel, Fla. purposes. governmental It is agency an created and III, necessary section Article whether to consider constitution, also IX, Article are or sections and violated.
Buford, C.J., Davis, and Brown Ellis, Terrell, and J.J., concur. specially) : n —It appears that the Brown, J., (Concurring County consti- Pair conducting aof county purpose, being this and purely local a tutes authority constitu- under the legislature has no true, the impose county compel to assess and require or to tion may legislature purpose. taxes ad valorem compel re- cannot county so, but it do to authorize the quire it. IX provides
Sec. of Art. of the constitution that the legislature shall “authorize” the several counties assess impose county held, purposes. This, taxes for have we refers to ad valorem taxes. There is a vast difference be- authorizing county impose tween taxes for exclu- sively compelling local The former do so. county recognizes purely that the should have some voice county possible affairs whereas the latter would make authority centralization over all the local affairs up government, tending counties in thus the State to build which, government, a centralized and bureaucratic form of my contrary system mind, our established constitution. very question ably previous
This and the discussed court, this reviewed, decisions of this court thereon speaking STRUM, in the ease through MR. JUSTICE A Mathews, Amos 308. few v. Fla. extracts opinion read follows: that case as part “But local officers the existence of performance of government, of our form of clearly recognized Con- purely stitution, functions, local powers of although legislature possesses with consti- possible nature consistent' the broadest determining officers, in those tutional existence of Therefore, powers while and duties. extent of their local regulate legislature shape local institutions with reference government frame local work constitutionally abrogate these powers, it can not local complete take to itself the recognized institutions and *23 of in matters local functions of direct exercise purely concern.” local county is a mere that a in case “It is contended this merely is ‘the State State—that it the agency arm our constitu- foregoing resume of locally.’ The Acting theory far as ad- so the system negatives this tional is It affairs is concerned. purely local ministration no having agency State, county the is an that a true wholly from powers deriving its but power, inherent true, paraphrase the It is also sovereign State. the language principle herein, of one the briefs that the county self-government of local each does not constitute independent by sovereignty, managed ‘an a hav- board legal ing rights.’ Nevertheless, their existence as local purposes entities for local as as well as their existence legal by political recognized divisions of is the State power legis- Constitution. The same which created lature, sovereign namely, people, recognized county performance counties. While a in certain agency State, functions is an or arm of the it' is also something county If no more than that. were more agent State,—the than a mere acting State local- ly,—bonds county in constitute issued would effect bonds, State and therefore virtue of Sec. 6 of Art. IX of the Constitution would be void db initio. While county agency State, also, is an it is under Constitution, our least, autonomous, to some extent at exclusively self-governing political entity local respect with affairs, performance in is functions it distinguished creator, State, from its its act's obligations purely acting when the' local matters responsible. This, is seen, State conceded must be we have validity county order t'o sustain the ^ J ^ ^ ^ ^ ^ IX 5 of 2 and Art. language “When the of Sections light however, contrasted, and is considered light government and our institutions of 2 Art. IX upon Sec. of placed what now construction Cheney judgment that the Jones, supra, v. it is our in framers hold from the to with to and did of the Constitution intended directly levy, or legislature power to county ad valorem compel levy, a local already exclusively purpose as defined for an local tax exclusively affairs, local administration of herein. Local sovereign in has is, in which the State no affairs undoubtedly contemplated our Con such, is terest as power co-ordinate of local To stitution. withhold exclusively in matters of as to taxation determination government. concern, would little local leave local 416; seq; ed.), See. et Jack Cooley, (4th Taxation See People 771; v. Walton Lbr. Co. son Phifer, 17; Pope v. Heisk. etc., 51 Ill. Mayor, v. 814; 81 N. Schussells, E. 700; Morgan v. (Tenn.)
1018
People v. Detroit, 366; Common Council 28 Mich. People v. 109 v. Village Pelham, 513; N. E. State Omaha, Cooley 871; 610; 200 N. W. 46 602, A. L. R. (7th ed.) p. Const. Lim. 337.” by It be as Davis, contended Commissioner that' the legislation here under review comes conflict with Secs. of Art. 9 Sec. Art. of the Constitu- tion, I my but am inclined to base concurrence in the con- by upon clusions reached Commissioner Davis the com- pulsory features legislation, respect to matters legislature may only which under constitution the authorize, require, a to do.
I agree am also inclined to with Justice DAVIS County under section 6526 C. L. the G. appropriate $6,000.00
were authorized to to the Volusia County Pair Association, year Inc. for the fiscal beginning 1, 1930, Oct. but I validity doubt the compelling the act pay them appropriation this “Trustees County Pair.” The tax was not levied for specific purpose. And, for the forth, reasons above set I am inclined to think creating the act the “Board of Trus- County tees of the Volusia Pair” is itself unconstitutional. Davis, J., concurs.
