Fossey v. Dade County, 60-193

• Decision Date: 31 October 1960
• Docket Number: No. 60-193,60-193
• Citation: 123 So.2d 755
• Parties: Ralph A. FOSSEY, Individually, and as County Commissioner of Dade County, Florida, Appellant, v. DADE COUNTY, a political subdivision of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 755

123 So.2d 755

Ralph A. FOSSEY, Individually, and as County Commissioner of Dade County, Florida, Appellant, v. DADE COUNTY, a political subdivision of Florida, Appellee.

No. 60-193.

District Court of Appeal of Florida, Third District.

Oct. 31, 1960.

Milton Ferrell and J. M. Flowers, Miami, for appellant.

Darry A. Davis, Miami, for appellee.

CARROLL, CHAS., Judge.

The appellant Ralph A. Fossey, the plaintiff below, seeks reversal of a declaratory decree which was entered by the circuit court in Dade County.

The matter which appeared before the trial court was summarized in the appellant's brief as follows:

'This is an appeal from a declaratory final decree adjudicating that the appellant, Ralph A. Fossey, individually and as County Commissioner of Dade County, Florida, is not qualified to vote upon a resolution to be proposed to the Board of County Commissioners of Dade County, Florida. Said resolution, so to be proposed, among other things, is for the issuance of bonds to construct a system of causeways, bridges, and roadways to contain therein a causeway to Elliott Key. The ground assigned by the trial court as its reason for said adjudication, is the fact that the appellant, a member of said Board, owns lands on Elliott Key. The appellee is Dade County, Florida.

'There is no dispute between the parties as to any fact. The answer of appellee to the complaint of appellant admitted every allegation of fact therein. It denied only that appellant was qualified to vote upon said resolution, to be proposed, under the facts alleged in said complaint; and it asserted affirmatively that such a vote by appellant would be contrary to public policy and would be prohibited by law. Said answer prayed the Court to construe Section 4.03(E) of the Home Rule Charter of Appellee and determine that such a vote by appellant would violate said Charter and be contrary to public policy.'

Dade County was operating under a home rule charter, adopted by the electors on May 21, 1957, on the enabling authority of Article VIII, § 11 of the Constitution of Florida, 26 F.S.A. Section 4.03(E) of the charter provided in pertinent part as follows:

'Any county official or employee of the county who has a special financial interest, direct or indirect, in any action by the Board shall make known that interest and shall refrain from voting upon or otherwise participating in such transaction. * * *'

Commissioner Fossey was the owner of an undivided one-half interest in approximately 64 acres of land on Elliott Key. In response to a request by another county commissioner, the county attorney had rendered an opinion holding that this charter provision precluded Commissioner Fossey from voting on the matter involved. In his suit for declaratory decree Fossey sought to obtain a ruling contrary to the county attorney's opinion.

A court can take judicial notice of the fact that a bridge or causeway connecting the mainland with a series of undeveloped keys, including Elliott Key, lying between Key Biscayne and Key Largo in the Atlantic Ocean, would have a substantial impact and influence on the value and the use of the keys property involved. Unless we should wish to blind ourselves to the realities, we must conclude, as did the learned chancellor, that the appellant county commissioner owning a considerable part of Elliott Key held a financial interest which would be affected in a very real and substantial manner depending on the outcome of the vote of the Board of which he is a member.

On the oral argument of this case the attorney for the county urged this court to amplify the charter provision by defining its scope and fixing its limits, so as to provide a formula for future determination, without the necessity of suits, of its applicability in all circumstances. To do so would be an unwarranted invasion of the legislative process. There is no proper way for the courts to avoid the duty which such a legislative provision places on them to consider its applicability to each...