102 So. 739 (Fla. 1924), State v. Greer

Citation:102 So. 739, 88 Fla. 249
Opinion Judge:WHITFIELD, P.J. WHITFIELD, P.J.
Party Name:STATE ex rel. NUVEEN v. GREER et al.
Attorney:[88 Fla. 252] Wm. W. Flournoy, of De Funiah Springs, for relator. [88 Fla. 253] J. Baxter Campbell and W. W. Wright, both of Quincy, and Myers & Myers, of Tallahassee, for respondents.
Judge Panel:ELLIS, J., not participating.
Case Date:October 09, 1924
Court:Supreme Court of Florida
 
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Page 739

102 So. 739 (Fla. 1924)

88 Fla. 249

STATE ex rel. NUVEEN

v.

GREER et al.

Florida Supreme Court, Division B.

October 9, 1924

Rehearing Denied Dec. 20, 1924.

Original proceeding in mandamus by the State, on the relation of John Nuveen, against W. B. Greer and others, members of and constituting the City Council of the City of Quincy, and others.

Motion to quash alternative writ granted.

On Rehearing.

Syllabus by the Court

SYLLABUS

Relator must have clear legal title to performance of particular duty, and be without adequate remedy to secure performance. The writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy; therefore, two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must appear that the relator has a clear legal right to the performance of the particular duty by the respondent; and second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce.

Mandamus will not lie to compel tax levy for payment of illegally issued bonds duly enjoined by judicial decree; holders of bonds issued under unconstitutional statute may recover amount paid at law. A peremptory writ of mandamus will not be issued to compel a tax levy, and the payment of bonds that were illegally issued by a municipality and their payment has been duly enjoined by judicial decree, but the holder of the bonds may recover judgment in an action at law, on appropriate common counts, for the money paid for the bonds with appropriate interest, where the issue of the bonds or the borrowing of the money was not expressly forbidden by law, and the purpose for which the money was used is not immoral or contrary to public policy, and the money has been received and used in good faith by the municipality for a useful public purpose, pursuant to express statutory authority, though such statute was subsequently judicially declared to be contrary to implied limitations of organic law. A case of original jurisdiction.

Statute judicially declared unconstitutional rendered inoperative ab initio. Where, in adjudicating litigated rights under a statute, it appears beyond all reasonable doubt that the statute is in conflict with some express or implied provision of the Constitution, it is then within the power and duty of the court, in order to give effect to the controlling law, to adjudicate the existence of the conflict between the statute and the organic law, whereupon, the Constitution, by its own superior force and authority, eliminates the statute or the portion thereof that conflicts with organic law, and renders it inoperative ab initio, so that the Constitution and not the statute will be applied by the court in determining the litigated rights.

Can be declared constitutional or unconstitutional only by courts. The courts alone are by the organic law empowered to authoritatively declare or to adjudge a statute to be in accord with or in conflict with the Constitution, so that the statute, if valid, stands, or if contrary to organic law, will by the operation of the Constitution be rendered invalid from its enactment.

Does not become law if unconstitutional. If a legislative enactment conflicts with an existing provision of the Constitution, such enactment does not become a law.

Intent of Constitution may be shown by implications as well as by express provisions. The intent of a Constitution may be shown by the implications as well as by the words of express provisions.

Bonds issued under statute subsequently declared unconstitutional are void. Where a legislative enactment authorizing a municipality to issue bonds has never been adjudged to be constitutional, and it is judicially declared to be in conflict with organic law, the Constitution by its dominant force renders the enactment inoperative ab initio, and bonds issued thereunder are void because issued without authority of law.

Bonds issued under unconstitutional statute void. Where a statute is unconstitutional and has never been adjudged to be valid, bonds issued thereunder are void, and a purchaser acquires no lawful property rights therein, as bonds that are secured by the Constitution.

