State v. County Commissioners of Duval County

• Decision Date: 21 November 1887
• Citation: 3 So. 193,23 Fla. 483
• Court: Florida Supreme Court
• Parties: STATE ex rel. McQUAID and others v. COUNTY COM'RS OF DUVAL CO.

3 So. 193

23 Fla. 483

STATE ex rel. McQUAID and others v. COUNTY COM'RS OF DUVAL CO.

Florida Supreme Court

November 21, 1887

Mandamus. Motion to quash alternative writ.

Syllabus by the Court

SYLLABUS

Special or local legislation as to cities and towns, under section 8 of article 8 of the constitution, is not controlled by the proviso to section 21 of article 3, but may be enacted at any session of the legislature, and without the notice required by such proviso.

The lientenant governor's office, as it existed under the constitution of 1868, is continued by the present constitution for at least the balance of the term of such office, and he was authorized to preside over the senate, at its session in 1887.

When an act establishes a municipality covering territory occupied by two existing municipalities and by part of a third municipality, and the title is an act to establish the new municipality, (stating its name,) and to provide for its government and prescribe its jurisdiction and powers, a repeal of the existing charters is matter properly connected with the subject expressed in the title of the act, within the meaning of section 16 of article 3 of the constitution.

Where the title of an act designates it as one amending another act, but such act in fact amends only one section of the latter statute, the title is sufficient under section 16 of article 3 of the constitution.

The fact that there are two sections of an amendatory act that expressly profess to amend one section of another statute does not affect the validity of such amendatory sections. Though inartificial legislation, it but substitutes matter in the form of two sections for matter in the form of one section.

Where a section, expressly amendatory of another section of a statute, purports to set out in full all it is intended to contain, any matter which was in the original section, but is not in the amendatory section, is repealed by the omission.

COUNSEL H. Bisbee, Louis I. Fleming, and Fletcher &amp Wurts, for plaintiff.

Hartridge & Young, for defendants.

OPINION

RANEY J.

This case is one of mandamus to compel the county commissioners of Duval county to assemble and perform certain duties preparatory to an election to be held in the city of Jacksonville on the first Tuesday in the coming month, under the provisions of statutes passed at the last session of the legislature establishing such city.

The defendants moved to quash the writ, and the grounds of the motion are as follows: (1) That the statutes are special and local legislation, and no notice has been given of intention to apply for their enactment as required by the twenty-first section of article 3 of the constitution; (2) that, as the lieutenant governor presided over the senate and signed these acts, they are void; (3) that the title of each is insufficient under the constitution; and (4) that, as certain provisions of a section of the original act which was amended by the other act, are omitted from the latter, the duties of which performance is sought are not imposed by the acts upon the defendants.

We are urged from sources which must be deemed representative of the welfare of Jacksonville to pass upon the several questions raised, and feel that it is proper we should do so, and will consider them in the order stated.

The twentieth section of the third or legislative article of the constitution provides that the legislature 'shall not pass special or local laws in any of the following enumerated cases, that is to say: Regulating the jurisdiction and duties of any class of officers, except municipal officers; * * * regulating the practice of courts of justice, except municipal courts; * * *for assessment and collection of taxes for state andcounty purposes; for opening and conducting elections for state and county officers, and for designating the places of voting; regulating the fees of officers of the state and county.' There are other cases 'enumerated' in this section; but it is not necessary to reiterate them here.

The twenty-first section of the same article is as follows: 'In all cases enumerated in the preceding section, all laws shall be general and of uniform operation throughout the state, but in all cases not enumerated or excepted in that section, the legislature may pass special or local laws: provided, that no local or special bill shall be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be effected may be situated; which notice shall state the substance of the contemplated law, and shall be published at least sixty days prior to the introduction into the legislature of such bill, and in the manner to be provided by law. The evidence that such notice has been published shall beestablished in the legislature before such bill shall be passed.'

The purpose of section 20 is to prohibit the enactment of any special or local law upon any of the classes of subjects therein 'enumerated.' It is a restraint upon the legislative power. In view of the fact that the legislative power is free to enact any laws that do not fall within some restraint imposed upon it by the constitution, it is clear that, if this section stood alone, there would be no restraint upon the power to pass special or local laws in any case to which its prohibitions do not apply. But for the exceptions made in this section as to municipal officers and like courts, of course no special or local law could be passed regulating the jurisdiction and duties of the former or the practice of the latter.

Section 21, down to the proviso, is a mere declaration of the original and inherent legislative power as to special or local legislation on all subjects or in all cases to which the restraint of section 20 is not applicable. The proviso was intended as a limitation upon the original or inherent power standing or left unaffected by section 20. Being in the shape of a proviso, this limitation is to be construed strictly. A proviso to a statute is to be so construed as to take no case out of the enacting clause which is not fairly within the terms of the proviso. Its office is to except something from the enacting clause, or to restrain its generality. Minis v. U. S., 15 Pet. 423; Wyman v. Southard, 10 Wheat. 1; Huidekoper's Lessee v. Burrus, 1 Wash. C. C. 119. No case to which section 20 does not apply is to be taken by the proviso to section 21 out of the original and inherent legislative power so positively affirmed by the first part of section 21, unless such case is fairly within the terms of the proviso. It requires but slight consideration to perceive that there are many cases of special legislation that are not local; and we confess an inability to discover that the proviso applies to any special legislation that is not also local. It is only where the matter or thing to be affected is situated in some locality that the proviso is operative.

Section 24 of the same article provides that 'the legislature shall establish a uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws are provided by the legislature that may be inconsistent therewith.' If this and the preceding sections were all there is to be found in our constitution upon the subject of special or local laws and municipalities, it would be clear that the purpose and intention of the framers of that instrument were that the proviso to section 21 would control special legislation incorporating a city or town, or excepting an existing municipality from the general and uniform system of laws governing the class of municipalities to which it might belong.

In the eighth article of the instrument entitled 'Cities and Towns,' is to be found the following, as constituting its eighth section: '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. When any municipality shall be abolished, provision shall be made for its creditors.'

It is contended that section 24 of the legislative article set forth above classifies special municipal charters for particular cities or towns as local or special laws within the meaning of the constitution. It can hardly be denied that they are special and local laws, both in fact as well as in contradistinction to the uniform system of municipal government contemplated by the twenty-fourth section just mentioned. The admission, however, that a statute incorporating a particular municipality and providing for its government, prescribing its jurisdiction and powers, and regulating the jurisdiction and duties of its officers and the practice of its courts, is both a special and a local law is not conclusive of the question whether or not, in view of section 8 of article 8, it is such a local law as the proviso to section 21 of article 3 applies to. This proviso is general, in so far as it is applicable; and it applies to matters or things having a localstatus as indicated above, and covers special legislation in the cases of cities and towns; unless they are excepted from it by some other part of the constitution. The effect of the proviso construed simply in connection with sections 20 and 24 and the preceding part of section 21, is that the legislature cannot, by special law, establish a particular municipality, and provide for its government, and prescribe its jurisdiction and powers, and alter or amend the same, at any time, but only at a session prior to which 60 days' notice may have been given that application for such special legislation will be made. Under the doctrine fully established in this court, that cities...