State Ex Rel. Landis v. Prevatt
| Decision Date | 02 May 1933 |
| Citation | 148 So. 578,110 Fla. 29 |
| Parties | STATE ex rel. LANDIS, Atty. Gen. v. PREVATT et al. |
| Court | Florida Supreme Court |
En Banc.
Original action in the nature of quo warranto by the State of Florida on the relation of Cary D. Landis, as Attorney General against A. B. Prevatt and others. On demurrer and motion to quash information and on motion to strike part of information.
Demurrer and motion to quash overruled and denied, and motion to strike granted.
COUNSEL Cary D. Landis, Atty. Gen., and W. J. Gardiner of Daytona Beach, for relator.
Hull Landis & Whitehair, of De Land, for respondents.
This is an action in the nature of quo warranto, of original jurisdiction in this court, the information being filed by the Attorney General, and brought against A. B. Prevatt, J. G. Dreka, Lillian Francis Nordum, W. E. Swope, and G. A. Tyler, to test the right of the defendants to be a body corporate, under the name of 'Board of Trustees of Volusia County Fair,' and as such to exercise the liberties, franchises, and privileges claimed under and by virtue of chapter 15560, Sp. Acts of 1931.
The information charges that said defendants claim to be a body corporate under the name of 'Board of Trustees of Volusia County Fair,' assume to be the trustees of such board, and as such perform and exercise the liberties, privileges, and franchises granted by the provisions of chapter 15560 of the 1931 Special Laws of Florida; that said chapter is unconstitutional and void; and that said defendants, claiming and attempting to exercise such functions, do so without lawful authority. Further, it is charged in said information that, under the provisions of said chapter 15560, a tax was assessed and levied upon all taxable property in Volusia county for the year 1931, collected by the county tax collector, and paid to said defendants, the sum so collected and paid amounting to $15,248.78, and that by reason of the unconstitutionality of said act, the sum so collected and delivered to the defendants should be forthwith paid to Volusia county.
The information prays that said defendants be required to answer by what warrant or authority they claim to exercise said offices, franchises, liberties, and powers; that they render a due accounting of all moneys in their possession, acquired by virtue of the taxes levied and collected and paid to them as aforesaid; and that said tax moneys be forthwith paid to Volusia county.
To this information the defendants have demurred, and moved to quash the writ issued thereon upon substantially the same grounds, and have also moved to strike that part of the information relating to the assessment, levy, and collection of the taxes designated in the information, and therein and thereby sought to be paid to Volusia county, as well, also, that part of the prayer of the information seeking an accounting of the amount of money received by defendants from said taxes, and requiring them to pay the same to Volusia county.
The questions for determination presented by the demurrer and motion to quash, as stated by counsel for defendants, are:
1. Does the information show on its face that defendants act as Trustees of the Volusia Fair under and by authority of an invalid act of the Legislature?
2. Does the information show on its face that the real purpose of the proceeding is to compel an accounting, and to obtain a judgment for the payment of money? And,
3. It is shown by the information that the money alleged therein to be held by the defendants should be paid to Volusia county, and can the question of law as to what disposition should be made of such money be properly litigated in a quo warranto action?
One of the grounds upon which the sufficiency of the information is attacked is that the usurpation of the liberties, franchises, and privileges claimed is specifically based, in the information, upon the unconstitutionality of chapter 15560 of the Special Laws of Florida, purporting to create the Board of Trustees of Volusia County Fair, and under which, alone, as it is alleged, the respondents claim to derive their authority to exercise such liberties, franchises, and privileges. The information, in addition to the general allegations that respondent exercise the stated liberties, franchises, and privileges without lawful authority, specifies particularly that they are so exercised under and by virtue of chapter 15560 of the 1931 Special Laws of Florida, and that said chapter is unconstitutional, no grounds of unconstitutionality being alleged, nor is any particular provision of the Constitution designated as being violated.
While it is the general rule, as stated in Neisel v. Moran, 80 Fla. 98, 85 So. 346, 348, that 'those who assert the unconstitutionality of a statute have the burden of showing that beyond all reasonable doubt the statute inevitably conflicts with some designated provision of the Constitution,' and while it is also true, as stated by the court in State ex rel. Gillespie v. Thursby (Fla.) 139 So. 372, 373, that 'every law found on the statute books is presumptively valid,' it is also true that the Constitution and the public statutes of the state are judicially recognized by the courts of the state, A. C. L. R. Co. v. State, 73 Fla. 609, 74 So. 595; and judicial notice of a statute includes authoritative decisions construing it, 23 C.J. 130.
A prior decision of this court, settling a question of law involved in the instant case, will be judicially noticed. 23 C.J. 114, par. 1921; State ex rel. Landis v. Duval County (Fla.) 141 So. 173.
In the case of Thursby v. Stewart, 103 Fla. 990, 138 So. 742, this court had before it for determination the question of the constitutionality of chapter 15560, Sp. Acts of 1931, under which it is alleged in the instant case the defendants claim to exercise the powers of trustees, as set out in the information. In the cited case it was held that so many of the vital and controlling provisions of the act are unconstitutional that by reason thereof the whole act is unconstitutional, and therefore the act fails in its entirety. Taking judicial notice of this decision by this court, we hold in the instant case that the presumption that the act in question is valid does not obtain, neither is it necessary that the unconstitutionality of the act be made otherwise to appear.
The information sufficiently charges that the defendants are claiming and exercising liberties, franchises, and...
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