State v. City of Clearwater

• Decision Date: 17 June 1931
• Parties: STATE ex rel. DAVIS, Atty. Gen., et al. v. CITY OF CLEARWATER.
• Court: Florida Supreme Court

139 So. 377

106 Fla. 761

STATE ex rel. DAVIS, Atty. Gen., et al. v. CITY OF CLEARWATER.

Florida Supreme Court

June 17, 1931

On Rehearing Jan. 7, 1932.

En Banc.

Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.

Information in the nature of quo warranto by the State, on the relation of Fred H. Davis, Attorney General, and others, against the City of Clearwater, Pinellas County. To review a judgment dismissing the information, relators bring error.

Affirmed.

ELLIS J., dissenting.

COUNSEL

Macfarlane, Pettingill, Macfarlane & Fowler, of Tampa, for plaintiffs in error.

Jones &amp White, of Clearwater, for defendant in error.

OPINION

ADAMS Circuit Judge.

In 1925 the Legislature, by the enactment of chapter 10394, Special Acts, extended the municipal boundaries of the city of Clearwater to include a large additional area of territory contiguous to the then established corporate limits.

On March 23, 1927, almost two years after the passage of the act, the state of Florida, upon the relation of the Attorney General, with certain individuals as corelators filed in the circuit court of Pinellas county an information in the nature of quo warranto. One of the corelators afterward withdrew, and another died, leaving six to proceed with the suit. On April 23, 1928, more than a year after this information was filed, twenty-four other property owners in the annexed territory, filed their motion to be allowed to join in the suit as relators which motion was granted by the court. In the course of the proceedings two jury trials were had, each resulting in a mistrial. After this the parties, by their attorneys, agreed to submit the matter to the court for final determination upon the pleadings. The court held that respondent's answer to the information as amended set forth a full and complete defense, and thereupon rendered judgment dismissing the information. From that judgment this writ of error was taken.

In the information the relators alleged that the annexed territory was rural territory consisting of about 5,625 acres of land, of which about 858 acres was in citrus groves, and the balance was wild, uncultivated, unimproved, and unoccupied; that not more than sixty-one families, consisting of around two hundred people, resided in the territory. It is further alleged that the territory is sparsely settled and remotely situated from the city, and has not and will not receive any benefits from the city; that it will receive no police protection or other benefits, but will be burdened with city taxes, and that the taxes will be far greater than any benefit which can be or will be received from the city. It is further alleged that the land in citrus groves was cleared and developed solely for that purpose, and that the other land is wild and unimproved and produces but little revenue, and that the city taxes as a result of the annexation act will be such a burden as will practically amount to a confiscation of the property. It is further alleged that the city had ample territory already within its boundaries for all its needs, and that the complainants and other residents of the annexed territory prefer to remain out of the corporate limits. It is further alleged that the annexation act violates the constitutional rights of the relators and other property owners in the territory, and that it constituted a taking of their property and rights without due process of law, and that therefore the act was illegal, void, and unconstitutional, and that the exercise of jurisdiction over the territory by the city under the authority of the act was unlawful, and that the city should be ousted therefrom.

The respondent, in due course, filed its pleas or answer, by which it admitted the exercise of jurisdiction over the annexed territory, and justified it by virtue of the authority given by the annexation act, and that the act was valid and violated no constitutional provision. The answer then set forth that soon after the passage of the act the city began work in providing for improvements in the territory, and that, in the improvements made in the way of roads, streets, and sidewalks, and in the putting down of curbs, gutters, storm sewers, water mains, gas mains, fire hydrants, and extension of light and power lines through the territory, the city expended more than $800,000. The answer alleges that the public conveniences so provided are available for use and being used by the residents of the territory. It is further alleged that all the residents of the territory use Clearwater as a trade center; that they send their children to school there; that the busses transporting the children use the streets and roads provided for the territory; that the residents use the railroads entering and serving the city for their transportation needs; that they receive their mail through the city post office; that they attend the places of amusement in the city, and attend worship services in the churches of the city. It is further alleged that practically every home in the territory is within ten minutes' drive of the business section of the city, and that the most remote and illy situate house in the territory can be reached in fifteen minutes' drive. It is further alleged that the territory is serviced by telephone communication with the city, and that the fire or police department can reach any point on a paved road within six minutes after call, and can reach any point in the territory within twelve minutes after call, and that since the annexation the fire department has answered numerous calls within the territory, and saved more than $100,000 worth of property from destruction from fire. The answer further alleges that, in view of the enlargement of the corporate territory, the equipment of the fire department was substantially increased so as to provide efficient service. The answer concludes by claiming that the information is not well founded.

There can be no question as to the power of the Legislature to create, extend, limit, or regulate municipal boundaries, for that is granted by the Constitution, section 8, of article 8, which provides 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.' This provision, the court said in State v. City of Sarasota, 92 Fla. 563, 109 So. 473, 480 (text), 'necessarily implies the power to establish and alter boundaries or limits of territorial jurisdiction. And even if this were not implied from such language, the Legislature would have this power anyway, the same not being denied or limited elsewhere by the Constitution.' In the same case, 92 Fla. 563, 109 So. 473, text page 481, the court quoted with approval section 355, Dillon on Municipal Corporations (5th Ed.):

'Not only may the Legislature originally fix the limits of the corporation, but it may, unless specially restrained in the Constitution, subsequently annex, or authorize the annexation of, contiguous or other territory, and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory. And it is no constitutional objection to the exercise of this powof compulsory annexation that the property thus brought within the corporate limits will be subject to taxation * * * since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the Legislature to determine. The power to enlarge the boundaries of a municipality by the annexation of contiguous territory is an incident to the legislative power to create and to abolish municipalities at pleasure.'

The court also held in MacGuyer v. City of Tampa, 89 Fla. 138, 103 So. 418, that the above-quoted constitutional provision gave the Legislature 'full power' in the formation of municipalities, and that 'the express legislative authority to establish and to abolish municipalities and to prescribe their jurisdiction and powers obviously includes the power to annex territory to an existing municipality.'

By the above judicial enunciations, and others of similar character, this court recognizes the unquestioned power of the Legislature over municipalities, but it does not hold to the view that such power is unlimited and subject in no case to judicial review. On the contrary, this court holds to the view that, when a legislative act regarding a municipality contravenes a constitutional provision, it is subject to judicial review.

[4] In State v. City of Stuart, 97 Fla. 69, 120 So. 335, 341 (text), 64 A. L. R. 1307, the court stated that:

'The existence of the power is freely conceded. But is that power unlimited, and the exercise of it entirely beyond the reach of judicial review in any and all cases? The weight of authority in this country seems to answer this question in the affirmative, and to hold that the legislative power in this regard is practically plenary and unlimited, in the absence of express constitutional restriction thereof. We have no such express restriction in our Constitution.'

In discussing in above opinion this question, Justice Brown, by a course of reasoning, which in the humble opinion of this writer was based on a correct interpretation of law as applied with due regard for the fundamentals of the elements of common sense and principles of justice, concluded it would be unsound to hold that the power of the Legislature in such matters was supreme and not subject in any case to judicial review. See State v. City of Stuart, 97 Fla. 69, 120 So. 335, 346, text 346, 64 A. L. R. 1307.

'This theory of unlimited power in the passage of statutes establishing or extending...