Luke v. City of St. Petersburg
| Decision Date | 21 November 1958 |
| Citation | 107 So.2d 1 |
| Parties | Bob L. LUKE, Appellant, v. CITY OF ST. PETERSBURG and Morrison Food Services, Inc., Appellees. |
| Court | Florida Supreme Court |
John G. Enwright and John A. Lloyd, Jr., St. Petersburg, for appellant.
Mann, Harrison & Mann and Richard E. Gillmer, Miami, for appellees.
In his complaint against the appellees. City of St. Petersburg and Morrison Food Services, Inc., Bob L. Luke, appellant, claimed that he was injured when he fell on a ramp they jointly controlled and stated that he had not served on the city notice of the occurrence in accordance with Chapter 18896, Laws of Florida, Special Acts of 1937, which provides that 'no suit shall be instituted or maintained against the City of St. Petersburg * * * for damages arising out of any personal injury unless written notice of such claim or injury is within (60) days from the date of receiving alleged injury, given to the CityManager * * * with specifications as to the time and place of said alleged injury.'
The act was passed in 1937. At that time Sec. 21, Art. III, Const., F.S.A., permitted the passage of local or special laws dealing with subjects not specified in the preceding section, none of which related to municipalities, but the enactment of such laws was prohibited unless notice of their introduction had been published or they contained provisions for referendums.
The language now present in Sec. 21, Art. III, expressly imposing on legislation pertaining to cities and towns the restrictions before that applying generally to special or local acts was incorporated by the amendment adopted in 1938.
The sole question is whether Chapter 18896, supra, was, at the time of its passage, a contravention of the constitution because local or special legislation for the introduction of which the prerequisites had not been followed, or whether it was validly enacted under Sec. 8, Art. VIII, by which the legislature had the '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.' (Italics supplied.)
It is appellant's contention that he phraseology just quoted will not admit of a construction that an act like Chapter 18896, supra, could be passed in the absence of the conditions applicable to other types of special or local legislation.
We must reject this argument.
This court as early as 1887 and as late as 1936 held that the provisions of Sec. 21, Art. III, of the Constitution, as it existed prior to the amendment in 1938, did not govern special or local acts relating to cities and towns. State ex rel. McQuaid v. County Commissioners of Duval County, 23 Fla. 483, 3 So. 193; Middleton v. City of St. Augustine, 42 Fla. 287, 29 So. 421; Charles v. City of Miami, 125 Fla. 110, 169 So. 589. In 1938 the court expressed the same opinion in State ex rel. Gray v. Stoutamire, 131 Fla. 698, 179 So. 730, although it does not appear that the point was directly involved.
It is our view that the law dealt with a subject which was comprehended in the term 'government' and that therefore at the time it was enacted, Sec. 8, Art. VIII, applied and not Sec. 21, Art. III.
We have frequently discussed the purpose and effect of such statutes and their relationship to the welfare of cities and the protection of municipal treasuries. For illustration, in Martineau v. City of Daytona Beach, Fla., 47 So.2d 538, we commented on the difference between private and municipal corporations and observed, in effect, that judgments against the latter would affect all taxpayers. The distinction was again recognized in Town of Miami Springs v. Lasseter, Fla., 60 So.2d 774.
It is obvious to us that such an act, designed to protect the city, or at least assure to it an opportunity to prepare defenses against threatened actions and consequent inroads upon the public treasury, or resultant levy upon all taxable property in the municipality, deals with an element of 'government'.
In Miami Laundry Co. v. Florida Dry Cleaning and Laundry Board, 134 Fla. 1, 183 So. 759, 764, 119 A.L.R. 956, 'government' was said to be 'nothing more than an instrument to preserve an ordered society.' To sustain such a society and maintain the varied functions of a municipality created to secure to its inhabitants the privileges and benefits of an organized community, finances are indispensible and, of course, these are derived from the people by taxes, assessments and the like. Inasmuch as a judgment entered against a city in a personal injury case must eventually affect the financial status of the city, and since the act in question was designed to form a bulwark against assaults that the city might, without the notice, be unprepared effectively to meet becaues of the passage of time and consequent lack of opportunity to interview witnesses and preserve evidence, the law, in our opinion, was one dealing with an integrant of 'government'.
We conclude that the circuit judge ruled correctly when he entered judgment in favor of the city for failure of the appellant to file a notice in compliance with Chapter 18896, supra.
Affirmed.
I regret that I cannot agree with the majority.
The sole question presented on this appeal is whether a 'notice' statute, i.e. a statute which requires one who would sue a city in tort to give the city written notice of the accident, and details surrounding it, within 60 days after the accident, deals with the 'government' or 'jurisdiction and powers' of a municipality. If the answer is in the affirmative then the majority opinion and the trial court are correct. If the answer is in the negative, as I believe it should be, then the special act involved herein which required notice be given the city is void because not enacted in accordance with Article 3, Sec. 21, Florida Constitution, as it existed in 1937, and the plaintiff would not therefore be barred from suing the city because of failure to give such notice as he was held to be by the trial court and as was affirmed by the majority opinion.
The facts are adequately set forth in the majority opinion so will not be repeated here.
The order of the trial court which is appealed from held that the special act in question:
The trial court further stated in its order that since the subject Act was enacted in 1937, Article 3, Section 21 as amended in 1928, and not as amended in 1938, must be considered. Under the section as amended in 1938 and as it now exists, the express provisions thereof make the section applicable even to special or local legislation establishing or abolishing municipalities, or providing for their government, jurisdiction and powers, or amending the same. The section as amended in 1928 but prior to the 1938 amendment contained no reference to legislation concerning municipalities but was otherwise substantially similar to the section as it now exists. This Court has recognized that as amended in 1938, Article 3, Section 21, limits the effect of Article 8, Section 8. Chavous v. Goodbread, 1945, 156 Fla. 599, 23 So.2d 761; State ex rel. Gibbs v. Couch, 1939, 139 Fla. 353, 190 So. 723. See also City of Hialeah v. Pfaffendorf, Fla.1956, 90 So.2d 596.
If the subject Act was within the purview of Article 8, Section 8 there remains no question as to its validity, for Article 3, Section 21 as it then existed would not be applicable. Plaintiff contends that although the subject Act was 'legislation affecting municipalities' as noted by the trial court, the subject matter thereof was not within the specific provisions of Article 8, Section 8, which reads:
(Emphasis ours.)
Plaintiff argues that the subject legislation Chapter 18896, Laws of Florida, Special Acts 1937, neither provided for the government nor prescribed the jurisdiction or powers of a municipality.
As evidence of the validity of his argument, plaintiff cites the case of Skinner v. City of Eustis, 1941, 147 Fla. 22, 2 So.2d 116, 135 A.L.R. 359 where the validity of a special act passed in 1913 was involved. That act, Chapter 6683, Laws of Florida, Special Acts of 1913, provided that all suits accruing against the Town of Eustis be instituted within six months after the cause of action accrued. This Court, 2 So.2d on page 118, said:
* * *' (Emphasis ours.)
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McCann v. City of Lake Wales
...supra, the District Court of Appeal, First District, upheld a statute similar to the one now before us. In Luke v. City of St. Petersburg, Fla.1958, 107 So.2d 1, we ourselves reaffirmed our consistent position sustaining the constitutionality of these local acts. See also Olivier v. City of......