Board of County Com'rs of Dade County v. Wilson

• Decision Date: 25 July 1980
• Docket Number: No. 59115,59115
• Citation: 386 So.2d 556
• Parties: BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Petitioner, v. Harry L. WILSON, Respondent.
• Court: Florida Supreme Court

Page 556

386 So.2d 556

BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Petitioner, v. Harry L. WILSON, Respondent.

No. 59115.

Supreme Court of Florida.

July 25, 1980.

Robert A. Ginsburg, Dade County Atty., Miami, for petitioner.

Dennis M. O'Connor, Coral Gables, and Eugene M. Short, Jr., of Peters, Short, Maxey & Morgan, Coral Gables, for respondent.

SUNDBERG, Chief Justice.

Section 7.01 of the Dade County Home Rule Charter provides that any county elector may seek the passage of an ordinance by means of initiative and referendum. An elector attempting to invoke the charter provision must submit his proposed ordinance to the Board of County Commissioners (the Board) in the form of a petition. Approval by the Board of the petition's form is a prerequisite to the circulation of the petition for a specified number of signatures. If sufficient signatures are obtained, the Board must either adopt the petition or submit the matter to the electorate for a referendum.

Pursuant to the dictates of this charter provision, Harry L. Wilson requested that the Board "approve as to form" his initiative petition designed to set county millage for the 1980-81 fiscal year at four mills. ¹ The Board disapproved the form of Mr. Wilson's petition, finding that the ordinance proposed in the petition was violative of the Florida Constitution. ² Mr. Wilson applied to the circuit court for a writ of mandamus and, finding that the proposed ordinance was not facially unconstitutional, the court issued the writ. Pursuant to this judicial action, which has not been stayed, the petition has been circulated, the requisite number of signatures obtained and a referendum election scheduled for September 9, 1980.

On appeal, the District Court of Appeal, Third District, determined that the proposed ordinance was not unconstitutional on its face and affirmed the trial court but, recognizing the issue 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. (1980).

The question certified by the district court is as follows:

Whether the courts may pass upon the validity of an ordinance, fixing the millage rate of the county's operating budget, prior to its adoption by the voters through the initiative and referendum process.

Mr. Wilson argues that this issue was raised in Wilson v. Dade County (Wilson I), 369 So.2d 1002 (Fla.3d DCA 1979), cert. denied, 373 So.2d 457 (Fla.1979), wherein the validity of a similar proposed ordinance was challenged by the Board. The district court's decision in Wilson I, Mr. Wilson asserts, is dispositive of the present proceeding. We disagree. Courts may consider the constitutional validity of proposed ordinances. ³ While recognizing this authority, the district court specifically stated that only the statutory validity of the ordinance was at issue. Courts may not rule upon the validity of a proposed ordinance challenged solely on nonconstitutional grounds. Since the Board is here challenging the constitutionality of Wilson's proposed ordinance, we have the authority to inquire further into the validity of the ordinance.

In the present proceeding, the district court concluded that article VII, section 1(a), Florida Constitution, does not pose a constitutional impediment to a proposed ordinance designed to establish the millage rate for county taxation. We agree that the constitutional provision does not, in itself, prescribe the method and means by which taxes are to be imposed. ⁴ As a consequence, where there is no legislative directive relating to a specific method or means of taxation, that procedure may be controlled by ordinance.

We find it unnecessary to decide whether an ordinance which is in direct conflict with a legislatively prescribed method of taxation would violate article VII, section 1(a). Rather, we turn our attention to the requirements of article VIII, section 6 of the 1968 Constitution relating to Dade County home rule. Article VIII, section 11 of the Constitution of 1885 authorized the creation of a metropolitan government for Dade County and granted to the electors of that county the power to adopt a home rule charter. Pursuant to this authority, the voters of Dade County adopted a home rule charter for the metropolitan government of the county. Article VIII, section 6(e) of the 1968 Constitution provides that article VIII, section 11 of the 1885 Constitution is to remain in full force and effect, and that:

All provisions of the Metropolitan Dade County Home Rule Charter, heretofore or hereafter adopted by the electors of Dade County pursuant to Article VIII, Section 11, of the Constitution of 1885, as amended, shall be valid, and any amendments to such charter shall be valid; provided that the said provisions of such charter and the said amendments thereto are authorized under said Article VIII, Section 11, of the Constitution of 1885, as amended.

