Cobo v. O'Bryant

• Decision Date: 04 December 1959
• Citation: 116 So.2d 233
• Parties: Dr. Delio COBO, as Mayor of the City of Key West, Bill G. Chappell, as governing body member of the Utility Board of the City of Key West and the City of Key West, Florida, Appellants, v. Horace O'BRYANT, Ernest A. Ramsey, and Benjamin N. Adams, Also known as Ben Adams, as and constituting the Citizen Members of the Utility Board of the City of Key West, Florida, Appellees. CITY OF KEY WEST, Florida, Appellant, v. Agnes P. LOWE, as Assistant City Clerk, Appellee.
• Court: Florida Supreme Court

Page 233

116 So.2d 233

Dr. Delio COBO, as Mayor of the City of Key West, Bill G. Chappell, as governing body member of the Utility Board of the City of Key West and the City of Key West, Florida, Appellants, v. Horace O'BRYANT, Ernest A. Ramsey, and Benjamin N. Adams, Also known as Ben Adams, as and constituting the Citizen Members of the Utility Board of the City of Key West, Florida, Appellees.

CITY OF KEY WEST, Florida, Appellant, v. Agnes P. LOWE, as Assistant City Clerk, Appellee.

Supreme Court of Florida.

Dec. 4, 1959.

Hilary U. Albury, Key West, and Anderson & Nadeau, Miami, for appellants.

J. Lancelot Lester, M. Ignatius Lester, Key West, W. G. Ward, Miami, and Weldon G. Starry, Tallahassee, for appellees.

THORNAL, Justice.

The appellants in each of the above styled cases seek reversal of separate decrees of the Chancellor affirming the validity of certain acts of the Legislature regulating aspects of the government of the City of Key West.

Numerous points are assigned for consideration, however, the determining aspects of the problem are whether a Florida municipality is endowed with powers of local self-government, and, the extent of legislative control over the operation and management of property owned by a municipality in a proprietary capacity.

In Cobo et al., v. O'Bryant et al., hereafter referred to as the Utility Board case, the appellants, as plaintiffs in the lower court, sought an adjudication of the invalidity of Chapter 27650, Laws of 1951, Chapter 29201, Laws of 1953, and House Bills 1054, 1055 and 1056, of the Acts of the 1959 Legislature.

By virtue of Chapter 23373, Laws of 1945, the City of Key West owned and operated an electric utility system. The act established a utility board to operate the system. The board consisted of the Mayor, a second member called the 'governing board member' designated by the City Council, and three citizen members to be appointed by the Mayor. Chapter 27650, Laws of 1951 changed the arrangement by providing that the citizen members of the board could appoint their own successors. Chapter 29201, Laws of 1953, provided that the citizen members would be subject to removal by a majority of such members on the board. House Bill 1054, Acts of 1959, abolished the office of 'governing board member' and created an additional citizen member. House Bill 1055, supra, provided that citizen members would be eligible for reappointment but excluded from eligibility any elective officer of the city until at least one year after the expiration of his elective term. House Bill 1056, supra, conferred upon the Utility Board exclusive management and control of the utility system including the fixing of rates and issuance of bonds.

Appellants contend that the Acts of 1951, 1953 and 1959, are unconstitutional because of alleged defects in the title and for the further reason that the Legislature had no power over property owned by the city in its proprietary capacity. Interestingly enough, no assault is levelled against the Act of 1945, which created the original board and authorized municipal operation of the plant.

In the case of City of Key West v. Lowe, the appellant here, plaintiff below, assaulted the constitutionality of House Bill 1251, Laws of 1959. By this Act the Legislature created the position of assistant city clerk and appointed Agnes P. Lowe to fill the job. The assistant city clerk was placed in exclusive control of the registration of voters and other election matters. This official was also authorized to appoint two deputies at salaries fixed by the Act. The statute further provided that the assistant city clerk would hold office under the Civil Service rules of the city.

