Board of Com'rs of Escambia County v. Board of Pilot Com'rs of Port of Pensacola

• Citation: 42 So. 697,52 Fla. 197
• Court: United States State Supreme Court of Florida
• Decision Date: 18 December 1906
• Parties: BOARD OF COM'RS OF ESCAMBIA COUNTY v. BOARD OF PILOT COM'RS OF PORT OF PENSACOLA.

42 So. 697

52 Fla. 197

BOARD OF COM'RS OF ESCAMBIA COUNTY v. BOARD OF PILOT COM'RS OF PORT OF PENSACOLA.

Florida Supreme Court, Division A.

December 18, 1906

Error to Circuit Court, Escambia County; Francis B. Carter, Judge.

Mandamus on the application of the board of pilot commissioners of the port of Pensacola against the board of county commissioners of Escambia county. From a judgment in favor of plaintiff defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The Legislature cannot authorize the payment for other than county purposes of money derived from taxes assessed and imposed by a county, since such authority would be in conflict with the manifest purpose and intention of the constitutional provision that 'the Legislature shall authorize the several counties * * * in the state to assess and impose taxes for county * * * purposes, and for no other purposes.'

It is the duty of the courts to construe legislative acts with reference to the Constitution, and, if the Constitution is clearly violated by a provision of a statute, such provision should be declared inoperative; but if the provision is not clearly in conflict with the Constitution, or if there is a well-founded or reasonable doubt as to the constitutionality of the provision, the legislative will as expressed therein should be sustained.

Whether an expenditure demanded to be made from the funds derived by a county from taxes assessed and imposed by it by virtue of legislation under the Constitution is or is not for a county purpose is to be determined by the courts from the facts and circumstances of each particular case; but, when an expenditure is authorized by the Legislature as being a county purpose, the courts will not interfere, except in cases free from all reasonable doubt.

Where a county purpose has been designated by a statute which directs that expenses incurred by certain officers for the protection of ports, harbors, bays, and rivers within the county shall be audited and paid by the county commissioners as other charges against the county are audited and paid, such designation of a county purpose will, in deference to the legislative department, be recognized and enforced by the courts, unless it clearly appears that it is not a county purpose within the meaning of the Constitution.

If the payment demanded of a county is for a county purpose, the particular officers engaged and methods used under a statute in incurring the expenditure do not affect its character as a county purpose.

A river, harbor, or bay of a port is a public highway, useful to the people of the county in which it is situated for the purposes of navigation and commerce. The depth of the water therein is one of the chief elements of its value, and its protection from injury by being filled in is within the purposes for which county governments are established, even though the river, harbor, or bay be also and largely used for passage to and from, and for commerce with, points beyond the county.

It is competent for the state, acting through the counties, to protect the ports, harbors, bays, and rivers herein, if the control of the general government within its sphere is not thereby interfered with.

Under the Constitution the powers and duties of the county commissioners are prescribed by statute, and the statute does not give them exclusive police or other supervision over the ports or harbors of the state. The Legislature may provide for the exercise of such powers within a county by officials other than the county commissioners.

Section 950 of the Revised Statutes of 1892 (section 1302 of the General Statutes of 1906), which requires the board of pilot commissioners of each port to take such steps as are necessary to detect any violation within their jurisdiction of the laws for the protection of ports, harbors, bays, and rivers, and requires the county commissioners to audit and pay the expenses so incurred by the board of pilot commissioners as other charges against the county are audited and paid, is a valid enactment for the purposes therein stated.

The Constitution does not require that the Legislature shall impose a limitation upon expenditures incurred for county purposes, and in the absence of such a limitation the Legislature has plenary power within proper county purposes.

Under section 950 of the Revised Statutes of 1892 (section 1302 of the General Statutes of 1906), the necessity for incurring expenses in detecting any violation of the law for the protection of ports, harbors, bays, and rivers is to be determined by the board of pilot commissioners, and no duty with reference thereto is imposed upon the county commissioners, except that of auditing and paying for such expenses.

The fact that the greater part of a port or harbor is within the corporate limits of a city, and is under the protection of the police department of the city, does not relieve the county of its powers and duties with reference to the protection of the port or bay or harbor within its territory.

