Mahood v. State
| Decision Date | 24 March 1931 |
| Citation | 133 So. 90,101 Fla. 1254 |
| Parties | MAHOOD et al. v. STATE ex rel. DAVIS, Atty. Gen., et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
Quo warranto proceeding by the State, on the relation of Fred H Davis, Attorney General, and others against John A. Mahood and others. To review a judgment for the relators respondents bring error.
Reversed and cause remanded, with directions.
Syllabus by the Court.
There exists no statutory authority for the citizens, residents, or inhabitants of a hamlet, village, or town in this state to create a municipal corporation embracing territory not a part of such hamlet, village, or town. Such inhabitants may establish for themselves a municipal government to have jurisdiction over that hamlet, village, or town under the provisions of the statute hereinbefore referred to.
It cannot be successfully maintained that, by including the expanse of waters of Biscayne Bay lying and being between the two separate tracts of land as a part of the incorporated area, the tracts thus separated may be by this means united and held to be contiguous and subject to be included in a municipal corporation by the action of the inhabitants of a community which was located and had its existence entirely on one side or the other of the bay.
Webster's New International Dictionary defines a hamlet as 'a little cluster of houses in the country'; a village as 'any small aggregation of houses in the country, being in general less in number than in a town or city and more than in a hamlet'; a town as, 'in general, any large collection of houses and buildings, public and private, constituting a distinct place with a name and not incorporated as a city.'
It is admitted that Miami Shores was a hamlet or village. If the allegation of the information that that hamlet or village was located entirely west of Biscayne Bay is true then there was no authority in law for the inclusion of the territory east of Biscayne Bay within the corporate limits of the town of Miami Shores.
Bryant & Pittman, of Miami, for plaintiffs in error.
Henry K. Gibson, James H. Lathero, and Miller & McKay, all of Miami, for defendants in error.
In this case the Attorney General as relator, together with the corelators, filed an information in the nature of quo warranto against the respondents, seeking to oust the respondents from exercising the powers, duties, and franchises of a municipal corporation and the officers thereof within certain territory described in the information, which territory is that part of the area sought to be included within the boundaries of the town of Miami Shores lying east of an imaginary line running northeasterly and southwesterly about the middle of Biscayne Bay.
It is alleged in effect, amongst other things in the information, that in February of 1926 there existed a community known as Miami Shores which was located west of Biscayne Bay; that in that community there were 49 qualified electors; and that 38 of these electors proceeded to organize a municipal corporation under the provisions of section 1825 to 1828, Rev. Gen. St. of Fla., 1920, sections 2935 to 2938, Comp. Gen. Laws 1927, and by the proceedings had in that regard included within the corporate limits the territory lying east of Biscayne Bay, which is described in the information and which was separated from the village of Miami Shores by the waters of Biscayne Bay, which waters immediately east of the village of Miami Shores cover an area about three miles wide.
It was alleged in the information that the area sought to be affected by the information was not a part of, nor connected with, the village of Miami Shores in any way.
There was a motion to quash the information, which was denied. There was a motion to dismiss, which was denied. A demurrer was overruled. The respondents answered. There was a motion to strike the answer of the town of Miami Shores, a demurrer to the answer, and motion for judgment of ouster. Thereupon judgment of ouster was entered.
We could affirm the judgment of ouster were it not for the fact that the answer alleges, 'It is denied that said territory is not a part of the community of Miami Shores, and that it is far removed and isolated from the community.' This allegation traverses the allegation of the information to the effect that the territory sought to be affected by the information was not a part of the community of Miami Shores. This presents a question of fact which the respondents are entitled to have tried by a jury, and, until the truth in regard to that fact has been ascertained, it is not needful to discuss other questions raised by the pleadings.
There exists no statutory authority for the citizens, residents, or inhabitants of a hamlet, village, or town in this state to create a municipal corporation embracing territory not a part of such hamlet, village, or town. Such inhabitants may establish for themselves a municipal government to have jurisdiction over that hamlet, village, or town under the provisions of the statute hereinbefore referred to. In Town of Enterprise v. State ex rel., 29 Fla. 128, 10 So. 740, 744, in an opinion by Mr. Justice Mabry, it is said:
.
We do not think it can be successfully maintained that, by including the expanse of waters of Biscayne Bay lying and being between the two separate tracts of land as a part of the incorporated area, the tracts thus separated may be by this means united and held to be contiguous and subject to be included in a municipal corporation by the action of the inhabitants of a community which was located and had its existence entirely on one side or the other of the bay.
We are not prepared to say that the Legislature could not by proper enactment create a municipality embracing an area a part on one side and a part on the other side of a bay of this character, but in this case the Legislature has not attempted to do that.
The pleadings all admit that there was a village known as Miami Shores and that the inhabitants of this village proceeded to the organization of a municipal corporation. The question of fact to be determined is whether or not that village had its existence and its location in whole or in part of the lands east of the middle of Biscayne Bay.
Webster's New International Dictionary defines a hamlet as 'a little cluster of houses in the country'; a village as 'any small aggregation of houses in the country, being in general less in number than in a town or city and more than in a hamlet'; a town as, 'in general, any large collection of houses and buildings, public and private, constituting a distinct place with a name and not incorporated as a city.'
It is admitted that Miami Shores was a hamlet or village and if the allegation of the information that that hamlet, or village, was located entirely west of Biscayne Bay then there was no authority in law for the inclusion of the territory east of Biscayne Bay within the corporate limits of the town of Miami Shores.
For the reasons states, the judgment must be reversed, with...
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