This Act was assaulted by the appellants on the grounds that it constituted an unlawful invasion of the city's right of local self government, and that the Legislature had no power to create an office and designate the official eo nomine to occupy it.

To support the decree of the Chancellor in both cases the appellees take the position that Florida municipalities do not enjoy any residuum of local self government. They assert that under Section 8, Article VIII of the Florida Constitution, F.S.A., municipalities in this state are creatures of the Legislature and are absolutely subject to legislative control.

In the interest of brevity we resist the temptation to elaborate upon the history of municipal government in this country. The historical development of the respective arguments supporting and opposing the contention that by the very nature of its existence, a municipality enjoys the right of local self-government, offers delectable morsels for the legal historian.

The attorneys for the appellants have filed splendid briefs to support their contention that municipalities have historically exercised powers of local self-government. Unfortunately for appellants, this Court disposed of the matter adversely to their contentions many years ago.

Our own research reveals that there has been a division of authorities on the subject. They can be reconciled, however, by an analysis of the different constitutional provisions of the several states governing the creation and functioning of municipalities.

In some states the constitutions specifically provide for home rule cities and the classification of cities generally for home rule purposes. In those states the courts have recognized that municipalities exercise powers of local self-government by virtue of constitutional provisions. In other states specific constitutional provisions limiting legislative power over municipalities have the same effect.

In states such as Florida, where there are no such constitutional provisions, and where on the contrary the Constitution endows the Legislature with absolute control over municipalities, the rule is consistently otherwise. The fact that home rule and local self-government could be effected in Dade County only by constitutional amendment illustrates this situation.

Legislative authority over Florida municipalities is provided in Section 8, Article VIII, Florida Constitution, which reads as follows:

'The Legislature shall have power to establish, and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. When any municipality shall be abolished, provision shall be made for the protection of tis creditors.'

In applying the quoted provision of the Constitution this Court has consistently adopted the generally accepted proposition that municipal corporations have no inherent right of self-government beyond legislative control of the state in the absence of some specific constitutional provision granting it to them. 62 C.J.S. Municipal Corporations § 184, p. 343; 37 Am.Jur. Municipal Corporations § 77, p. 691; McQuillin, Municipal Corporations, Vol. 2 (3rd Ed.), § 4.82; Rhyne, Municipal Law (1957) §§ 3-4, 4-2.

The appellants here insist that a state constitution in this country is a limitation upon, rather than a grant of power. This basic premise is correct but the application of the principle contended for by appellants does not follows. It is their contention that the provision of the Florida Constitution quoted above limits the powers of the Legislature thereby defined, and there being no organic limitation against municipal self-government a residuum of self-governing authority rests inherent in the people of the local community. This contention of appellants fails to take cognizance of several principles covered in this opinion, and particularly the proposition that there could be no municipal corporation in the absence of legislative action. In other words, the Legislature creates a municipality. It has the authority to abolish it and certainly has the power to regulate and control its government by statutory enactment.

The position which we here take was clearly announced by this Court in State ex rel. Johnson v. Johns, 92 Fla. 187, 109 So. 228. There, an act of the Legislature abolished the government of the City of Hollywood and re-established it under a revised charter. By the enactment the Legislature specifically named five individuals to serve as city commissioner. The statute was assaulted on the ground that it deprived the people of the municipality of their organic right of local self-government. In denying the existence of such a right under the Florida Constitution, this Court concluded that legislative control over cities is absolute, subject only to the restriction that it shall not contravene some provision of the Constitution.

In State ex rel. McMullen v. Johnson, 102 Fla. 19, 135 So. 816, this Court considered a local act regulating municipal elections in the City of Tampa. The act created a board of elections and named the persons who should constitute the first board. The statute was sustained against the attack that it interfered with a claimed right of local self-government. Many aspects of the statute involved in State ex rel. McMullen v. Johnson, supra, were similar to the provisions of the local act in the instant case which created the office of assistant city clerk and endowed that official with control over the operation of elections. In State ex rel. McMullen v. Johnson, supra, we recognized the proposition that palpable...