City of Long Beach Resort v. Collins
| Decision Date | 29 March 1972 |
| Docket Number | 40207,Nos. 40202,s. 40202 |
| Citation | 261 So.2d 498 |
| Parties | CITY OF LONG BEACH RESORT, Florida, etc., et al., Appellants, v. Bruce COLLINS et al., Appellees. Milton C. BUCKLEY, Appellant, v. Bruce COLLINS et al., Appellees. |
| Court | Florida Supreme Court |
William L. Durden, of Kent, Durden & Kent, Jacksonville, for appellant Milton C. Buckley.
Charles S. Isler, Jr., and Larry G. Smith of Isler, Welch, Bryant, Smith, Higby & Brown, Panama City, for intervenors-appellants, City of Long Beach Resort and Long Beach Resort, Inc.
Benjamin W. Redding, and Les W. Burke, of Barron & Redding, Panama City, for appellees.
This is a direct appeal from the 14th Judicial Circuit Court which inherently passed upon the constitutionality of a state statute by its order of dismissal for failure to state a cause of action; we accordingly have jurisdiction under Fla.Const. art. V, § 4, F.S.A. and Evans v. Carroll, 104 So.2d 375 (Fla.1958); Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959); and Milliken v. State, 131 So.2d 889 (Fla.1961).
The statute in question is House Bill No. 5288, which was passed by the Legislature in 1970. It provides for merging the several cities along the western Gulf resort area of Panama City, Florida. .) Among the grounds recited for unconstitutionality of the act are that it constitutes:
(a) A denial of equal protection under the Federal and State Constitutions in not allowing residents within these municipalities to vote on the proposed merger or consolidation, whereas the residents of the surrounding unincorporated areas were permitted to vote on the issue (it passed by such vote of only the unincorporated area residents).
(b) A deprivation of property rights without due process under both constitutions.
(c) Denial of franchise or referendum to the residents in the city.
(d) An unconstitutional delegation of power to the new municipality sought to be created.
(e) It constitutes class legislation favoring the residents of unincorporated areas over those dwelling within the city limits.
Intervenor-petitioner City of Long Beach Resort, Florida, a municipality, urges additionally that:
(a) Intervenor City which holds a franchise for the sale and distribution of water within its city and also to existing Panama City Beach, has issued water revenue bonds which have an outstanding balance plus accrued interest; and that to abolish Intervenor City and said City of Panama City Beach would jeopardize said bonds and properties in that no provision is made by the new act for the protection of the bond holders.
(b) Intervenor would be deprived of its property without due process of law contrary to the U.S. and Florida Constitutions.
(c) That the act's provision for payment of debts from revenues collected ONLY within respective former municipalities would deny intervenor city-water supplier that portion of its income from water distribution into Panama City Beach and thus lose income therefrom to pay said bonds.
Petitioners brought proceedings both in quo warranto and for declaratory decree as to said House Bill No. 5288. The entire complaints in both causes were dismissed by the trial judge.
During appellate proceedings there has been a tender as reflected by motions filed before this Court to pay the Long Beach Resort bonds in full with interest pursuant to a call of said bonds by the City of Panama City Beach, in accordance with their terms. The tender has been refused on the ground that 'information regarding the source of funds used to make the tender of payment of bonds' has not been furnished and that appellees 'refuse to allow a certified public accountant employed by appellant access to the books and records of the City of Panama City Beach pertaining to the Long Beach Resort Water System, thereby preventing evaluation that the tender of funds for payment of the bonds was made from 'net revenues derived from the operation of the water system of the City of Long Beach Resort', as required by bond provisions.'
Such a call of the bonds and tender, supported by affidavit before this court, render moot the above additional questions raised by intervenor. Accordingly, the motion to dismiss intervenor's appeal is granted and is remanded to the trial court for disposition as may be indicated solely on the two objections raised regarding, (1) the providing of information as to the source of funds for tender of payment, and (2) access to the records of the old City of Panama City Beach, so as to afford evaluation, if necessary, that the tender meets requirements of the bond issue.