Courts not empowered to hold statute, not previously held constitutional, valid as to past transactions but invalid as to the future. Rules of decision applied in the federal courts do not empower a state court to hold a statute, which has never been held to be constitutional, but is adjudged to conflict with organic law, to be valid as to past transctions but invalid as to the future, so as to render valid bonds previously issued under the invalid statute to bona fide holders for value. The state courts have no such power under the Constitution, and it cannot be assumed.

Doctrine of estoppel obtains in Florida where facts justify it; principle of estoppel does not confer authority to issue bonds, though it may preclude denial that authority conferred was exercised. The doctrine of estoppel is a part of the common law that is in force in this state, and it should be appropriately applied when the facts in a litigated case justify it. But the principle of estoppel does not operate to confer authority, though it may under some circumstances be invoked to preclude a denial that authority conferred was duly exercised.

Rule as to estoppel with reference to bonds stated. While a municipality may be estopped to deny that the authority to issue bonds given by a valid statute was not properly exercised, in issuing bonds to bona fide holders for full value ( County of Jefferson v. B. C. Lewis & Sons, 20 Fla. 980), yet a municipality will not be estopped from denying the validity of a statute under which bonds were issued even to bona fide holders.

Not estopped to deny validity of bonds issued under unconstitutional statute. A municipality can exercise only such powers as are conferred by law, and where a legislative enactment purports to confer upon a municipality authority to issue bonds, and such authority is in conflict with express or implied provisions of the Constitution, the enactment confers no authority, and bonds issued thereunder are void even in the hands of bona fide holders, and the municipality is not estopped to deny the validity of the bonds.

Implied provisions as effective as express provisions. That which is implied in a Constitution is as much a part of it, and is as effective, as that which is expressed; and grades or degrees of implication, if there be any, do not affect the operation of the Constitution to nullify statutes that are duly adjudged to be in conflict with the Constitution.

All persons chargeable with notice as to effect of decree declaring statute unconstitutional. All persons are held to notice that all statutes are subject to all express and implied applicable provisions of the Constitution, and also, that should be a conflict between a statute and any express or implied provision of the Constitution be duly adjudged, the Constitution by its own superior force and authority would render the statute invalid from its enactment, and further, that the courts have no power to control the effect of the Constitution in nullifying a statute that is adjudged to be in conflict with any of the express or implied provisions of the Constitution.

Rights acquired under statute not adjudicated constitutional, subject to subsequent adjudication that statute is unconstitutional. Rights acquired under a statute that has not been adjudicated to be constitutional are subject to a subsequent adjudication that the statute is unconstitutional, even though the statute had been generally considered valid.

Rights valid where acquired under statute previously adjudged constitutional. Rights acquired under a statute while it is duly adjudged to be constitutional are valid, legal rights that are protected by the Constitution, not by judicial decision. But rights acquired under a statute that has not been adjudged valid are subject to be lost if the statute is adjudged invalid, though the statute was considered valid by eminent attorneys, public officers, and others.

COUNSEL

Page 741

[88 Fla. 252] Wm. W. Flournoy, of De Funiah Springs, for relator.

[88 Fla. 253] J. Baxter Campbell and W. W. Wright, both of Quincy, and Myers & Myers, of Tallahassee, for respondents.

OPINION

WHITFIELD, P.J.

In mandamus proceedings brought in this court it is sought to require designated municipal officers of the town of Quincy to levy a tax to pay interest on, and ultimately to pay the principal of $10,000 of bonds issued in 1909 by the town of Quincy under express statutory authority to issue such bonds 'for the purpose of erecting school houses and maintaining a system of public education in said municipality.' Section 22, c. 5844, Acts of 1907. See Validation Act, c. 6095, Acts of 1909.

On motion to quash the alternative writ it is in effect urged that it appears thereby that the bonds have been judicially held to be invalid and their payment enjoined, and that the allegations of the writ make it appear that the relator has no legal right to require, or the respondents no legal duty to perform, the official acts commanded by the writ.

The writ of mandamus does not supersede legal remedies, but rather, supplies the want of a legal remedy, therefore two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of...

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