Town of Enterprise v. State

• Decision Date: 16 March 1892
• Citation: 29 Fla. 128,10 So. 740
• Parties: TOWN OF ENTERPRISE et al. v. STATE ex rel. ATTORNEY GENERAL.
• Court: Florida Supreme Court

10 So. 740

29 Fla. 128

TOWN OF ENTERPRISE et al. v. STATE ex rel. ATTORNEY GENERAL.

Florida Supreme Court

March 16, 1892

Error to circuit court, Volusia county; J. D. BROOME, Judge.

Quo warranto proceedings on the relation of the attorney general against T. B. Biddulph, S. S. Bennett, Andrew Harold, S. A. Donald, George H. Count, and William James to test their right to be a corporation under the name of the 'Town of Enterprise.' From a judgment of ouster respondents bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. Jurisdiction of informations in the nature of quo warranto in conferred on circuit courts by section 11, art. 5, Const 1885.

2. Where usurpation of a public office or a franchise is claimed by the state, and an information in the nature of a quo warranto is filed by the attorney general to test the right to hold such office or enjoy such franchise, it is only necessary to allege generally that the person holding the office or enjoying the franchise does so without lawful authority, and in such a case, as against the state, it devolves upon such person to show a complete legal right to enjoy the privileges in question; but if the information states the facts upon which the charge of usurpation is based, and those facts show a clear legal right in respondent, it will be insufficient.

3. The qualified inhabitants of a hamlet, village, or town in this state cannot, under the general acts for the incorporation of cities and towns, organize and maintain two municipal governments in the same space at the same time.

4. Under such incorporating acts it is essential that a municipal corporation have ascertained and well-defined boundaries, and where the metes and bounds of such a corporation utterly fail to inclose any area, and are so uncertain as to make it impossible to determine the territory of such corporation, an organization and municipal government thereunder will be a nullity.

5. The inhabitants of a hamlet, village, or town, recognized as a community of persons authorized to form a municipal government under the general act for the incorporation of cities and towns, in force in this state, include persons living on contriguous territory; and, where an attempt is made to incorporate two distinct detached tracts of land as corporate territory under one government, it is unauthorized and void.

6. The rule is well settled that no collateral attack can be made upon the existence of a corporation. Such bodies derive their being from the sovereign will of the people; and, so long as the state does not question their existence, it cannot be controverted in a collateral way, on account of irregularities and defects in their organization.

7. In March, 1884, an attempt was made to incorporate the town of Enterprise, and a transcript of the proceedings was prepared and delivered to the clerk of the circuit court for record. The territory of the proposed incorporation, as appears by the record, consists of two detached and disconnected tracts of land distant from each other five miles. In 1885 the legislature provided (in chapter 3634) 'that all the acts done and performed in the organization and incorporation of the town of Enterprise, in the county of Volusia, are declared to be legal and valid in law and equity, and to be considered valid and binding by the laws of the state of Florida.' Held, that said attempted organization was not in compliance with the general law in reference to the formation of municipal governments, and said special act, in so far as it seeks to validate the organization of said town is in conflict with the constitutional requirement, in the constitution of 1868, of uniformity in the organization of municipal corporations.

8. In proceedings in the nature of quo warranto instituted on behalf of the state to test the right to hold an office or enjoy a franchise, great particularity is required in the answer or plea, and a complete right must be shown on the part of the respondent, but on demurrer a bad plea is a good answer to a defective information.

COUNSEL

John W. Price, for plaintiffs in error.

OPINION

The other facts fully appear in the following statement by MABRY J.:

This is a proceeding by information, in the nature of a quo warranto, instituted in behalf of the state of Florida by the attorney general, in the seventh judicial circuit, for Volusia county. The information states that T B. Biddulph, S. S. Bennett, S. A. Donald, Andrew Harold, William James, and George H. Count,--the said Biddulph as mayor, and the said Bennett, Donald, Harold, James, and Count as aldermen,--and others, have usurped, and still do usurp, to be a corporation, under the corporate name of the 'Town of Enterprise,' in the county of Volusia and state of Florida, as follows: That on the 1st day of February A. D. 1877, the town of Enterprise, with certain metes and bounds, (which are set out in the information,) was incorporated under the name of the 'Town of Enterprise,' as will appear by a certified copy of the record of the transcript of the proceedings of said incorporation filed with the clerk of the circuit court of Volusia county, and by him duly entered upon the public records of said county, and which copy of the record is attached as Exhibit A to the information.

