State Ex Rel. Attorney General v. City of Avon Park

• Decision Date: 10 March 1933
• Parties: STATE ex rel. ATTY. GEN. et al. v. CITY OF AVON PARK.
• Court: Florida Supreme Court

149 So. 409

108 Fla. 641

STATE ex rel. ATTY. GEN. et al. v. CITY OF AVON PARK.

Florida Supreme Court

March 10, 1933

On Reargument June 2, 1933.

Rehearing Denied July 12, 1933.

Original proceeding in quo warranto by the State, on the relation of the Attorney General and others, against the City of Avon Park, seeking an adjudication that the city is unlawfully exercising the powers of a municipality over certain rural lands of the corelators and that the city be ousted therefrom. Motions to strike the amended answer having been denied, and a demurrer to the amended answer having been overruled, the Attorney General amended the information in the nature of quo warranto, and the cause was reargued.

After reargument, demurrer to the amended answer overruled by divided court, and cause dismissed without prejudice to institute like proceedings in the circuit court.

BROWN J., dissenting in part.

On Reargument After Amendment of Information.

COUNSEL Walker & Willson, of Bartow, and Mabry, Reaves & White, of Tampa, for relators.

S Colquitt Pardee, of Avon Park, for respondent.

Giles &amp Gurney, of Orlando, as amici curiae.

OPINION

WHITFIELD Justice.

In quo warranto proceedings instituted in this court against the city of Avon Park by the Attorney General, joined by numerous corelators who are owners of unoccupied or unimproved lands in the municipality, it is sought to have an adjudication that the city of Avon Park is unlawfully usurping, exercising, and enjoying the functions, privileges, powers, and franchises of a municipality over described rural lands of the corelators included within the boundaries of the municipality, the contention in effect being that the charter acts of the municipality, chapter 10320, Sp. Acts 1925, and chapter 12514, Sp. Acts 1927, violate designated provisions of the Constitution by including in the municipality large areas of unoccupied and unimproved lands, including described lands of the corelators, that are not actually or potentially needed or useful for municipal purposes, which lands can receive no benefit from the municipality in return for the municipal taxes imposed on them. The respondent's demurrer to the information was overruled. Demurrers to the answer of the respondent city were sustained. State v. City of Avon Park (Fla.) 144 So. 306. An amended answer has been demurred to.

It appears that the town of Avon Park was incorporated by chapter 6662, Sp. Acts 1913, covering 'approximately 1,440 acres, less water'; that the state census of 1925 shows a population of 1,534 in Avon Park; that by chapter 10320, Sp. Acts of 1925, enacted after the state census was taken, the corporate limits of Avon Park, then designated as a city, were extended to include a total of 36 sections of 640 acres each or a total of 23,040 acres, a large portion of which, including those of the corelators described in the information, are rural lands; and the newly added territory was made liable for the debts and liabilities of the city. The federal census of 1930 shows 3,355 inhabitants in the city of Avon Park, including the inhabitants of the added territory; the population in the original municipality being 890 in 1920 and 1,534 in 1925.

By chapter 12514, Sp. Acts of 1927, the added territory was declared to be not liable for bonds issued by the municipality prior to January 1, 1926. See, also, State v. City of Avon Park, 96 Fla. 494, 118 So. 223. The added territory is made liable to taxation for municipal expenses and for the municipal debts since January, 1926. It appears that some of the inhabitants of the added territory have participated in the municipal elections of the city; that some improvements have been made by the municipality in some portions of the added territory and that some police and fire protection has been afforded by the municipality in some portions of the added territory; but it does not appear that the corelators are estopped by acquiescence or otherwise to join in maintaining this action to test the legality of the incorporation of their described rural lands in the municipality by the corporate charters of 1925 and 1927, which charters it is alleged violate the organic property rights of the corelators. Whether a charter act or other statute is unconstitutional in whole or in part on the grounds asserted in this proceeding should be determined by a careful consideration of the facts of each case and the controlling provisions and principles of law applicable thereto. All reasonable doubts as to the validity of a statute or a portion thereof should be resolved in favor of the legislative enactment.

The information contains exhaustive allegations relative to the asserted authority of the municipality and its operations thereunder with reference to the alleged violation of property rights of the corelators, and it is prayed that the respondent municipality 'answer to the said state, and to the corelators herein by what warrant or authority of law it claims to exercise, employ, and perform the functions, powers, privileges and franchises of a municipality in, upon and over the lands of the corelators hereinbefore set forth and described, and that the Court will declare that the said city of Avon Park is unlawfully usurping, exercising and enjoying the functions, privileges, powers, and franchises of a municipality over said lands, contrary to the Constitution and Laws of Florida, and that it be ousted therefrom.'

A voluminous amended answer contains detailed averments designed to show that corelators' lands that are included in the municipality are actually or potentially benefited by the municipal government and its operations and that property rights of the corelators are not being violated by the levy of municipal taxes upon corelators' lands within the municipality.

It appears that municipal bonds have been issued under the charter of the municipality which embraces the lands of the corelators. The bondholders are not parties to this action, and their rights, if any, with reference to lands included in the municipality when the bonds were issued, are not affected by the adjudication of this cause.

The courts have no substantive power to invalidate a legislative enactment upon allegations of its illegality, when the enactment, even if invalid, is not shown to violate organic rights that are duly asserted in appropriate procedure.

But when in authorized proceedings in a court of competent jurisdiction it is duly and clearly shown that, in whole or in part, a legislative enactment by its terms or intendments or in its application violates organic rights to the substantial injury of a party to the cause, it is within the province of the court, in adjudicating the litigated rights of the parties, to make effective the guarantees of the Constitution even if in doing so the court adjudges that the legislative enactment as applied to the rights asserted conflicts with the requirements of organic law, and that, as a consequence, the Constitution, being the paramount law, renders the statutory enactment inoperative in the premises.

Whether a charter act or other statute is unconstitutional in its entirety or in part, on the grounds asserted in this proceeding, should be determined by a careful consideration of the enactment and of the facts in each case and of the provisions and principles of the paramount organic law applicable thereto. All reasonable doubts as to its validity should be resolved in favor of the legislative enactment.

The principal question for determination is whether the intent of section 8 of article 8 of the present state Constitution is to give to the Legislature unlimited power to establish municipalities and to define or extend their boundaries, without reference to the provisions and principles of organic law that are designed to secure property rights by due process and equal protection of the laws and just compensation for property taken for public use; or whether the purpose of such organic section was to remove the limitations contained in the Constitutions of 1861, art. 4, § 24, 1865, art. 4, § 20, and 1868, art. 4, § 22, requiring municipalities to be established pursuant to general laws and forbidding special or local laws incorporating municipalities. The power to incorporate municipalities and to define their jurisdiction and authority is legislative in its nature; and such power is exercised by the Legislature subject to applicable organic limitations if any. Any and all legislative action is subject to constitutional limitations; otherwise the Constitution would not be the supreme and controlling law.

Section 8, article 8, does not specifically define or regulate the power of the Legislature to designate the territorial boundaries of municipalities, though the organic section does state that 'the Legislature shall have 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,' which quoted powers were exercised, originally by the enactment of special laws incorporating municipalities separately and defining their boundaries, as an inherent legislative power, by territorial legislative council enactments, as authorized under acts of Congress, and later by the Legislature of the state of Florida under the Constitution of 1838, from 1822 until the Constitution of 1861 required the legislative power to incorporate towns to be exercised only by general laws, as will be stated herein.

The Constitution requires that all the area of the state be divided into counties; but the Constitution does not contemplate that all the lands in the state shall be embraced in municipal corporations. The present organic...