We revert now to the basic question here regarding the constitutionality of House Bill No. 5288, particularly in regard to the denial of the vote to city residents while granting it to adjoining unincorporated area residents in voting on the consolidation of the several municipalities along the famous 'Miracle Strip' and its adjoining areas West of the resort City of Panama City, Florida.
The Legislature, by various special acts, created the Town of Edgewater Gulf Beach (1953), the City of West Panama City Beach (1967), the City of Long Beach Resort (1953) and the City of Panama City Beach (1953), all located along the glittering white sand beaches west of Panama City, Florida. Then, in 1970, the Legislature passed a sequence of bills which would have the effect of consolidating the four municipalities, together with five adjoining unincorporated areas, into a single governmental entity.
The first five of these special acts 1 designated unincorporated areas contiguous to the several existing municipalities and granted the residents of each of these unincorporated areas the right of referendum to determine whether or not they would be joined with the consolidated, new City of Panama City Beach created by the final one of this series of Acts, House Bill 5288 (Ch. 70--874). None of the residents and citizens of the former municipalities was granted the right of referendum on the issue of consolidation ('merger').
This was the prerogative of the Legislature which has life and death powers over municipalities which are created, modified and can be abolished by the Legislature. Saunders v. City of Jacksonville 157 Fla. 240, 25 So.2d 648 (Fla.1946); State ex rel. Landis v. Town of Lake Placid, 117 Fla. 874, 158 So. 497 (1935); State v. Town of Boynton Beach, 140 Fla. 327, 156 So. 539 (1934); Smith v. Treadwell, 161 So.2d 49 (1st DCA Fla.1964).
There is no doubt of the Legislature's power to annex territory to an existing municipality. MacGuyer v. City of Tampa, 89 Fla. 138, 103 So. 418 (1925).
Town of San Mateo City v. State, 117 Fla. 546, 158 So. 112 (1935), upheld a statute which submitted a referendum vote to freeholders only. The Legislature may make its acts effective upon the happening of a contingency, which includes the approval of the affected citizens or a class of the affected citizens. San Mateo, supra, and State ex rel. Cheyney v. Sammons, 62 Fla. 303, 57 So. 196 (1911).
No constitutional infirmity having been demonstrated, the trial court's orders dismissing the amended petitions, and the final judgments entered for appellees, are accordingly.
Affirmed.
The cause is remanded as set forth earlier in this opinion, however, solely on Intervenor's challenge on the bonds, for disposition by the trial court on (1) the providing of information to Intervenor by appellees as to the source of funds for tender of payment and (2) access to records of the original City of Panama City Beach to afford evaluation that the tender of payment of the bonds meets bond issue requirements.
It is so ordered.
The Legislature does, of course, create, modify and abolish municipalities, under the authorities set forth in the majority opinion. There are limitations, however; such power is not plenary and is subject, like all laws, to constitutional limitations and restrictions which these statutes affecting municipalities cannot abridge. City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); State v. City of Miami Beach, 245 So.2d 863 (Fla.1971), now require a vote extended to a municipality to be offered to the general electorate instead of being limited to freeholders only. This of course overrules the holding to the contrary in Town of San Mateo City v. State, 117 Fla. 546, 158 So. 112 (1935).
It may be that the Legislature may continue to provide for modification and creation of cities in the same arbitrary manner now allowed by the authorities, but it is my view that IF the Legislature provides for referendum, then such referendum must meet constitutional standards in being extended to all affected citizens alike and not to an unreasonable classification and to deny that right of franchise to other affected citizens. This is what was done in this case where the vote was granted to those being brought into the cities and living in the unincorporated areas (a limited number) and denying any say-so to the majority of affected persons residing in the cities being merged by the legislative acts. This is a denial of equal protection of the laws and a denial of property without due process contrary to the applicable constitutional provisions.
It is interesting to note that the voters (where allowed to vote) all rejected the consolidation ('merger') except under the last (House Bill 5287), covering an unincorporated area completely surrounded by existing City of West...
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