Even if a harbor lies within the corporate limits of more than one county, and is under the police protection of both counties the state is not thereby precluded from providing for the protection of the portion of the harbor in one of such counties at the expense of the county.

When an expenditure by a county is authorized by a valid law, and the correctness of the amount due by the county is ascertained and approved as the law directs, there being no question as to bona fides, it is the duty of the county commissioners to audit, approve and pay the same, and such payment may be enforced by mandamus.

COUNSEL

R. Pope Rees, for plaintiff in error.

Blount & Blount, for defendant in error. On February 3, 1906, an alternative writ of mandamus was issued, as follows:

'In Escambia County Circuit Court, State of Florida.

'The Board of Pilot Commissioners v. The Board of County Commissioners of Escambia County, Florida.

'To A. M. Avery, W. J. Sennott, J. M. Andrews, J. A. Wiggins, and J. R. Steward, as County Commissioners of Escambia County Florida, and to the Board of County Commissioners of Escambia County, Florida:

'Whereas, the board of pilot commissioners of and for the port of Pensacola, Florida, have made it appear to this court that because it has from time to time been informed that the harbor of Pensacola is being shoaled and destroyed by the deposition therein by steamships, vessels, and individuals of ashes and ballast and other materials, said board, by virtue of authority in them vested and in accordance with the provisions of section 950 of the Revised Statutes of Florida, on the 5th day of February, A. D. 1906, employed one Walter Everett as harbor policeman, to detect any and all violations in the port of Pensacola and the waters thereof of section 936 of the Revised Statutes of Florida; said employment of the said Everett dating from February 5 to February 12, 1906, at a salary of $2.50 per day;

'And that the said Everitt has entered upon the performance of his duties as harbor policeman aforesaid, and had performed said duties from the 5th day of February, 1906, until and including the 12th day of February, 1906, and had rendered a bill to said board of pilot commissioners for said services for the sum of $17.50, which said bill is hereto attached, marked 'Exhibit A,' and made a part hereof;

'And the said board of pilot commissioners had thereupon approved said bill, and did, on the 12th day of February, 1906, through their secretary, R. M. Cary, transmit said bill, with the approval of their president, I. H. Aiken, indorsed thereon, to said board of county commissioners of Escambia county, Florida, and request them to audit and pay the same, in accordance with the provisions of section 950 of the Revised Statutes of Florida, as appears by letter from said R. M. Cary, secretary as aforesaid, which is hereto attached, marked 'Exhibit B,' and made a part hereof;

'And that you, the said county commissioners, did, on the 14th day of February, 1906, at a meeting of your said board, duly and legally called and held, decline and refuse to audit and pay the said bill:

'Now, therefore, this is to command you that you be and appear before this court, at Marianna, Florida, on the 7th day of March, A. D. 1906, and show cause, if any you have, why a peremptory writ of mandamus should not issue against you, requiring you to audit and pay the said bill.

'Witness my hand and the seal of this court this 26th day of February, A. D. 1906.

'Francis B. Carter.'

Exhibit A.

'Pensacola, Fla., Feby. 12th, 1906.

'Board of Pilot Commissioners, Pensacola, Fla., to Walter Everitt, Dr.

For services as harbor police from Feb'y 5th to Feb'y 12th, 1906,

Seven days @ $2.50 $17 50

'Approved: I. H. Aiken, President.'

Exhibit B.

'Pensacola, Fla., Feb'y 12th, 1906.

'County Commissioners of Escambia County, Florida, c/o Mr. A. M. McMillan, City.

'Dear Sirs: Enclosed please find bill of Walter Everitt for $17.50 for services as harbor police, approved by the president of the board of pilot commissioners, which please audit and pay.

'Yours very truly,

R. M. Cary,

'Sec'ty Board of Pilot Commissioners.'

'Pensacola, Fla., Feb'y 14th, 1906.

'Mr. R. M. Cary, Pensacola, Fla.

'Dear Sir: I return herewith the enclosed bill of Walter Everitt against the board of pilot commissioners, same having been presented to the board of county commissioners and payment declined on the grounds that it is not a claim against this county.

'Yours very truly, A. M. McMillan,

'Clerk Board County Commissioners.'

On March 5, 1906, the following demurrer was filed:

'Respondents A. M. Avery, W. J. Sennott, J. M. Andrews, J. A....