Coen v. Lee

• Decision Date: 13 November 1933
• Citation: 156 So. 747,116 Fla. 215
• Parties: COEN v. LEE et al.
• Court: Florida Supreme Court

156 So. 747

116 Fla. 215

COEN v. LEE et al.

Florida Supreme Court

November 13, 1933

On Rehearing Oct. 5, 1934.

En Banc.

Suit by J. B. Coen against J. M. Lee, as Comptroller of the State of Florida, and others. From an order dissolving a temporary restraining order, complainant appeals.

Reversed and remanded with directions. Appeal from Circuit Court, Highlands County; W J. Barker, judge.

COUNSEL

Whitaker Bros., of Tampa, for appellant.

Cary D Landis, Atty. Gen., and Robert J. Pleus, and H. E. Carter Asst. Attys. Gen., for appellees.

OPINION

WHITFIELD Justice.

In a suit by a taxpayer, the circuit judge granted and subsequently dissolved a temporary restraining order enjoining the state comptroller and his employees from proceeding with an examination into the affairs of the financial department of the city of Avon Park, Fla., under the authority and direction of the Governor, pursuant to section 3089 (1956), Compiled General Laws 1927.

This appeal is from the order dissolving the temporary restraining order.

The controlling questions presented are whether the provisions of section 3089 (1956), Compiled General Laws 1927, authorizing an examination into the affairs of the financial department of the city government by state authorities, violates constitutional provisions contained in section 8 of article 8; whether the statute confers upon the comptroller and his employees judicial powers in violation of section 1, article 5; whether the provisions of the statute imposing upon the city the expense of the examination violates section 5 of article 9; whether the examinations made under the statute are such governmental functions as to make the examiners appointed by the comptroller under the statute officers who should be appointed by the Governor under section 27 of article 3; whether under section 24 of article 3 the enumeration of the city officers and their duties in the Charter Act of 1927 (Sp. Acts 1927, c. 12514), does not repeal the prior enacted section 3089 (1956), Compiled General Laws 1927; and whether the enforcement of the statute in this case is so useless and arbitrary as to violate appellant taxpayer's organic property rights.

'Illegal action taken by state officials may be enjoined, when the ordinary remedies afforded by courts of law are inadequate.' Sparkman v. County Budget Commission et al., 103 Fla. 242, 137 So. 809, 813.

The creation of municipal corporations with governmental powers and the establishment and regulation of municipalities are inherent legislative powers and such powers are plenary in the absence of organic restrictions.

Under the territorial government in Florida and until 1861, the territorial legislative council and the state legislative 'General Assembly' under the Constitution of 1838, exercised the inherent power of the lawmaking body to enact laws creating and regulating municipalities without express organic restraints.

Section 24, article 4, Constitution of 1861, and section 20, article 4, Constitution of 1865, required the enactment of general laws for the incorporation of towns and forbade special laws on that subject.

The Constitution of 1868 contained the following:

'The Legislature shall establish a uniform system of county, township, and municipal government.' Section 21, article 4.

'The Legislature shall provide by general law for incorporating sich municipal, educational, agricultural, mechanical, mining, and other useful companies or associations as may be deemed necessary.' Section 22, article 4.

'The Legislature shall not pass special or local laws * * * regulating * * * municipal business' or 'the election of * * * municipal officers.' Section 17, article 4.

Such 'laws shall be general and of uniform operation throughout the State.' Section 18, article 4.

'It has been held that the above provisions of article 4 of the Constitution of 1868 forbade local or special laws respecting municipalities but did not forbid proper classifications of municipalities for general legislative regulation. See State ex rel. v. Stark, 18 Fla. 255; Ex parte Gecrge S. Wells, 21 Fla. 280; Town of Enterprise v. State, 29 Fla. 128. 10 So. 740.' State ex rel. v. Avon Park (Fla.) 149 So. 409, 413.

