Givens v. Hillsborough County

• Decision Date: 28 July 1903
• Citation: 46 Fla. 502,35 So. 88
• Parties: GIVENS v. HILLSBOROUGH COUNTY et al.
• Court: Florida Supreme Court

35 So. 88

46 Fla. 502

GIVENS v. HILLSBOROUGH COUNTY et al.

Florida Supreme Court

July 28, 1903

In Banc. Appeal from Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Bill of Darwin B. Givens against the county of Hillsborough and others. Decree for defendants, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. The Legislature has power by a curative act to authorize the issuance of county bonds, notwithstanding a failure by the county to comply with some provision of the statute regulating the issue of such bonds, if the provision violated is one which could have been dispensed with in the enactment of the original state.

2. The adjudication by a court that a proposed issue of county bonds is, because of some irregularity of procedure, unauthorized and void, does not defeat the right of the Legislature by subsequent curative act to authorize their issuance.

3. An act of the Legislature relating to counties of a certain class, general in its terms, and founded upon a proper and legitimate basis of classification, is general, and not special, legislation, though but a single county is embraced within the class affected by the legislation.

4. The notice of sale of county bonds required by section 596 of the Revised Statutes of 1892 need not state that the bids therefor may be payable in current funds or in evidences of indebtedness of the county.

5. Allegations in a bill filed to enjoin the issuance of county bonds, questioning the regularity of the appointment of bond trustees for the proposed issue, afford no ground for enjoining the issuance of the bonds.

COUNSEL

F. M. Simonton and Solon B. Turman, for appellant.

Phillips & Phillips, Gunby & Gibbons, and R. W. Williams, for appellees.

The county commissioners of Hillsborough county, on the 14th day of August, 1901, passed a resolution for the issuance of county bonds to the amount of $400,000 for building hard-surface highways and funding the outstanding indebtedness of the county. An election was held, which resulted in a ratification of this resolution by the legal voters of the county, and the bonds were prepared and advertised for sale, and a bid therefor accepted by the county officials. In February, 1903, before the bonds were issued by the county to the successful bidder, a decree was rendered by this court, reported in Hillsborough County v. Henderson, 45 Fla. ----, 33 So. 997, perpetually enjoining the proposed issue of bonds because of irregularity in the resolution of the board of county commissioners upon which the proposed issue was based.

In the month of April, A. D. 1903, the following act was passed by the Legislature and approved by the Governor:

'An act to legalize and validate any county bonds heretofore favorably voted upon and afterwards advertised for sale by any county of the state of Florida for the purpose of constructing macadamized and other hard surfaced highways in such county and to fund the outstanding indebtedness of any such county, or for either or both such purposes, and to cure any and all defects therein, and to permit the sale thereof as now provided by law.

'Be it enacted by the Legislature of the State of Florida:

'Section 1. Whenever any county bonds for the purpose of constructing macadamized and other hard surfaced highways in such county and to fund the outstanding indebtedness of any such county, or for either or both of such purposes shall have heretofore been favorably voted upon at a county election held for such purpose, and afterwards advertised for sale, such bonds be and they are hereby declared legal and valid, and they shall not be held invalid on account of any irregularity in the proceedings taken prior to the advertisement of said bonds for sale, and all defects or other irregularities in such proceedings are hereby cured and the sale of such bonds is hereby authorized and permitted according to the provisions of article 2, chapter 2, title 9, part 1 of the Revised Statutes of the state of Florida; and whenever any such bonds have been disposed of by the county authorities for value in accordance with said provisions of the Revised Statutes as subsequently amended or have been offered for sale but have not been fully sold by delivery to the purchaser, then any and all such bonds so offered for sale or disposed of shall be of full force and effect and have the same validity as if no irregularity had occurred in the proceedings in regard to the issuance and sale of said bonds: provided always that this act shall not apply to any bonds issued by any county officer other than those authorized by said provisions of the Revised Statutes as so amended.

'Sec 2. This act shall take effect immediately upon its approval by the Governor, or its becoming a law without such approval.'

During the same session of the Legislature a special act was also passed for the purpose of validating or authorizing the proposed issue of bonds, but this act it is not necessary to set out.

On the 29th day of May, 1903, the appellant, Givens, filed a bill setting up the above facts, and alleging that the county commissioners, purporting to act under the authority of the statute above quoted, on the 23d day of April, 1903, met and advertised the sale of said bonds, and on the 25th day of May, 1903, after advertising the notice of sale as required by law, met for the purpose of receiving bids for the bonds, and accepted the bid of the defendant Trice for 50 of the bonds of the par value of $1,000 each, to be paid for in current money of the United States. The bill further alleged that the board of county commissioners was proceeding to carry out the proposed sale of the bonds, and threatening to deliver them to the said Trice, and that such action was illegal for various reasons alleged in the bill, and prayed that it be restrained by injunction from disposing of the bonds. The bill was afterwards amended by alleging further grounds for holding the proposed issue of bonds to be illegal. A demurrer was filed to the amended bill, the demurrer was sustained, and, the complainant refusing to amend, the bill was dismissed. From this decree the complainant appeals to this court.

OPINION

MAXWELL, J. (after stating the facts).

This cause was argued before Division B, but, as it involved a constitutional question, it was referred to the court in banc for decision.

In disposing of this case we shall confine ourselves to a consideration of those objections to the proposed issue of bonds which are insisted upon by the appellant in his argument, treating all others as abandoned.

I. The first objection urged to the power of the county to issue the bonds in question is 'because the Legislature of the state of Florida has no constitutional power to pass an act validating bonds that have already been declared null and void by a court of competent jurisdiction.'

The contention of appellant is that such legislation is a usurpation of judicial power by the Legislature, and in contravention of the distribution of governmental powers made by the Constitution of the state. If the curative act were one to declare the construction to be given some existing instrument, or declaring that an instrument construed by the courts in one way should be construed in another, a different question would be presented from that with which we have to deal. Here no bonds were in existence, but it was proposed that certain bonds should be issued. The authority of the county officials to make the issue was questioned, and the court held that under the then existing conditions they were without such power. The curative act of the Legislature did not question the correctness of this decision, nor attempt to adjudicate the regularity of the previous acts of the county commissioners, but, recognizing the binding force of the judgment of the court, undertook to confer authority where before there was none. The essential force of the act is contained in the clause, 'the sale of such bonds is hereby authorized and permitted according to the provisions of article 2, chapter 2, title 9, part 1 of the Revised Statutes of the state of Florida.'

This court has several times held such curative acts valid when passed before an adjudication by a...