Dulaney v. City of Miami Beach, 57-10
| Decision Date | 02 August 1957 |
| Docket Number | No. 57-10,57-10 |
| Citation | 96 So.2d 550 |
| Parties | R. G. DULANEY and Irving Kossoff, Appellants, v. The CITY OF MIAMI BEACH, Florida, a municipal corporation, Ivar Blacker and Charies H. Posner, Appellees. |
| Court | Florida District Court of Appeals |
Cypen, Salmon & Cypen, Miami Beach, for appellants.
Joseph A. Wanick and Alex Gordon, Miami Beach, for appellee, The City of Miami Beach, Florida.
Sibley & Davis, Miami Beach, for appellees, intervenors Ivar Blacker and Charles H. Posner.
Eaton & Achor, Miami, amicus curiae.
This appeal is from a final decree denying an injunction. The plaintiffs describing themselves as citizens, taxpayers and owners of real property in the City of Miami Beach, Florida, sought a decree of the Circuit Court permanently enjoining the defendant, City of Miami Beach, Florida, from holding a special election. The decree of the chancellor is affirmed.
There is no controversy as to events set forth in the complaint as a factual basis for the injunction prayed. On March 27, 1957 the City Council of the City of Miami Beach passed upon first reading an ordinance entitled, 'An ordinance amending ordinance No. 289, commonly known as the 'zoning Ordinance of Miami Beach, Florida.'' The ordinance was passed upon the third and final reading on April 17, 1957. Immediately following the passage upon third reading of the named ordiance, there was presented to the City Council certain petitions consisting of the following words and figures:
'We the undersigned qualified electors of the City of Miami Beach, Florida, do severally and jointly petition the City Council of Miami Beach to submit to the electors of the City of Miami Beach the following measures for adoption by the electorate: 'That all ordinances Amending ordinance number 289, commonly known as the 'zoning ordinance of Miami Beach Florida.' Passed and enacted between the dates of March 27, 1957, inclusive, be and the same are hereby Repealed.''
The City clerk of the defendant certified the petitions as bearing the requested number of signatures of registered voters and no evidence was introduced to the contrary at the trial of the cause. These petitions were presented pursuant to Section 26 of the Miami Beach City Charter, Chapter 22400, Laws of Florida, Special Acts of 1943. This section sets out among other things a procedure for the passage of ordinances by petition of the electorate and provides that the City Council must either adopt the measure initiated by petition without alteration or submit the same to its electorate. The city council took the latter course and passed its resolution calling a special election for the purpose of submitting to the electorate the following single question:
'Shall the following ordinance be adopted?
No evidence was presented of any procedural defect in the calling of the election, although the plaintiff did challenge the propriety of the circulation of the petitions on dates prior to April 17, 1957. $The record reveals that plaintiff's evidence was offered only by stipulation and was to the effect that the special election would cost 'some money' and that some of the petitions were signed prior to April 17, 1957. Every other ground for the issuance of the injunction sought must appear on the face of the pleadings or patently appear from the exhibits or becomes solely a matter of law from the admissions in the pleadings.
The Chancellor found these insufficient to enjoin the election and made the following announcement at the conclusion of argument of counsel:
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