State Ex Rel. Gibbs v. Couch
| Decision Date | 19 July 1939 |
| Parties | STATE ex rel. GIBBS, Atty. Gen. v. COUCH et al. |
| Court | Florida Supreme Court |
Rehearing Denied Aug. 11, 1939.
En Banc.
Original quo warranto proceeding by the State of Florida, on the relation of George Couper Gibbs, Attorney General of the State of Florida, against Frank v. B. Couch and others challenging the authority of the City Commissioners of the City of Daytona Beach to continue to hold office after the enactment of House Boll No. 1974 at the regular 1939 session of the Florida Legislature.
Motion to quash rule nisi denied and motion to strike answer sustained.
The constitutional provision authorizing Legislature to provide for the election by the people or appointment by the Governor of all state and county officers not otherwise provided for by the Constitution was not inconsistent with constitutional provision conferring upon the Legislature the power to establish and to abolish municipalities and to provide for their government and to prescribe their jurisdiction and powers and to alter or amend the same at any time. F.S.A.Const. art. 8, § 8; art. 3, § 27.
George Couper Gibbs, Atty. Gen., H. E. Carter, Asst Atty. Gen., C. L. Waller, of Tallahassee, and Philip D. Beall, of Pensacola, for relator.
B. F. Brass and Green & West, all of Daytona Beach, and Mitchell D. Price and Charles W. Zaring, both of Miami, for respondents.
This is an original proceeding in quo warranto filed by the Attorney General challenging the authority of the City Commissioners of the City of Daytona Beach prior to the enactment of House Bill No. 1974 at the regular session of 1939 of the Florida Legislature, to continue to hold office and exercise the duties and privileges thereof after House Boll No. 1974, supra, had become effective and a new City Commission had been appointed by the Governor, pursuant to the provisions of the said Act.
The case is before us on motion to quash the rule nisi heretofore issued and on motion to strike, which we will consider as demurrer to the answer filed by certain of the Commissioners along with motion to quash.
Two major questions are presented. The first is, whether or not the legislative Act was passed and adopted by the Legislature in compliance with the provisions of Section 21, Article III of the Constitution of Florida, as amended at the general election in 1938.
The second question is, whether or not the legislature had the power to enact the provisions included in the bill.
The pertinent part of Section 21, Article III of the Constitution, as amended, is:
The contention is that the Senate Journal did not sufficiently recite the fact that the required notice was established in the legislature.
The Journal of the House of Representatives of May 30, 1939, on page 4, shows the following:
'Introduction of House Bills and Joint Resolutions
'By Messrs. Henderson and Gillespie of Volusia----
'A bill to be entitled An Act to abolish the present municipality of the City of Daytona Beach, in the County of Volusia and State of Florida, and to create, establish, organize a municipality to be known and designated as the City of Daytona Beach in Volusia County, State of Florida. To define its territorial boundaries and to provide for its government, jurisdiction, powers, franchises and privileges: and to provide for the appointment by the Governor of the first members of the City Commission.
'Which bill was read the first time by its title and had attached to same when introduced in the House of Representatives, the following proof of publication, which was ordered to be entered in full upon the Journal of the House of Representatives:
'Affidavit of Proof of Publication
'State of Florida
'County of Volusia.
'Before me, the undersigned authority, personally appeared G. P. Weisiger, who, on oath does solemnly swear that he has knowledge of the matters stated herein; that a notice stating the substance of a contemplated law or proposed bill relating to: the abolition of the present municipality of the city of Daytona Beach, in the County of Volusia and State of Florida, and to create, establish and organize a municipality to be known and designated as The City of Daytona Beach in Volusia County, State of Florida; to define its territorial boundaries; to provide for its government, jurisdiction powers, franchises, privileges; and to provide for the appointment of the first members of the City Commission, has been published at least thirty (30) days prior to this date by being printed in the issue of April 18, 1939, of the Daytona Beach Sun Record, a newspaper published in Volusia County, Florida, where the matter to be affected by the contemplated law is situate; that a copy of the notice that has been published, as aforesaid, and also his affidavit of proof of publication are attached to the proposed bill or contemplated law, and such copy of the notice so attached is by reference made a part of this affidavit.
'C. P. Weisiger.
'Sworn to and subscribed before me this 18th day of April A. D. 1939.
'Notary Public, State of Florida at Large
'My Commission expires Dec. 17, 1941.
'And the House of Representatives thereupon determined that the notice and evidence thereof required by Section 21 of Article III of the Constitution, has been established in this Legislature.
'House Bill No. 1974 was placed on the Calendar of Local Bills on second reading without reference.'
The House Journal shows the lawful passage of the bill.
The Senate Journal of May 31, 1939, on page 9 shows House Messages transmitted to the Senate including House Bill 1974, in the following language:
'The following Message from the House of Representatives was received and read:
'Tallahassee, Florida,
May 31, 1939.
'Hon. J. Turner Butler,
'President of the Senate.
'Sir:
'I am directed by the House of Representatives to inform the Senate that the House of Representatives has passed:
'By Messrs. Henderson and Gillespie of Volusia----
'A Bill to be entitled an Act to abolish the present municipality of the City of Daytona Beach, in the County of Volusia and State of Florida, and to create, establish and organize a municipality to be known and designated as the City of Daytona Beach in Volusia County, State of Florida, to define its territorial boundaries and to provide for its government, jurisdiction, powers, franchises and privileges; and to provide for the approintment by the Governor of the first members of the City Commission.
'Proof of publication attached.
'And respectfully requests the concurrence of the Senate therein.
'Chief Clerk, House of Representatives.' (Italics supplied)
The Senate Journal shows that House Bill No. 1974 contained in the above stated message from the House was passed.
The House Journal of May 31, pages 34 and 35, contains the following:
'Messages from the Senate
'The following message from the Senate was received and read:
'Senate Chamber
'Tallahassee, Fla., May 31, 1939.
'Sir:
'I am directed by the Senate to inform the House of Representatives that the Senate has passed:
'Very respectfully,
'Secretary of the Senate.
'And House Bill No. 1974 contained in the above message, was read the first time by its title and was referred to the Committee on Enrolled Bills.'
The records show that the bill was signed by the officers of the House of Representatives and of the Senate, was transmitted to the Governor and was transmitted by him to the office of the Secretary of State without his approval. The bill as filed in the office of the Secretary of State, of which this and other courts, take judicial cognizance, had attached thereto proof of publication...
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