Rich v. Ryals, 36838

• Citation: 212 So.2d 641
• Decision Date: 02 July 1968
• Docket Number: No. 36838,36838
• Parties: E. Gene RICH, as Planning and Zoning Director, Orange County Planning and Zoning Commission, Appellant, v. Bruce A. RYALS and Bruce A. Ryals Enterprises, Inc., Appellees.
• Court: United States State Supreme Court of Florida

Page 641

212 So.2d 641

E. Gene RICH, as Planning and Zoning Director, Orange County Planning and Zoning Commission, Appellant, v. Bruce A. RYALS and Bruce A. Ryals Enterprises, Inc., Appellees.

No. 36838.

Supreme Court of Florida.

July 2, 1968.

Giles, Hedrick & Robinson and William S. Turnbull, Orlando, for appellant.

Robert W. Olsen, Orlando, for appellees.

ROBERTS, Justice.

We here review by direct appeal a decision by the District Court of Appeal, Fourth District, initially construing and holding unconstitutional Section 19, Chapter 63--1716, Laws of Florida, Special Acts of 1963. The lower court order had sustained a bill in equity for injunction and required the defendants to answer within a period of twenty days. The appellant here, who was the plaintiff in the trial court (appellee in the District Court of Appeal) petitioned the trial court for the issuance of an injunction prohibiting the defendants from operating a junk yard in violation of the Orange County zoning law. The zoning act in question, Chapter 31068, Laws of Florida, Special Acts of 1955, was amended by Chapter 63--1716, supra, such amendment, among other things, providing:

Section 19.

'(a) The Board of County Commissioners or any aggrieved or interested person shall have the right to apply to the Circuit Court of Orange County, Florida, to enjoin and restrain any person violating the provisions of this act, or the comprehensive plan, zoning resolutions and rules and regulations adopted under this act, and the court shall, upon proof of the violation of same, have the duty to forthwith issue such temporary and permanent injunctions as are necessary to prevent the violation of same.

'(b) Any person violating any of the provisions of this act or who shall fail to abide by and obey all orders and resolutions promulgated as herein provided, shall be guilty of a misdemeanor. Each day that the violation continues shall constitute a separate violation.'

The plaintiff, who was Planning and Zoning Director, Orange County Planning and Zoning Commission, simply alleged that defendants were operating a junk yard in violation of the Act. The traditional allegations of nuisance, irreparable damages, and lack of an adequate remedy at law were omitted, plaintiff relying on the 1963 Act as providing a right to an injunction. Because of these omissions the defendants moved to dismiss the complaint, with the Zoning Director contending that he was entitled to an injunction on a mere proof of a violation. The trial court took note of the absence of the allegations of nuisance, irreparable damages, and a lack of adequate remedy at law, and denied the motion to dismiss for the reason that such allegations were not necessary under the terms of the Act. In reversing the trial court, the District Court of Appeal, 202 So.2d 779 said:

'Going straightway to the fundamental point, it is apparent that if the act is valid, the trial court was correct and the order should be affirmed. However, we cannot vouch that hypothesis.'

The District Court then proceeded to initially consider the constitutionality, vel non, of Section 19 of the 1963 amendment and held it to be unconstitutional for the reason:

'This enactment usurps judicial power in a most offensive and unconstitutional way. The mentioned terms of it which encroach upon the judicial function in requiring the performance of a judicial act without regard to the essential and traditional considerations of law and justice are unconstitutional and are hereby stricken and rendered without effect by this Court upon its own motion. To do otherwise and permit these terms to live and be given application would be to deprive the defendant and the citizens of Orange County of their constitutional right to judicial process.' Citing Simmons v. State, 160 Fla. 626, 36 So.2d 207; In re Alkire's Estate, 142 Fla. 862, 144 Fla. 606, 198 So. 475; and Hay v. Isetts, 98 Fla. 1026, 125 So. 237.

A casual examination of the Orange County Zoning Law will show that it provides ample protection to citizens and property owners in that County by the prerequisite of holding public hearings before the adoption of zoning classifications and an appropriate method of appeal is provided. The appellees contend that since the statute uses the word 'shall' in providing for the issuance of an injunction that it mandates a chancellor to grant an injunction and that such is an unjustified invasion of the province of the judiciary by the legislative branch of the government. We do not agree.

