Board of County Com'rs of Palm Beach County v. Hibbard

• Court: Florida Supreme Court
• Writing for the Court: ROBERTS; ADKINS; ERVIN; ERVIN
• Citation: Board of County Com'rs of Palm Beach County v. Hibbard, 292 So.2d 1 (Fla. 1974)
• Decision Date: 13 March 1974
• Docket Number: No. 43989,43989
• Parties: The BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Florida, Appellant, v. Millard F. HIBBARD et al., Appellees.

Page 1

292 So.2d 1

The BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Florida, Appellant, v. Millard F. HIBBARD et al., Appellees.

No. 43989.

Supreme Court of Florida.

March 13, 1974.

Michael B. Small, County Atty., and R. William Rutter, Jr., Asst. County Atty., for appellant.

Gilbert T. Brophy, Jupiter, and Larry Klein of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellees.

ROBERTS, Justice.

This cause is before us on direct appeal from a final order of the Circuit Court of Palm Beach County, holding Chapter 72--644, Laws of Florida, unconstitutional because it violates Article III, Section 11, of the Florida Constitution, F.S.A., thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution, as amended 1973.

Appellees Hibbard, Huff and Johnson filed a complaint for declaratory judgment requesting the court to adjudicate the constitutionality of the special act enacted by the Florida Legislature in the 1972 session (HB--4261, Chapter 72--644, Laws of Florida) empowering the Sheriff of Palm Beach County to grant a pistol license or in the alternative to require the Board of County Commissioners to act under Section 790.06, Florida Statutes, F.S.A. In their complaint, appellees, Hibbard, Huff and Johnson, alleged that by virtue of this special act, Palm Beach County was exempted from general state law, that is Sections 790.05 and 790.06, Florida Statutes, F.S.A. and the Sheriff of that county was granted complete authority to issue licenses to carry pistols to qualified persons over 21 years of age and of good moral character. These appellees urged that the refusal of the Sheriff or the County Commissioners to act in the issuance of permits is arbitrary, unreasonable and discriminatory. The Board of County Commissioners of Palm Beach County, appellants herein, and the Sheriff of Palm Beach County filed separate answers. Inter alia, the Board admitted that it has refused to issue new and renewal gun permits due to the enactment of HB--4261 which the Board stated relieved it from the responsibility of issuing such permits. The Sheriff in his answer, as an affirmative defense to the allegations made in the complaint, urged that Chapter 72--644 is unconstitutional and violative of Article III, Section 11(a) (1) and (4), Florida Constitution.

Final judgment was entered by the trial court declaring Chapter 72--644, Laws of Florida, to be violative of Article III, Section 11, of the Florida Constitution. The trial court, therein, explicitly stated, as follows:

'This action has proceeded to final hearing on the basis of the stipulations recorded in the Order of February 5, 1973. The Court after examination of the Memoranda of Counsel finds:

'A. As to the First Issue: The special act in question violates Art. 3 Sec. 11 of the Florida Constitution because it pertains to the 'duties of officers'. Special acts have been upheld that only added to the duties of a constitutional officer, Cooley v. State ex rel. Aldrich, 155 Fla. 703, 21 So.2d 347 (1945) and State ex rel. Landis v. Armstrong, 103 Fla. 121, 137 So. 140 (1931) but the act in question Curtails the duties of certain constitutional officers (county commissioners) and shifts such duties to another constitutional officer (sheriff).

* * *

'Accordingly, it is

'ORDERED AND ADJUDGED as follows:

'1. Chapter 72--644, Laws of Florida 1972 is unconstitutional because it violates Art. 3, Section 11 of the Florida Constitution.

* * *

Appellant, the Board of County Commissioners of Palm Beach County, and appellees Hibbard, Huff and Johnson, on appeal to this Court, contend the trial court erred in holding that Chapter 72--644, Laws of Florida, effective October 1, 1972, which provides:

'An Act relating to Palm Beach County, weapons and firearms; exempting Palm Beach County from the provisions of Sections 790.05 and 790.06, Florida Statutes; providing that the Palm Beach County Sheriff shall issue licenses to carry pistols; deleting the requirement that such licenses are issued by the Board of County Commissioners; providing that all other provisions shall remain in full force and effect; providing a penalty; providing an effective date.

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. The provisions of this act shall be applicable only to Palm Beach County, Florida.