The Constitution of 1885 is a revision of the Constitution of 1868, and, to make it clear that a complete change was intended to be made in the organic law respecting legislation concerning municipalities, the Constitution of 1885 not only by its section 24, article 3, expressly recognizes the power of the Legislature, in the absence of organic prohibitions or limitations, to enact special or local laws as well as general laws respecting municipalities, but there is incorporated in the organic law of 1885, section 8, article 8, which expressly states that:

'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.'

The power of the Legislature respecting municipalities as stated in section 8, article 8, is merely declaratory of legislative power that eixsts if not restrained by organic law, and does not take from the Legislature its inherent power to provide for supervision over the municipal corporations established by law. This power of supervision over municipalities may be exercised through administrative state officers and their lawful employees, within the limitations prescribed by law, to the end that municipal abuses may be prevented and corrected without unduly encroaching upon the rights of citizens or upon the lawful exercise of municipal functions by the officers provided for that purpose. Section 3089 (1956), Compiled General Laws 1927, does not violate section 8, article 8, of the state Constitution.

The Charter Act of the city of Avon Park enumerates the officers for the city government and prescribes their duties; but the Charter Act is not inconsistent with section 3089 (1956), Compiled General Laws, because the two acts have distinct and separate spheres of operation and do not conflict in their purpose or provisions.

While the Charter Act relates to municipal existence and government, the other act provides for state administrative supervision of the affairs of the financial department of the municipality. There being no inconsistency in the acts, section 24, article 3, requires that the general law shall be operative, therefore it is not repealed or superseded as to the city of Avon Park by the Charter Act.

Section 5, article 9, Constitution, provides that:

'The Legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes.'

State administration supervision of municipal financial affairs may fairly be regarded as a municipal purpose in that the supervision is to conserve the municipal finances and the rights of the municipal taxpayers; thereto supervise municipalities, a proper statute fore, in view of the power of the Legislature may, within appropriate limitations, require the municipality to pay the necessary and reasonable expenses of state administrative supervision of the financial affairs of the city, in which the state has an interest for the general good, without violating section 5, article 9, of the Constitution. 44 C.J. 1265. See County Commissioners v. Pilot Commissioners, 52 Fla. 197, 42 So. 697, 120 Am. St. Rep. 196.

The statute authorizes the comptroller to appoint 'some competent person or persons' to make the required examinations. Such appointed examiners have no judicial or other official functions to perform. They are ministerial agents of the comptroller and act for him, in making the examinations and reports required by the statute. Authority to administer oaths conferred by statute do not make such examiners officers under section 27, article 3, Constitution.

The statute contains the following:

'The Comptroller and every such examiner appointed by him shall have power to administer an oath to any person whose testimony may be required on any such examination, and to compel the appearance, attendance and testimony of any such person for the purpose of any such examination, and the production of books and papers.' Section 3089(1956), Compiled General Laws 1927.

If such provision violates any provision or principle of organic law, it may be regarded as eliminated without impairing the operation of the remainder of the law.

Under section 23, article 4, of the Constitution:

'The Comptroller shall examine, audit, adjust and settle the accounts of all officers of the State and perform such other duties as may be prescribed by law.'

It is appropriate that such a constitutional state officer should be given limited supervisory authority over municipal financial affairs.

The Governor may act as contemplated by the statute with or without a petition from the tax paying electors of a municipality; and it is the duty of the comptroller to perform in a lawful manner functions prescribed by the statute when he is duly directed to do so by the Governor.

Since the state has authority to provide by statute for administrative supervision of municipal financial affairs to conserve the rights of taxpayers and for the general welfare, and to require the municipality to pay the reasonable expense of such administrative supervision, no organic property rights of a taxpayer are violated by such a statute when properly framed and duly executed; and, if property or other rights are violated by an unlawful execution of the statute, the law affords a remedy by due course of judicial procedure.

The fact that the municipality has had its financial...