State v. Dillon

• Decision Date: 05 June 1900
• Citation: 42 Fla. 95,28 So. 781
• Parties: STATE ex rel. LAMAR, Atty Gen. v. DILLON et al.
• Court: Florida Supreme Court

28 So. 781

42 Fla. 95

STATE ex rel. LAMAR, Atty Gen. v. DILLON et al.

Florida Supreme Court

June 5, 1900

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Quo warranto, on the relation of W. B. Lamar, attorney general against Benjamin F. Dillon and others. A demurrer to the information having been sustained, the relator brings error. Affirmed.

On November 8, 1899, an information in the nature of a quo warranto was filed by leave of court in the circuit court of Duval county alleging that: 'William B. Lamar, attorney general of the state of Florida, who sues for the said state in this behalf, comes here before the judge of the circuit court of the Fourth judicial circuit of the state of Florida in and for Duval county, and in behalf of said state gives the said court to understand and be informed that Benjamin F Dillon, George R. Foster, Thomas W. Roby, Philip Walter, A Wm. Cockrell, Jr., Leopold Furchgott, Bion H. Barnett Alexander B. Campbell, and Jacob R. Tysen, to wit, in the municipality of Jacksonville, in Duval county, in said state, for the space of one year now last past and upwards, having used enjoyed, exercised, and performed, and still do use, enjoy, exercise, and perform, without warrant or authority, in violation of the existing constitution of said state, the franchise, functions, and powers of the office of the board of trustees of the waterworks and improvement bonds of the city of Jacksonville, and have actually assumed and exercised exclusive power and control over the construction, operation, supervision, and repairing of the waterworks, sewers, and fire department of said city, and all buildings and grounds used therefor, and over the organization and operation of the same, and have actually assumed and exercised exclusive power to employ such chiefs or heads of departments, firemen, engineers, clerks, superintendents, laborers, and other persons as said board deem necessary for the execution of its duties, or supposed duties, and have actually made and entered into contracts in the carrying out and furtherance of said duties and functions or supposed duties and functions; which said office and the franchise and functions and powers thereof the said Benjamin F. Dillon, George R. Foster, Thomas W. Roby, Philip Walter, A. Wm. Cockrell, Jr., Leopold Furchgott, Bion H. Barnett, Alexander B. Campbell, and Jacob R. Tysen during all the time aforesaid usurped, and still do usurp, upon the people of said municipality and state aforesaid, to their great damage and prejudice.

'And the said attorney general of said state, who sues as aforesaid, further gives said court to understand and be informed that the said Benjamin F. Dillon, George R. Foster, Thomas W. Roby,, Philip Walter, A. Wm. Cockrell, Jr., Leopold Furchgott, Bion H. Barnett, Alexander B. Campbell, and Jacob R. Tysen, to wit, in the municipality of Jacksonville, in Duval county, in said state, for the space of four months now last past and upwards, have used, enjoyed, exercised, and performed, and still do use, enjoy, exercise, and perform, without warrant or authority, in violation of the existing constitution of said state, the franchise, function, and powers of the office of the board of trustees for the waterworks and improvement bonds of the city of Jacksonville, and have actually assumed and exercised the exclusive power to appoint, subject to approval by the affirmative vote of two-thirds of the members of the city council, all officers of said city not elected by the electors (except officers properly belonging to the department of the board of public works of said city) and all members of the police force, and have actually assumed and exercised the control and regulation of the organization, number, and compensation of members of the police force and fire department of said city, and have actually assumed charge, management, and control of the electric light plant of said city, and have assumed and exercised other functions, powers, and duties conferred upon said office, or supposed to be conferred thereupon; which said offices and franchises and functions and powers thereof the said Benjamin F. Dillon, George R. Foster, Thomas W. Roby, Philip Walter, A. Wm. Cockrell, Jr., Leopold Furchgott, Bion H. Barnett, Alexander B. Campbell, and Jacob R. Tysen, during all the period of the time aforesaid usurped, and still do usurp, upon the people of said municipality and state aforesaid, to their great damage and prejudice.

