Davis v. Gronemeyer, 39670
| Decision Date | 12 July 1971 |
| Docket Number | No. 39670,39670 |
| Citation | 251 So.2d 1 |
| Parties | W. A. DAVIS et al., Appellants, v. Fred G. GRONEMEYER et al., Appellees. |
| Court | Florida Supreme Court |
Jack H. Greenhut and Joe J. Harrell, of Harrell, Wiltshire, Bozeman, Clark & Stone, Pensacola, for appellants.
Hobart O. Worley, Jr., of Barksdale, Tucker & Worley, Pensacola, for appellees.
Pursuant to Fla.Const. Article V. § 4(2), F.S.A., we review by direct appeal a final judgment of the Circuit Court, Escambia County, construing certain provisions of the Constitution of Florida as amended in 1968.
The facts are not in dispute. In 1951, the Florida Legislature, by special act (Chapter 27537, Laws of Florida) created a civil service system for the civil service employees of Escambia County, and provided therein for a Civil Service Board (hereinafter called the Board) to administer and enforce the provisions of the law. The initial law has been amended seventeen times since 1951, and in 1967, by Chapter 67--1370, Laws of Florida, the Legislature substantially revised the civil service system. The Act, as amended, continued in full force and effect following adoption of the 1968 Florida Constitution.
Subsequently, on January 9, 1970, appellants, the Board of County Commissioners of Escambia County (hereinafter called the County Commission), enacted and adopted Ordinance No. 69--1, which repealed Chapter 27537, together with all its amendments. At the same time the County Commission also enacted Ordinance No. 69--2, creating a County Civil Service System for the employees specified in the Ordinance. These actions were allegedly taken pursuant to the 'home rule' provisions of the 1968 Constitution as set forth in Article VIII thereof and implemented by Chapter 69--234, Laws of Florida, Fla.Stat. §§ 125.65 and 125.69, F.S.A., 1 and Chapter 69--32, Laws of Florida, Fla.Stat. §§ 125.66, .67 and .68, F.S.A.
We are called upon to consider two issues on this appeal: (1) whether appellees, the Civil Service Board of Escambia County, or its individual members, have standing to bring a suit seeking to enjoin the enforcement and implementation of Ordinances No. 69--1 and 69--2; and (2) if so, whether the 1968 Florida Constitution authorizes repeal of Chapter 27537, as amended, by the Board of County Commissioners of Escambia County. The Circuit Court determined that appellees did have standing to sue and enjoined enforcement and implementation of the ordinances, concluding that the actions of the County Commission were not authorized by the Constitution.
We turn first to the question of the standing of the Civil Service Board to seek an injunction against the enforcement and implementation of the ordinances.
The issue is one of first impression in this State. The County Commission argues, first, that appellees are foreclosed from raising the issue of the County's authority to repeal Chapter 27537 by the well established rule that office holder cannot question the constitutionality of a state statute without showing that he will be injured its enforcement. State ex rel. Atlantic its enforcement. State ex rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922); City of Pensacola v. King, 47 So.2d 317 (Fla.1950); Steele v. Freel, 157 Fla. 223, 25 So.2d 501 (1946); State ex rel. Watson v. Kirkman, 158 Fla. 11, 27 So.2d 610 (1946); Green v. City of Pensacola, 108 So.2d 897 (Fla.App.1st, 1959); and State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930).
This argument is not persuasive. The Civil Service Board does not challenge the validity of any state statute. It seeks only to test the validity of Ordinances 69--1 and 69--2 under the 1968 Florida Constitution and Chapter 69--234 and 69--32, Laws of Florida. Moreover, in general, the cases holding that a ministerial officer may not challenge the validity of a statute have reference to those situations in which an office holder appointed to perform duties under a given act refuses to perform those duties because of the alleged constitutional invalidity of the act. In such a case, it is said that unless expenditure of public funds is involved, the office holder is foreclosed from questioning the validity of the act. State ex rel. Davis v. Love, Supra.