Davis, J., concurring WHITFIELD, with J.:—I concur with expressed the view MR. JUSTICE WHITFIELD Bill Chapter Senate No. became judicial Acts is in the requir- nature of a decree ing pay Commissioners to over to the Board Pair, body proposed to be created an Act of the Legislature, Florida $6,000.00 appropriated sum of that was to the Volusia Pair Association the Board of Com- budget year missioners in ending Sep- fiscal 30, 1931, legislative tember being and that such command judicial in the nature decree that funds which appropriated specific payee have been paid shall be *25 by payee contemplated to a different constitu- is not the holding Chapter I acquiesce tion. in that' therefore 15557, mandatory 1931, operates Acts of insofar as it as requirement County on the Board Commissioners of of County payments Volusia unconstitutional, and that is by enjoined commanded insofar as Act should be by legislative payments Act seeks to coerce such fiat. 15560,
I Chapter also concur in view Acts of 1931, pointed reasons out unconstitutional opinion by MR. COMMISSIONER DAVIS concurring opinion WHITFIELD. of MR. JUSTICE complaint of appropriation
The bill was shows that $6,000.00 County made of the sum of to the Volusia Fair Association, by Inc., County the Board of Commissioners County year of Volusia beginning for the fiscal October ending September 30, 1931. appropriation Such specifically was authorized Sec- L., S., tion C. G. 4527 R. provides G. which “Board of the various counties State expend are authorized to their they discretion such sums as deem for the best interests aiding development their and in counties agricultural, horticultural and livestock of their resources giving publicity advantages, counties facili- agricultural, possibili- ties and horticultural and livestock production for, of their providing ties and counties aiding assisting the exhibition and demonstration such resources at and in connection with such fairs and including offering premiums expositions, paying respective of resources their coun- for such exhibition part Chapter 7388, Acts ties. This Section is unquestioned validity its for four- which has been as to years. teen object simply 1931 Act this amend validly which had
already appropriation” “fixed been paid,-—not made, providing that should Association, Inc., voluntary cor- Fair many poration in Volusia has existed body years, in 1931 known as but to new also created Fair. Trustees of change gives any right complain, it If such one taxpayer County, but the Volusia is not a of Volusia Inc., appropriation” Association, whose “fixed separate and has to another distinct thus been diverted *26 body. payment of complaint
In this fact, against the real appropriation” to $6,000.00 is a the Volusia which “fixed Chapter Association, to be that Inc., seems L.), 6516 C. G-. is un- (Sections Acts of L., constitutional,—particularly as to C. G. Section county S., which commissioners to R. G. authorizes moneys county fair appropriate of the associations to aid development agricultural livestock re- in the of the by publicity counties, means the several sources through is these fairs. which afforded purposes I am unable to see where we can declare supra, proper L., not out Section C. G. as those set county Legislature’s specific purposes in of -the dec- view county they purpose laration that are a valid money. county may If appropriate a commissioners of it has was doubt on this score been removed there County, 92 holding in Earle v. Fla. of this court Dade Rep. 331, court that the use of 432, 109 Sou. where the county develop agricul- and advertise the a taxation county advantages of a livestock tural, horticultural and county through county expositions proper was a fairs and purpose. powerful
Publicity perhaps the most influence which is great that over life. So is its value exists our modern spent people year a billion dollars Holding exposition to exhibit the a fair or United States. way advantage of county’s taking this one resources is “publicity” powerful publicity, and the word influence of referring law expressly used in when money authorized. appropriations of are these for which of a advantages facilities Publicity with reference enlightened community generally recognized in all is now money which tax being public purpose, for communities as legislation, by appropriate spent authorized when can be con- for it remain within expenditures made where pri- delegated to are public authorities trol of agencies. vate September,
Here the Board advantages publicity determined County through exposi- medium a fair or $6,000.00 County, and at least tion would worth pur- they budget put that much in the to be used pose. paid appropriated to be over to the Volusia
This Association, Inc., Pair consideration advantages would publicity and which the other through Pair the medium of the Volusia receive *27 holding exposition a fair or dur- Association’s activities year. going to declare the ing Unless we are that fiscal unconstitutional, 1931 statute as well as the 1917 statute* enjoin prohibit <md unconstitutional, ground there is no money paying this out express deliberately appropriated under author- they of which statute, in consideration ity evidently in- has Association, Inc., Pair County which expenses services and rendered curred successor, Association, its if not justly that' entitle appropriated funds. these to receive Brown, J., concurs. notes the name of Volusia County, payment, for the deferred and to secure same by any mortgage property, parts thereof, on all or said (g) Stats., it is in conflict with Sec. Revised General 2191, Compiled Florida, 1927, Sec. General Laws of general provides law which th^t, “No contract shall be let any for the work or on road street', building construction any erecting or bridge, any or building house, goods, supplies and that no county or purposes materials for purchased or use be when shall paid county the amount to 'be therefor $300.00 exceed unless notice thereof be advertised once a week for newspaper at least two weeks some general of upon calling circulation of the County, for bids done, the work to be goods, supplies and for or purchased by materials be requiring to in each ease shall be responsible the bid of the lowest bidder accepted unless all bids are refused because high.” same are too alleged upon It is further belief, information and the Board of Commissioners levy are about year millage levied, provided in said act be pay Trustees and that intends paid out out' of themselves the funds so collected public or to raised funds of Yolusia be provided compensation general taxation, salaries such trus- paid to themselves services as therein to by order of Court'. tees, unless restrained complainant prayed temporary injunction, for a (1) restraining Board of Trustees of the members of the or to one paying themselves Yolusia Fair from any ren- salary compensation for another, services performance rendered, dered, or to be about prescribed creating Act the said Board duties restraining the Fair, (2) Yolusia submitting “to the Board said defendants 1st County, Florida, on the of Yolusia
Notes
State notes bonds, they mortgage were, are not and if effect authorizing separable provision same, issuance of Act from the remainder eliminated primary Act, (15) affecting without provide pro- competent legislature