Board of County Com'rs of Dade County v. Wilson, 80-463
| Decision Date | 15 April 1980 |
| Docket Number | No. 80-463,80-463 |
| Citation | 382 So.2d 431 |
| Parties | BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Appellant, v. Harry L. WILSON, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Ginsburg, County Atty., for appellant.
Dennis M. O'Connor, Peters, Short, Maxey & Morgan and Gene Short, Coral Gables, for appellee.
Before HENDRY, NESBITT and BASKIN, JJ.
Harry L. Wilson petitioned the Board of County Commissioners of Dade County to approve, as to form, an initiative petition to establish the county's millage for the fiscal year 1980-81. Approval of form was necessary before an attempt could be made to gather the requisite number of signatures of electors on the petition needed to activate the provisions of Section 7.01(4) of the Home Rule Charter which required the Board to either adopt the ordinance pursuant to subsection (a) thereof or submit it to the voters via a referendum pursuant to subsection (b). The Board disapproved the petition, as to form, on the ground that the proposed ordinance violated the Florida Constitution. Wilson then applied to the circuit court and obtained an alternative writ of mandamus. The Board contended before the circuit court that the proposed ordinance was unconstitutional. After considering the Board's return and arguments, the trial court found that the alleged illegality of the proposal was not so clear on its face as to deny relief. Thereafter, it awarded Wilson a peremptory writ of mandamus to coerce the Board's approval of the petition as to form. The Board appeals from that judgment.
This is the second occasion on which this court has been presented with the question of whether the voters of Dade County may establish, by ordinance, the millage for county operating purposes. Last year, this court, in Wilson v. Dade County, 369 So.2d 1002 (Fla.3d DCA 1979), held that absent a challenge upon constitutional grounds it would not interfere in the election process concerning a proposal which was valid on its face. In the present case, the Board argues that the writ of mandamus was improvidently issued because the initiative petition collides with the Florida Constitution.
Our inquiry is to determine the constitutional infirmity, if any, of the proposed ordinance. Article VII, Section 1(a) of the Florida Constitution provides: "(n)o tax shall be levied except in pursuance of law." Section 7.01(6)(a) of the Home Rule Charter expressly authorizes electors to utilize an initiative petition and subsequent referendum to adopt an ordinance reducing or eliminating revenue. The Board contends that this section contravenes general state statutes which prescribe the manner and means for the adoption of the county budget. The Board correctly indicates that where the Constitution prescribes the manner and means of performing an act, the manner prescribed is exclusive and therefore performing the act in a substantially different manner is forbidden. Weinberger v. Board of Public Instruction of St. Johns County, 93 Fla. 470, 112 So. 253 (1927). The flaw in the argument is that the Constitution does not provide the manner and means for the levy of ad valorem taxes. Under Article VII, Section 1(a), that function has been allocated primarily to the Legislature. The...
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Board of County Com'rs of Dade County v. Wilson
...as a persistent one, certified its decision to us as passing upon a question of great public importance. Board of County Commissioners v. Wilson, 382 So.2d 431 (Fla.3d DCA 1980). We have jurisdiction. Art. V, § 3(b)(4) Fla.Const. The question certified by the district court is as follows: W......
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Board of County Commissioners of Dade County v. Wilson
...Jr., Coral Gables, for appellee. Before HENDRY, NESBITT and BASKIN, JJ. ORDER ON MANDATE PER CURIAM. WHEREAS, the judgment of this court, 382 So.2d 431, was entered on April 15, 1980 affirming the order of the Circuit Court of Dade County, Florida in the above styled cause; WHEREAS, on revi......