(Emphasis supplied, footnotes omitted.) Hence the authorizing amendment of the former constitution has been incorporated by reference into the 1968 Constitution. The Dade County Charter has been given constitutional approval, but only to the extent that it is consistent with the former article VIII, section 11 (now in article VIII, section 6). If any provision of the Dade County Charter, or any action taken pursuant to the Charter, contravenes the limitations or prescriptions of article VIII, section 6 of the 1968 Constitution, it is necessarily unconstitutional and void. See State ex rel. Dade County v. Nuzum, 372 So.2d 441 (Fla.1979); Gray v. Golden, 89 So.2d 785 (Fla.1956).

The focus thus narrows to whether the proposed ordinance is authorized by the enabling constitutional language. ⁵ Article VIII, section 11(1)(b) of the 1885 Constitution states that the charter "(m)ay grant full power and authority to the Board of County Commissioners of Dade County . . . to levy and collect such taxes as may be authorized by general law and no other taxes . . . ." The authority granted under the enabling section is circumscribed by subsections (5) and (6) of section 11:

(5) (T)he home rule charter provided for herein shall not conflict with any provision of this Constitution nor of any applicable general laws now applying to Dade County and any other one or more counties of the State of Florida except as expressly authorized in this section nor shall any ordinance enacted in pursuance to said home rule charter conflict with this Constitution or any such applicable general law except as expressly authorized herein . . . .

(6) Nothing in this section shall be construed to limit or restrict the power of the Legislature to enact general laws which shall relate to Dade County and any other one or more counties of the state of Florida or to any municipality in Dade County and any other one or more municipalities of the State of Florida relating to county or municipal affairs and all such general laws shall apply to Dade County and to all municipalities therein to the same extent as if this section had not been adopted and such general laws shall supersede any part or portion of the home rule charter provided for herein in conflict therewith and shall supersede any provision of any ordinance enacted pursuant to said charter and in conflict therewith, and shall supersede any provision of any charter of any municipality in Dade County in conflict therewith.

Moreover, in subsection (9) of section 11 it is declared to be the intent of the legislature and the electors of Florida that

the provisions of this Constitution and general laws which shall relate to Dade County . . . shall be the supreme law in Dade County, Florida, except as expressly provided herein and this section shall be strictly construed to maintain such supremacy of this Constitution and of the Legislature in the enactment of general laws pursuant to this Constitution.

Clearly then, the provisions of the Home Rule Charter and the ordinances adopted pursuant thereto must be in accordance with general law unless there is express constitutional authorization otherwise.

Despite the above-quoted constitutional provisions, Mr. Wilson contends that this Court's decision in Dade County v. Young Democratic Club, 104 So.2d 636 (Fla.1958), requires that we find the present ordinance to be valid. In Young Democratic Club, however, this Court found that, even though in conflict with general election laws, Dade County charter provisions dealing with the method of electing county commissioners were specifically authorized by the Constitution. ⁶ Therefore, the charter provisions were constitutionally valid. There is, however, no similar constitutional authorization for the citizens or governing body of Dade County to devise its own method for levying taxes or establishing millage rates. As a consequence, the proposed ordinance at issue here will withstand constitutional scrutiny only if it does not conflict with general law. See Buckress Land Co. v. Metropolitan Dade County, 232 So.2d 384 (Fla.1970); Gray v. Golden, supra.

Applying the preceding analysis, we conclude that the proposed ordinance is unconstitutional. An ordinance will be declared unconstitutional because in conflict with general law if the ordinance and the legislative provision cannot coexist. State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969). Petitioner cites as conflicting a number of legislative provisions ⁷ which delineate the manner in which a county commission is to determine the appropriate millage rate for ad valorem taxation purposes. In particular, section 200.191(1)(a)-(c) authorizes three categories of countywide millage rates:

200.191 Millages; definitions.

(1) County millages shall be composed of three categories of countywide millage rates, as follows:

(a) General county millage, which shall be that nonvoted millage rate...