State v. Town of Winter Park

• Decision Date: 15 April 1889
• Court: Florida Supreme Court
• Parties: STATE v. TOWN OF WINTER PARK et al.

5 So. 818

25 Fla. 371

STATE v. TOWN OF WINTER PARK et al.

Florida Supreme Court

April 15, 1889

Appeal from circuit court, Orange county.

Syllabus by the Court

SYLLABUS

The notice, 'for a period of not less than thirty days,' required by the general statute for the incorporation of cities and towns is complied with if there be 30 days given by excluding the first and including the last. Fractions of days are not considered, ordinarily; and the words quoted are held not to mean 30 clear days.

Where such notice has been given, the proceedings for incorporation may be had on the last day of the notice.

There cannot be two municipal corporations at the same time over the same territory; but this means two legal and effective corporations, and does not apply where there is a de facto corporation without right, and a corporation legally organized, but not in actual government till the former is ousted. The functions of the legal corporation are in abeyance until the ouster, and then come into full activity.

COUNSEL The Attorney General and Hammond & Jackson, for appellant.

Foster & Gunby, for appellees.

OPINION

MAXWELL J.

The information for quo warranto in this case was filed November 25, 1887, the substance of which is that the town of Winter Park assumes to be a municipal corporation, with authority to elect municipal officers, and has elected such officers though without warrant or charter for that purpose; and that therein the said town and officers have usurped liberties privileges, and franchises to which the privileges, and franchises to which they prejudice of the people, and against the peace and dignity of the state. For answer, the officers-elect say that they are the legal officers of the town, having been duly elected by the qualified electors thereof October 12, 1887, the said town being a corporation legally formed under the laws of the state, 'more than two-thirds of the qualified electors of the district proposed to be incorporated being there present, and notice as required by law having previously been given of the time and place of selecting such officers of such town, and the limits of such proposed corporation having been set out in such notice, as is required by law.' With their answer, and as a part of it, they file a certified copy of the proceedings of the meeting at which they were elected, claiming that by virtue of the notice and those proceedings it is shown that they have not usurped their offices, but hold the same lawfully. The notice in its substance (the sufficiency of its time to be hereafter considered) and the proceedings are in conformity with the general statute regarding the incorporation of cities and towns, which is as follows 'Whenever any community of persons shall desire to form a municipal corporation under the provisions of this act, they shall, for a period of not less than thirty days, cause to be published in some newspaper of the county, or by posting in three places of public resort in the immediate vicinage, a notice requiring all persons who are registered voters, residing within the proposed corporate limits, which shall be stated in this notice, to assemble at a certain time and place to select officers and organize a municipal government.' McClel. Dig. p. 245, § 2. To the answer there were two replications: First. That the defendants are not legal officers of the town, duly elected thereto, as alleged, and that notice was not given as required by law, but the notice set forth was posted only on the night of September 12th, at between 10 and 11 o'clock P. M., said notice calling upon the registered voters to meet at 2 o'clock P. M., October 12th following, wherefore it was not such as required by the statute, and the incorporation thereunder was illegal and void. Second. That said incorporation was illegal and void because the territory embraced therein had been previously incorporated on the 8th of March, 1887, as the town of Winter Park, and officers elected and installed for one year from that date. A demurrer to these replications was overruled, and afterwards the defendants rejoined--First. That the facts therein alleged are not true. Second. That the former corporation pleaded by plaintiff never had any legal existence; that on the 11th of April, 1887, the attorney general applied to the circuit court for quo warranto against said corporation; and that July 20, 1887, the referee appointed to hear the case gave judgment on demurrer against the corporation, and on the same day gave judgment on the issues in favor of the state, which said judgment is duly of record; and that plaintiff is estopped by said adjudication from pleading said former incorporation. Third. That the notice for the proposed incorporation was given 30 days prior to the incorporation, October 12, 1887. Issues were thereupon joined, and in this state of the pleadings, a referee having been appointed to hear and determine the case, it was decided in favor of the defendants, and judgment given accordingly. On the hearing it was agreed by counsel that the answer of the other defendants should be treated as also the answer of the town of Winter Park, and, further, that the following facts should be taken as true, and that the referee should base his judgment upon the law applicable thereto: '(1) That the notice of the proposed incorporation of the town of Winter Park was posted on the night of September 12, 1887, between the hours of 10 and 11 o'clock, said notice calling upon the registered voters to meet at 2 o'clock on October 12, 1887. (2) That in the former quo warranto proceedings against the first alleged incorporation of the town of Winter Park set up in the pleadings the decision of the referee sustaining the state's demurrer to the defendants' answer was rendered on July 20, 1887, but that the final judgment of ouster thereon was not entered until June 11, 1888.'

The referee held that the notice was for the 30 days required by the statute, though only 29 days and 14 hours intervened between the posting and the hour for the meeting; that the second incorporation, before the first had been dissolved by the judgment of ...