In the instant case we are not confronted with this type of situation. The Board has been willing at all times to perform its duties under Chapter 27537 and its amendments, but has been prevented from doing so by the actions of appellants.
It is true that Chapter 27537, as amended, does not give the Board an express power to sue. The Act does, however, give the Board power to enforce its provisions, to prevent violations, and to retain counsel. 2 In our opinion, the necessary and fair inference to be drawn from these powers, taken collectively, is that they give the Board power to bring suit to test the constitutionality of ordinances which presume to repeal the Act. Indeed, if repeal by the County Commission may be characterized as the ultimate violation of the Act, as we think it may, the Board would be remiss in performing its obligation to require and enforce observance of the Act if it permitted the repeal to go untested. Accord, City of Pensacola v. King, Supra.
We turn, then, to the second issue confronting us: whether the 1968 Florida Constitution authorizes repeal of Chapter 27537, as amended, by the Board of County Commissioners of Escambia County. Escambia County is a non-charter county. Accordingly, we are initially concerned with the proper construction to be placed on Fla.Const. Article VIII, § 1(f) (1968), which provides:
(Emphasis supplied.)
Considered alone, it is apparent that this provision prohibits the kind of action taken by the County Commission in this case. The Board of County Commissioners of a non-charter county is empowered to enact county ordinances only to the extent such are not inconsistent with general or special law. Chapter 27537 is a special law. Since the Legislature, by special act, has pre-empted the civil service field, it follows that the Board may not enact an ordinance on the same subject. It would be inconsistent with special law to do so.
A further support for this theory is Fla.Const. Article III, § 14, which provides that the Legislature may create civil service systems and boards for county, district and municipal employees. While the Legislature is not required by Article III, § 14, to create such systems, the clear implication of this provision is that where it has done so, it will be considered to have pre-empted the field.
Petitioner urges, however, that Fla.Const. Article VIII, § 6(d) creates an exception to § 1(f). Article VIII, § 6(d), provides:
The 1968 Constitution does not define the term 'local law'. Article X, § 12(g) does provide, however, that the term 'special law' means a special or local law. It follows that at least one definition of a local law is a 'special law'; that is, a special act of the Legislature, enacted pursuant to Article III, § 10 of the 1968 Constitution or Article III, § 21 of the 1885 Constitution. 3
We must next determine whether Chapter 27537, on the effective date of Article VIII related only to unincorporated areas of Escambia County within the meaning of § 6(d). If so, repeal of Chapter 27537 was proper. If not, the actions of the County Commission were unauthorized.
On this point, we have searched the transcript of the proceedings of the Convention of the Florida Constitutional Revision Commission, the Minutes of the Constitutional Revision...
To continue reading
Request your trial
-
Metropolitan Dade County v. Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh
...in performing its obligation to require and enforce observance of the Act if it permitted the repeal to go untested. Davis v. Gronemeyer, 251 So.2d 1, 3 (Fla.1971). Likewise, we think WASA would have been remiss in its obligation had it not undertaken to defend its own existence with a lega......
-
State v. Orange County, 43247
...did not deal with the basic question here as to a requirement for referendum. The appellee's contention that dicta in Davis v. Gronemeyer, 251 So.2d 1 (Fla.1971), is unduly restrictive and if adhered to by the court will effectively write § 1(f), art. VIII, out of the constitution, is total......
-
Fla. Dep't of Transp. v. Miami-Dade Cnty. Expressway Auth.
...to perform its duties but it is prevented from doing so, erroneously relying on Reid v. Kirk , 257 So. 2d 3 (Fla. 1972), Davis v. Gronemeyer, 251 So. 2d 1 (Fla. 1971) and Department of Revenue v. Markham , 396 So. 2d 1120 (Fla. 1981). In Reid , a county assessor sought a declaratory judgmen......
-
Cable-Vision, Inc. v. Freeman
...where there is a difference between a cablevision system and a translator system. Cable-Vision relies on the case of Davis v. Gronemeyer, Fla.1971, 251 So.2d 1. However, that case is distinguished from the instant case as there was an attempt by a non-charter county, under home rule, to rep......