City of Hialeah v. State Ex Rel. Ben Hur Life Ass'n

• Citation: 128 Fla. 46,174 So. 843
• Court: United States State Supreme Court of Florida
• Decision Date: 14 April 1937
• Parties: CITY OF HIALEAH et al. v. STATE ex rel. BEN HUR LIFE ASS'N.

174 So. 843

128 Fla. 46

CITY OF HIALEAH et al. v. STATE ex rel. BEN HUR LIFE ASS'N.

Florida Supreme Court

April 14, 1937

Rehearing Denied June 16, 1937.

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Mandamus by the State, on the relation of the Ben Hur Life Association, against the City of Hialeah and others. Judgment awarding a peremptory writ, and the defendants bring error.

Affirmed.

ELLIS C.J., dissenting.

On Petition for Rehearing.

COUNSEL

Martin F. Whelan, Jr., Mitchell D. Price, and Charles W. Zaring, all of Miami, for plaintiffs in error.

Casey Walton & Spain, of Miami, J. Velma Keen, of Tallahassee, and Frank O. Spain, of Miami, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

The writ of error herein was taken by the city and certain of its officers to a final judgment awarding a peremptory writ of mandamus to require the levy of taxes for paying interest coupons on bonds issued by the city under the Charter Act of the city, chapter 11516, Acts of 1925, Ex.Sess.

In addition to other allegations, the alternative writ of mandamus alleges:

'5. The said bonds were issued under authority of and in full compliance with the said chapter 11516, and they each so recite, in addition to which they each recited that:

"* * * all acts, conditions and things required to exist or be done precedent to and in the issuance of this bond by the laws and constitution of said State have duly happened and been performed; that provision has been made for the levy and collection of a direct annual tax upon all the taxable property within said City sufficient to pay the interest and principal of this bond as the same shall become due; and that the total indebtedness of said City, including this bond, does not exceed any constitutional or statutory limitation.'

'And they each also recited that:

"For the prompt payment hereof, both principal and interest as the same become due, the full faith, credit and resources of said City are hereby irrevocably pledged.'

'6. The said bonds were validated by decree of the Circuit Court of Dade County, Florida, rendered on the 14th day of October, 1926, from which no appeal has been taken, and which said decree is in full force and effect.'

The answer of respondents admits:

'That on or about September 1, 1926, the City of Hialeah by and through its then mayor and city clerk signed certain instruments purporting to be bonds or writtings obligatory, * * * said writings * * * being designated as 'City of Hialeah General Improvement Bonds'; that each of said instruments was sealed with the corporate seal of the City of Hialeah and each of said instruments bore the date of September 1, 1926, and each of said instruments was in the sum of $1000.00.

'Respondents further answering admit that in accordance with the phraseology of said bonds, the City of Hialeah acting by and through its mayor and clerk as aforesaid, acknowledge itself indebted and promised to pay to the bearer for an alleged valuable consideration the principal sum of $1,000.00 on the date therein specified together with interest thereon.'

'Respondents being without knowledge as to the allegations and statements contained in paragraph 5 of the alternative writ of mandamus, demand strict proof thereof; and further answering say that chapter 11516 of the Laws of the State of Florida enacted by the legislature of the State of Florida at its 1925 [extra] session was void ab initio and wholly unconstitutional insofar as section 46 of said acts is concerned, which said section 46 was the act under which the then officials of the City of Hialeah purported to issue said bonds.'

'Further answering paragraph 5 of said alternative writ, these respondents admit that the bonds contained paragraphs and provisions set forth and contained in the alternative writ of mandamus.'

'Respondents further answering admit that the bonds described in paragraphs 3, 4 and 5 of the alternative writ of mandamus were validated by decree of the Circuit Court of Dade County, Florida, rendered on the 14th day of October, 1926, and that no appeal has been taken from the judgment of the Circuit Court validating same, and admit that said decree is in full force and effect as to all irregularities which might occur in the proceedings save and except the constitutional questions herein and hereby raised were not presented to the court in said validation proceedings and were not acted upon or considered by the court, and were not passed upon and determined by the final decree of the Circuit Court rendered on October 14, 1936, and said decree has never become res adjudicata as to said constitutional questions.'

