State Ex Rel. Brown v. Emerson

• Decision Date: 30 October 1936
• Parties: STATE ex rel. BROWN v. EMERSON et al.
• Court: Florida Supreme Court

171 So. 663

126 Fla. 576

STATE ex rel. BROWN v. EMERSON et al.

Florida Supreme Court, Division B.

October 30, 1936

Rehearing Denied Dec. 3, 1936.

Original mandamus proceeding by the State, on the relation of W Lesley Brown, against B. H. Emerson and others.

Motions to quash alternative writ overruled.

COUNSEL W. B. Dickenson and Pat Whitaker, both of Tampa, for relator.

Alonzo B. McMullen, Ralph A. Marsicano, and Ralph C. Binford, all of Tampa, for respondents.

OPINION

TERRELL Justice.

This is a proceeding in mandamus brought by W. Lesley Brown as citizen, resident, taxpayer, and qualified elector of the city of Tampa, against B. H. Emerson and others, as the board of representatives of the city of Tampa, a municipal corporation, under the laws of the state of Florida, and P R. Bourquardez, as city clerk of the city of Tampa.

The alternative writ alleges that on August 12, 1936, pursuant to sections 3127 to 3141, Compiled General Laws of 1927 (Acts 1915, c. 6940), a petition signed by more than 20 per cent of the qualified electors in the city was addressed to and filed with the board of representatives requesting it to call a charter board election; that upon receipt of said petition it became the duty of said board of representatives, as the legislative department of the city, to refer said petition to the board of elections, as the registration officer of the city, for checking in accordance with section 3131, Compiled General Laws of 1927, as amended by chapter 15533, Special Acts 1931. It is further alleged that the board of elections adopted a resolution August 19, 1936, calling on the board of representatives to refer said petition to it for checking as required by law, but that the board of representatives has failed, neglected, and refused to do so.

The alternative writ commands the board of representatives and P. R. Bourquardez as city clerk to forthwith deliver to the board of elections the petitions so held by them for the purpose of checking and reporting to said board of elections whether or not the requirements of the law for calling an election to elect a charter board had been complied with, or show cause why they refused to do so. To the alternative writ the clerk and eight members of the board filed motions to quash, while four members of the board filed a return admitting their willingness to comply with its command.

The cause now comes on to be heard on the motion of the board of presentatives and P. R. Bourquardez to quash the alternative writ.

It is first contended that chapter 6940, Acts 1915, sections 3127 to 3141, Compiled General Laws of 1927 (sections 1971 to 1985, Revised General Statutes of 1920), are not applicable to the city of Tampa because they were repealed by section 24 of article 3 of the Constitution of Florida as amended in 1934, but if not so repealed, they are in conflict with chapter 13455, Special Acts 1927, and chapter 15537, Special Acts 1931, and are consequently repealed by the latter special acts; they being the controlling law on the subject.

Section 24 of article 3 of the Constitution as amended in 1934 is as follows:

'The Legislature shall establish an uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws for counties are provided by the Legislature that may be inconsistent therewith. The Legislature shall by general law classify cities and towns according to population, and shall by general law provide for their incorporation, government, jurisdiction, powers, duties and privileges under such classifications, and no special or local laws incorporation cities or towns, providing for their government, jurisdiction, powers, duties and privileges shall be passed by the Legislature.'

This provision of the Constitution is not self-executing, and the Legislature has not yet seen fit to pass any law making it operative. Its terms are such that the Legislature could pass an act making it operative in a way that would repeal chapter 6940, Acts 1915, but not having seen fit to do so, it is ineffective to repeal or modify the latter act, section 8 of article 8 of the Constitution, or any other provision of the Constitution or statutes affecting municipalities. State ex rel. Matthews v. Alsop, Jr., 120 Fla. 628, 163 So. 80.

Chapter 13455, Special Acts 1927, provides for the calling and holding of an election to elect a charter board with power to revise the charter of the city of Tampa, for the registration of voters to vote in said election, and for the submission of the charter to the city of Tampa as so revised to the people for adoption or rejection.