'Section 2. It is the intention of this act to exempt Palm Beach County from provisions of Section 790.05 and 790.06, Florida Statutes.

'Section 3. Whoever shall carry around with him or have in his manual possession in Palm Beach County, any pistol without having a license from the Sheriff of Palm Beach County, shall be guilty of a misdemeanor of the second degree, punishable as provided in §§ 775.082 or 775.083; provided that this section shall not apply to the sheriff, deputy sheriffs, city or town marshals, policemen, constables or United States marshals or their deputies as to the carrying of concealed weapons.

'Section 4. The Sheriff of Palm Beach County may grant a license to carry a pistol only to such persons as are over the age of twenty-one (21) years and of good moral character, for a period of two (2) years, upon such person giving a bond payable to the Governor of the state in the sum of One Hundred Dollars ($100.00), conditioned for use of said weapons, with surety to be approved by the County Commissioners. The Sheriff shall keep a record of the names of the persons taking out such a license, the name of the maker of the pistol licensed to be carried, and the caliber and the number of same.'

is unconstitutional as being in violation of Article III, Section 11, Florida Constitution, which provides in pertinent part:

's 11. Prohibited special laws (a) There shall be no special law or general law of local application pertaining to: (1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies.'

We agree with the trial court and find that this Special Act constitutes a prohibited special law as defined by Article III, Section 11, Florida Constitution. Since 1893 it has been the duty of the County Commissioners of the respective counties to issue such permits as are involved sub judice. ¹

Section 790.06, Florida Statutes, F.S.A., provides:

'How license procured. The county commissioners of the respective counties of this state may at any regular or special meeting grant a license to carry a pistol, winchester or other repeating rifle, only to such persons as are over the age of twenty-one years and of good moral character, for a period of two years, upon such person giving a bond payable to the governor of the state in the sum of one hundred dollars, conditioned for the proper and legitimate use of said weapons, with sureties to be approved by the county commissioners. The commissioners shall keep a record of the names of the persons taking out such a license, the name of the maker of the firearm so licensed to be carried, and the caliber and number of the same.'

Section 790.05, Florida Statutes, F.S.A., provides:

'Penalty for carrying pistol or repeating rifle without first obtaining license. Whoever shall carry around with him, or have in his manual possession, in any county in this state, any pistol, winchester rifle or other repeating rifle, without having a license from the county commissioners of the respective counties of this state, shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083; provided, this section shall not apply to sheriffs, deputy sheriffs, city or town marshals, policemen, constables* or United States marshals or their deputies as to the carrying of concealed weapons.'

Appellant argues that this Court has given the constitutional prohibition against the passing of special laws pertaining to the duties of officers a liberal interpretation allowing some change in an official's duties so long as the general purpose of the special act is a valid one. However, as appellee indicates, the entire purpose of the special act in question is the transference of duties from the County Commissioners to the Sheriff. This change is not merely incidental to some other valid main purpose of the act.

This Court in Hayek v. Lee County, 231 So.2d 214 (Fla.1970), upheld the constitutionality of a special law which created a new Court of Record for Lee County pursuant to Article V, Section 1 of the Constitution of 1885. The act designated the State Attorney of the Circuit in which Lee County is located as the prosecutor of all felonies in said court, the county prosecuting attorney as the prosecutor of all misdemeanors, the Clerk of the Circuit Court of Lee County as Clerk of said court, and the Sheriff was designated as Chief Executive. In upholding the constitutionality of the special act, this Court held that the decisions of this Court construing Section 20, Article III of the Constitution of 1885 are applicable and control in cases construing present Section 11(a)(1) of Article III of the Constitution of 1968, and that the addition of duties to these officers was merely incidental to the main purpose of the act which was to establish a Court of Record pursuant to Article V, Section 1 of the Constitution of 1885. Pertaining to the numerous cases of this Court construing the 1885 provision and as the basis of authority for upholding the act, this Court in a footnote to its decision stated:

'Among the many cases which have been decided by this Court on this point are: State ex rel. Landis v. Dickenson, 103 Fla. 907, 138 So. 376 (1932); State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928); Hancock v. Sapp, 225 So.2d 411 (Fla.1969); Hanson v. State, 56 So.2d 129 (Fla.1952); Kirkland v. Phillips, 106 So.2d 909 (Fla.1958); and State v. City of Tampa, 72 So.2d 371 (Fla.1954). In 1958, Justice Thornal, speaking for a unanimous Court, summarized the holding in...