There were other similar allegations and admissions as to another issue of bonds.

Counsel for plaintiffs in error state in their briefs that:

'The only questions involved in the case at bar are the constitutionality of section 46 of Chapter 11516 of the Acts of 1925 [Ex. Sess.] and the validity of the bonds issued in pursuance thereof.'

It is argued that the inclusion of section 46 in chapter 11516 violates section 16 of article 3 of the Constitution, which organic section is as follows:

'Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amended, shall be re-enacted and published at length.'

It appears that in September, 1925, the city of Hialeah was incorporated by its inhabitants under sections 2935(1825) et seq., C.C.L., and in November, 1925, the Legislature enacted chapter 11516, the title and sections 46 and 66 of said chapter being as follows:

'An Act to Abolish the Present Municipal Government of the City of Hialeah, Dade County, Florida, and to Abolish the Municipal Government of the Town of Hialeah, Dade County, Florida, and to Create, Establish and Organize a Municipality to be Known and Designated as the City of Hialeah, and to Define Its Territorial Boundaries, and to Provide for Its Government, Jurisdiction, Powers, Franchises and Privileges, and to Authorize the Issuance of Municipal Bonds and for Other Purposes.'

'Sec. 46. Within one year after this Act takes effect, the City Council is hereby authorized to provide by ordinance for the issuance of bonds in an amount not to exceed One Million Dollars, of such denominations, bearing such rates of interest not exceeding 6 per cent, becoming due at such times not exceeding thirty years from the date of issuance, and upon such conditions as may be prescribed by ordinance. Said bonds shall not be sold for less than ninety per cent and accrued interest and the proceeds from the sale of said bonds may be used for any municipal purpose.'

'Sec. 66. Bonds issued hereunder shall have all the qualities of negotiable paper under the law merchant and shall not be invalid for any irregularity or defect in the proceedings for the issue and sale thereof, and shall be incontestable in the hands of bona fide purchasers or holders thereof for value.'

When the above statute was enacted, the Constitution contained the following sections:

'The Legislature shall establish a uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws are provided by the legislature that may be inconsistent therewith.' Section 24, art. 3.

'The Legislature shall have power to establish, and to abolish, municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. When any municipality shall be abolished, provision shall be made for the protection of its creditors.' Section 8, art. 8.

In Sparks v. Ewing, 120 Fla. 520, text 542, 543, 163 So. 112, text 121, it was held that: 'section 46 of the City Charter Act (chapter 11516 of the Acts of 1925, Ex. Sess.) gave the city of Hialeah power to issue bonds without an election.' And that: 'the city had the power, under section 46 of its charter, to 'provide by ordinance' for the issuance of these bonds without an election, as they were issued within the time and amount prescribed by that section.'

It is now contended that section 46 of chapter 11516 is invalid because it violates section 16, article 3, of the Constitution in that:

The title of the 'Act contained no recital that the City Council was being vested with power to issue bonds without a vote of the qualified electors';

The title is not 'sufficient to put the legislature of the State of Florida and the citizens of the municipality abolished and of the territory sought to be re-incorporated upon notice that unusual radical and confiscatory power was being vested in the City Council of said newly created city, and that property owners residing in said city were being deprived of a valuable right, to-wit, the right to vote upon the issuance of municipal bonds';

'The title to the act' is 'insufficient to put the legislature and the voters of the City created by said act on notice that unusual, arbitrary and confiscatory powers were being vested in the city council and the free holders of said City were being deprived, without their knowledge, of a well established right, to-wit, the right to vote on the issuance of interest bearing municipal bonds.'

The first two commands of section 16 of article 3 of the Florida Constitution are: (1) Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith. (2) Such subject shall be briefly expressed in the title. The intent and effect of the organic commands are to forbid the inclusion of more...