Pursuant to the provisions of said chapter 13455, Special Acts 1927, a charter board was elected, the charter of the city of Tampa was revised as provided, and an election was held in said city at which the revised charter was submitted to the people for adoption or rejection December 6, 1927. The revised charter was approved and adopted. Officers to the city were subsequently elected in accordance with the provisions of the revised charter. Chapter 15537, Special Acts 1931, did nothing more than validate the election held on December 6, 1927, pursuant to the provisions of chapter 13455, Acts 1927 for the purpose of adopting the revised charter which was not a legislative charter, but, as heretofore stated, was one prepared by the charter board and approved by the people.

The charter of the city of Tampa, as thus adopted, was amended by chapter 15534, Special Acts 1931, chapter 16723, Special Acts 1933, and chapter 16730, Special Acts 1933, none of which are material to the case at bar. None of them attempt to repeal the general law affecting municipalities.

Chapter 6940, Acts 1915, authorizes 'cities and towns to amend their charters and to adopt charters for their government.' It applies to all cities and towns in the state whether created by general or local law, and section 5, now section 3131, Compiled General Laws of 1927, as amended, is the law under which the election in question is sought to be enforced. The latter section defines the circumstances under which the legislative authority of a city or town may call an election for the purpose of electing a charter board, the petition therefor to be signed by 20 per cent. of the qualified electors in the city, giving their names and addresses. On presentation of the petition to the legislative authority of the city or town, it shall be forthwith turned over to the clerk and registration officer, who shall at once proceed to compare the names thereon with those on the registration books. If the names are not sufficient to warrant the calling of an election, the petition shall be retained and additional petitions of the same character may be submitted, and when sufficient names have been received to authorize the election, they shall be canvassed and the results certified to the legislative department of the city. The legislative body of the city or town shall forthwith adopt a resolution calling and designating a day for holding the election which shall not be less than forty or more than ninety days from the adoption of the resolution.

Is so far as applicable to the city of Tampa, section 3131, Compiled General Laws of 1927, was repealed and superseded except as to provisions for calling charter board elections, by chapter 15533, Special Acts 1931, the title to which is as follows:

'An Act Regulating All Municipal Elections Held in the City of Tampa, Florida; Creating a Board of Elections for the City of Tampa, Florida, to Conduct, Hold, and Regulate All Municipal Elections, Including Primary Elections, Held in Said City; Fixing the Number of the Members of Said Board and Their Term of Office; Naming the Members of the First Board and Fixing Their Terms of Office; Prescribing the Qualifications, Duties, Powers, Compensation, and Method of Election of the Members of Said Board; Prescribing the Duties, and Powers of Said Board; Providing for and Regulating Electors and Elections in Said City; Defining Political Parties in Said City; Providing for the Nomination of All Candidates for All Elective Municipal Offices in Said City by All Political Parties in Said City; and Repealing All Laws and All Parts of Laws in Conflict With This Act.'

Inspection of sections 12, 13, 14, 15, 16, 27, 28, 29, and 30, will readily disclose that the purpose of this act was to provide a new and different machinery for holding all municipal elections including charter elections in the city of Tampa from that provided in the general law. Section 14 of said act being as follows:

'All powers and duties imposed upon and vested in the Mayor, the Board of Representatives, and the City Clerk by the general and the special laws of the State of Florida applicable to the City, the charter of the City, and the ordinances of the City passed in pursuance of said laws, with reference to the registration of voters, conducting, holding, and regulating of municipal elections, be and they are hereby imposed upon and vested in the Board of Elections created by this Act, and it shall perform and exercise all such duties and powers.'

It will thus be seen that chapter 6940, Acts 1915, is as yet not affected by the 1934 Amendment to section 24 of article 3 of the Constitution, nor is it affected by chapter 13455 Special Acts 1927,...