P. C. Lissenden Co. v. Board of County Com'rs of Palm Beach County for Use and Benefit of Graybar Elec. Co.

• Decision Date: 02 December 1959
• Parties: P. C. LISSENDEN CO., Inc., a Florida corporation, and Standard Accident Insurance Company, a Michigan corporation, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Florida, for the use and benefit of GRAYBAR ELECTRIC COMPANY, a New York corporation, Appellee.
• Court: Florida Supreme Court

Page 632

116 So.2d 632

P. C. LISSENDEN CO., Inc., a Florida corporation, and Standard Accident Insurance Company, a Michigan corporation, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Florida, for the use and benefit of GRAYBAR ELECTRIC COMPANY, a New York corporation, Appellee.

Supreme Court of Florida.

Dec. 2, 1959.

Rehearing Denied Jan. 12, 1960.

Ronald Sales and Fulton, Sullivan & Burns, West Palm Beach, for appellants.

Paty, Downey & Daves and Joel T. Daves, III, West Palm Beach, for appellee.

DREW, Justice.

This appeal comes to this Court from the trial court under the provision of the Constitution providing for a direct appeal from any judgment of a trial court directly passing upon the validity of a state statute. ¹

The Board of County Commissioners of Palm Beach County entered into a contract with P. C. Lissenden Co., Inc., a corporation, as general contractor, to remodel the Palm Beach County Courthouse. The contractor, in accordance with a requirement of the statute, ² executed the usual penal bond containing the additional provision for the payment of all costs of labor, material and supplies used directly or indirectly in the prosecution of the work provided for in the contract. J. C. Hime Electric Company was the sub-contractor for the electrical work and Graybar Electric Company was the materialman furnishing electrical supplies and equipment. Hime Electric failed to pay for a considerable quantity of electrical equipment and supplies which, it is conceded, actually were incorporated into the project, whereupon Graybar instituted suit against the general contractor, the surety and Hime Electric, basing its cause of action upon the bond so executed. Judgment therefor was directed and entered in its favor.

The validity of the statute was raised for the first time in two affirmative defenses presented by the defendants. These defenses alleged that Chapter 255.05, Florida Statutes, F.S.A., violates Section 12 of the Declaration of Rights of the Florida Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States because said statute deprived the defendants of their property without due process of law, and that said Chapter violates Section 17 of the Declaration of Rights of he Florida Constitution and Section 10 of Article I of the United States Constitution 'as impairing the obligation of contracts.' The filing of this defense is the first mention of the statute in these proceedings. The only other reference is found in the order of the trial judge on a motion for summary decree where, in paragraph 5, he held 'that Statute 255.05 under which Graybar Electric Company seeks to recover upon the performance bond is constitutional.'

The cause of action in this case does not aris out of the statute but out of the performance bond. ³ The amended complaint is upon the bond and the contract made a part thereof and not upon the statute. Whether the statute is constitutional or not under the facts in this case is immaterial. Such question, although raised and expressly passed upon by the trial court, is neither dispositive of this litigation nor is it material in any way to a determination of the cause of action alleged in the complaint.

The performance bond was required not only by the statute but by the express terms of the contract entered into between the County and Lissenden. By its terms, the bond was for the benefit of Graybar and others furnishing labor and materials. ⁴ It is obvious, of course, from reading the statute that it imposes a duty upon those public bodies awarding contracts of this kind, before allowing the work to proceed, to secure not only the penal bond but a bond with the additional provisions for the payment of labor and materials. The reasons for such requirements have been amply delineated in previous decisions of this Court, ⁵ and we have said that if the public body fails to make such requirement of the contractor and a materialman is injured thereby, he has a cause of action against the members of the public body for damages arising therefrom. ⁶ The statute further provides that such public body shall, upon affidavit being furnished, deliver to a person for whose benefit the bond is executed a copy thereof and of the contract and that such person may institute suit in the name of the state or other public body to recover for any unpaid materials or labor actually furnished and incorporated in the work. ⁷ This statute is not essential to a cause of action in a materialman where the bond has been actually posted nor would the lack of such a statute be an impediment to a public body requiring a bond with the provisions therein provided for.