'And the said attorney general of said state, who prosecutes as aforesaid, further gives said court to understand and be informed that the said Benjamin F. Dillon, George R. Foster, Thomas W. Roby, Philip Walter, A. Wm. Cockrell, Jr., Leopold Furchgott, Bion H. Barnett, Alexander B. Campbell, and Jacob R. Tysen, to wit, in the municipality, county, and state aforesaid, during the periods of time aforesaid, have usurped, and still do usurp, said office aforesaid, and the franchises and functions and powers thereof, as aforesaid, claiming warrant and authority therefor under and by virtue of an alleged ordinance of said municipality, which is in words and figures as follows, to wit:

"An ordinance to prescribe the powers and duties and terms of office of the trustees of the waterworks and improvements bonds of the city of Jacksonville, and providing for the submission of this ordinance to the qualified electors of the city for their approval at an election.

"Be it ordained by the mayor and city council of the city of Jacksonville:

"Section 1. That the board of trustees of the waterworks and improvement bonds of the city of Jacksonville, from and after the passage of this ordinance by the affirmative vote of not less than three-fifths of all the members of the city council, and its approval by the mayor, and its subsequent approval by the affirmative vote of a majority of the votes cast by the qualified electors of the city at an election hereinafter provided for, in the manner hereinafter provided, shall constitute and be one of the executive boards of the city government, with the corporate authority, powers, and duties as herein provided.

"Sec. 2. George R. Foster, A. Wm. Cockrell Jr., Thomas McMurray, W. B. Young, A. B. Campbell, J. R. Tysen, L. Furchgott, B. R. Powell, and J. R. Campbell, and their successors in office, shall constitute said board of trustees of the waterworks and improvements bonds of the city of Jacksonville, hereinafter mentioned and referred to as 'Bond Trustees,' and shall hold office for a term of nine years, except that the first board shall hold office as follows: George R. Foster, nine years, Thomas McMurray, eight years, W. B. Young, seven years, A. B. Campbell, six years, J. R. Tysen, five years, L. Furchgott, four years, B. R. Powell, three years, J. R. Campbell, two years, and A. Wm. Cockrell, Jr., one year, from and after the 17th day of October, A. D 1893, and until their successors shall be elected and qualified. The city council shall at its first regular meeting in October, or as soon thereafter as practicable, in each year elect one member of said board of bond trustees to fill the vacancies as they occur, and in case of vacancy other than by expiration of term the city council shall, as soon as practicable after such vacancy occurs, fill the vacancy for the unexpired term. A majority of all the members of the city council shall be required to elect a member of said board. Said board shall have the right to make its own rules, and to elect its own chairman and secretary and other officers, and to remove or change the same by a vote of a majority of said trustees at any time. All contracts nd other papers necessary to be signed by said board shall be signed by the chairman and secretary, and attested by the seal of said board.

"Sec. 3. Said trustees shall receive no compensation except that said board may, by resolution approved by a city ordinance, fix a compensation to be paid to its chairman or secretary or both, for services rendered in such capacity, and said board of trustees shall submit to the city council such reports, and at such times, as the city council may by ordinance require.

"Sec. 4. Five members shall constitute a quorum for the transaction of business. The ayes and noes shall be called and entered upon a journal upon the passage of every resolution or order for the expenditure of money. Said board shall by rules provide for the holding of regular and called meetings. Members of the board shall have a right to take part in all proceedings and deliberations of the city council on all questions relating to matters under their charge, but without the right to vote.

"Sec. 5. The board of bond trustees shall not elect, or employ, or appoint, or contract with the mayor or any councilman or with any of the city officials.

"Sec. 6. The board shall have exclusive power to employ such chiefs or heads of departments, foremen, engineers, clerks, superintendents, laborers, and other persons as it may deem necessary for the execution of its duties, and to fix their compensation, and that any of them may be discharged at any time by the board of bond trustees at its discretion.

"Sec. 7. The board of bond trustees shall have exclusive power and control over the construction, operation, supervision and repairing of the waterworks, sewers, and fire department of the city, and all buildings and grounds used therefor, and over the organization and operation of the same, with the same powers, duties, and control over those subject-matters as now possessed or exercised by the board of public works; and all the provisions of the city charter and ordinances regulating the performances of those duties by said board shall equally apply to the performance of duties

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