Further, that on the 24th day of March, A. D. 1884, there having been no surrender of the aforesaid corporate franchise, and no dissolution of said corporation, the town of Enterprise was again incorporated with the following metes and bounds, towit. Sections 1 and 2 in township 19, and sections 35 and 36 in township 18, in range 30 S. and E.; section 6, in township 18, in range 31 S. and E., --Volusia county, Fla.; that a fair and complete transcript of the proceedings was prepared by the clerk of said town, embodying the notice by which the meeting was convened to form said corporation, the number of qualified electors present, the seal, territorial limits of said incorporation, and the names of the officers-elect, to which the mayor and aldermen attached their signatures, attested by the clerk with said seal, and was filed with the clerk of the circuit court for said county, and by him marked 'Filed,' but before being recorded was lost, destroyed, or abstracted from said office by some one unknown to relator, and cannot now be found; that under each of said incorporations elections were held and officers elected, duly sworn and qualified, and entered upon and discharged the duties of their respective offices; that the said two incorporations, in succession, owing to factional disturbances and petty grievances, were, without any warrant of authority or process of law, ignored, and on the 14th day of May, A. D. 1885, a third incorporation of the town of Enterprise was formed and organized, or attempted to be, the last and third one further contracting and changing the corporate limits, and leaving without the boundaries of said incorporation citizens and qualified voters, who, under the preceding incorporations, lived within the limits of said town; that, not withstanding such change and contraction of the limits as aforesaid, no action was taken to that end, as provided by law, but the proceedings had and taken in the premises were as though a new or original incorporation was being formed, as will appear by a certified copy of the transcript of the proceedings thereof attached as Exhibit B to the information. The description of the territory of the third incorporation as embodied in the notice for the meeting to incorporate is as follows: Commencing on Lake Monroe, at west line of lot 3, section 1, township 19, of range 30 E.; and running north on said line to township line dividing townships 18 and 19; thence east, on said line, to the center of half-mile post, in section 5, township 19 south, of range 31 east; thence south, to Lake Monroe; and thence westerly, on the margin of Lake Monroe, to the place of beginning.

That under the last and third incorporation, or pretended incorporation, the said T. B. Biddulph, on the --- day of May, A. D. 1887, was elected, or pretended to be elected, mayor of said incorporation, or pretended incorporation, of the town of Enterprise, and is now acting as such mayor, and S. S. Bennett, S. A. Donald, Andrew Harold, William James, and George H. Count, on the --- day of May, A. D. 1887, were elected, or pretended to be elected, aldermen of said town, and are now acting as such aldermen, and they, said Biddulph, Bennett, Donald, Harold, James, and Count, acting as such mayor and aldermen, respectively, and others residing in said town, do and perform and exercise all the liberties and privileges and franchises of incorporated towns usurping to be an incorporation, to the great damage, prejudice, and wrong of the said state of Florida; wherefore due process of law is prayed against the town of Enterprise, and said mayor and aldermen, and that they be required to answer by what warrant they claim to have, use, and enjoy the liberties, franchises, and privileges aforesaid. Process of subpoena was awarded by the court against T. B. Biddulph, as mayor of the town of Enterprise, and S. S. Bennett, S. A. Donald, Andrew Harold, William James, and George H. Count, as the town council of the town of Enterprise, to answer said information.

Respondents demurred to the said information on the following grounds:

(1) 'That said information does not show that either of said incorporations were legally made or formed.'

(2) 'That said information does show that said two incorporations were illegal, and never had any legal existence.'

(3) 'That the existence of an illegal and void incorporation does not prevent or preclude the citizens making and forming a legal incorporation under and...