Volume 30, Fla.Jur., under Statutes, Section 8, says:

'Although the word 'shall' normally has a mandatory connotation, and the word 'may' normally has a permissive connotation, mandatory language used in a statute may, in a proper case, be construed as permissive only. Indeed, the word 'shall' or 'must' is sometimes construed as meaning 'may'.' (Emphasis added.)

The question is not new to this court. In Fagan v. Robbins, 96 Fla. 91, 117 So. 863, this court said:

'The reasoning and conclusion of this decision is supported by the Supreme Court of Washington in Clancy v. McElroy, 30 Wash. 567, 70 P. 1095; in Boyer v. Onion, 108 Ill.App. 612; Becker v. Lebanon (& M. St. Ry. Co.), 188 Pa. 484, 41 A. 612, in which latter case the court say:

"The word 'shall' when used by the Legislature to prescribe the action of a court is usually a grant of authority, and means 'may,' and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power."

Again, in Schneider v. Gustafson Industries, Inc., 139 So.2d 423, this court said:

'A finer issue arises, however, from the clause of the statute here in question providing in further imperative language that 'the Commission shall dismiss' upon failure of an appellant to file a transcript 'within the time specified or within such time as allowed by the commission pursuant to petition for an extension of time as aforesaid.' This language, construed as any penal provision must be in a strict or literal sense, does not in our opinion amount to an express prohibition against the exercise of discretion in such dismissal or against the application of a rule of substantial as opposed to strict compliance.'

It has long been the policy of this court in the interpretation of statutes where possible to make such an interpretation as would enable the court to hold the statute constitutional. It is therefore our opinion and we hold, that since the Legislature is without authority to mandate a court of equity to issue an injunction, and since we are to presume that the Legislature intended to pass a valid and constitutional act, the word 'shall' as used in Section 19 of Chapter 63--1716, Laws of Florida, Special Acts of 1963, is Permissive and not mandatory, and for that reason it was error for the District Court of Appeal to hold that the word 'shall' amounted to a mandate and invalidated the involved Section 19.

Having held the Act to be valid, we then reach the question of whether or not the complaint merely alleging a violation of the zoning ordinance is sufficient on its face to justify injunctive relief. We think it is. In 17 Fla.Jur., Injunctions, Section 47, it is stated:

'When the interests of the state or other political division or the interests of those entitled to its protection are affected by criminal acts or practices, the state, acting through its governmental agencies, may invoke the jurisdiction of equity to have them restrained. In such cases, the presence of actual injury is not an essential element.' (Emphasis added.)

We cite with approval from Florida Industrial Commission v. Hurlbert, Fla.App., 114 So.2d 209, this language:

'The general rule is that equity has no jurisdiction to enjoin the commission of a crime, but the exception is that equity may grant an injunction when the legislature has specifically, or by clear implication, authorized the injunctive process as a means of restraining violation of a statute. Miami Laundry Co. v. Florida Dry Cleaning and Laundry Board, 134 Fla. 1, 183 So. 759, 119 A.L.R. 956; State Department of Public Welfare v. Bland, Fla., 66 So.2d 59; and Philbrick v. City of Miami Beach, 147 Fla. 538, 3 So.2d 144.'

In Pinellas County v. Hooker, Fla.App., 200 So.2d 560, in dealing with a very kindred question, that court said, and we also cite with approval:

'Defendants moved to dismiss the complaint on the grounds that the county did not allege that the violation of the zoning regulations was also a public nuisance. The court dismissed the complaint without prejudice to the county to amend. The county then filed its amended complaint for an injunction and alleged a public nuisance. At the conclusion of the county's case in chief, the trial court granted a decree in favor of the defendants for the reason that the county had failed to show a public nuisance and relied upon Jacobsen v. Padgett, Fla.App. 1959, 108 So.2d 303.

'The court went on to say that the county had an adequate remedy at law in that the defendants could be prosecuted for violation of zoning ordinances under Section 16, Chapter 26164, Laws of Florida, Acts of 1949; and therefore the county could not maintain an action in equity. This appeal followed. The county raises for our consideration the questions of whether or not a governmental entity which has zoning powers can enforce their regulations by injunctive relief when there is also provisions in the statutes for criminal prosecution, and whether a public nuisance must be present before zoning regulations may be enforced...