While the statute authorizes the institution of a suit in the name of the state or any other public body for the benefit of the injured party, that provision is not esential to such cause of action. Under our rules ⁸ an action may always be prosecuted in the name of the real party in interest. So it is quite clear from this record that, while the validity of this statute was raised by the appellant and actually passed upon by the trial court, it was not only not determinative of the issues or essential to the disposition thereof, but such question was wholly immaterial to the determination of the merits of the action. Therefore that portion of the judgment appealed which purpots to pass upon the validity of the cited statute is obiter dictum and is hereby held for naught.

The foregoing conclusion, that the action of the trial court in passing upon the validity of the statute was unnessary to a determination of the cause, brings us squarely to the issue of whether, having thus eliminated that part of the trial court's judgment upon which the direct appeal to this Court was predicated, we should proceed to determine the remaining issues involved in the appeal or transfer the cause to the proper district court of appeal. In a previous case, Evans v. Carroll, ⁹ the latter procedure was followed in a somewhat analogous situation upon the theory that the questions raised with reference to the validity of the statute were 'merely colorable, unrelated to the particular facts involved,' ¹⁰ and the decree appealed, which did not contain an express ruling on the contested statute, could not therefore be regarded as one 'directly passing upon the validity of a * * * statute' ¹¹ so as to permit consideration and disposition of the merits of the appeal by this Court.

We think, however, that the principles applied in that situation do not control the instant case. Since the decision in the Carroll case, and since argument before the Court in this cause, ¹² numerous conferences have contributed to a thorough and painstaking review, by the individual members of the Court, of the constitutional questions involved in this and related causes. ¹³ These diliberations, which necessarily chart the course for future appeals in this area of jurisdiction, and the intervening summer recess, have resulted in a longer delay than would ordinarily be justified in the disposition of these appeals.

The Court has reached the conclusion that the language of the Constitution ¹⁴ confers upon a litigant in the trial courts of this state the right to appeal to the Supreme Court an adverse final judgment or decree such as that here involved which on its face passes upon the validity of a state statute, and that when that right is exercised by the litigant then thid Court, under the cited provision of the Constitution, has jurisdiction of the should determine the appeal even though in its consideration of the case it is decidec that the action of the trial court, in passing upon or expressing an opinion upon the jurisdictional issue of statutory validity, was unnecessary to the disposition of the cause. The reasoning and practical analysis supporting this conclusion have been carefully examined in cases arising under similar constitutional requirements. ¹⁵ The widely endorsed principle that the constitutiponal or statutory issue must be an essential element in the litigation, in order to support appellate review on this ground, ¹⁶ is thus a prima facie test, the ultimate requirement being that there should exist a genuine issue, fairly and in good faith presented, as to the validity of the statute in controversy and its applicability in the case under consideration. ¹⁷ Upon appeal from a judgment rendered in this situation, an exercise of the constitutional jurisdiction of this Court is necessarily involved whether or not the view of the trial court on the point is sustained. Universally recognized principles of appellate review then require that a court, exercision jurisdiction over a cause to this extent, should proceed to dispose of all questions properly presented in the appeal. Moreover, the efficient and speedy administration of justice is thereby promoted, any any part of the opinion in the Carroll case, supra, which may be construed to be in conflict with these conclusions is receded from.

We have considered in detail the other points raised in the appeal, relating primarily to the interpretation of the evidence in the cause and are of the view that the judgment rendered is without error.

Affirmed.

TERRELL, ROBERTS, THORNAL and O'CONNELL, JJ., concur.

THOMAS, C. J., and HOBSON, J., dissent.

THOMAS, Chief Justice (dissenting).

As is noted at the outset of the majority opinion, this appeal reaches this court under the provision of Sec. 4(2), Art, V of the Constitution, F.S.A., for direct appeal to the Supreme Court 'as a matter of right' from judgments of trial courts passing directly 'upon the validity of a state statute * * *.'

In the circuit court a complaint was filed by the appellees demanding judgment against the appellants and alleging that P. C. Lissenden Co., Inc., as principal, and Standard Accident Insurance Company, as surety, had become bound in the sum of $599,000 conditioned on the...