Towns v. State

• Decision Date: 25 June 1931
• Citation: 135 So. 822,102 Fla. 188
• Court: Florida Supreme Court
• Parties: TOWNS et al., Sup'rs v. STATE ex rel. ATTORNEY GENERAL.

135 So. 822

102 Fla. 188

TOWNS et al., Sup'rs v. STATE ex rel. ATTORNEY GENERAL.

Florida Supreme Court

June 25, 1931

Error to Circuit Court, Sumter County; J. C. B. Koonce, Judge.

Quo warranto proceeding by State, on the relation of the Attorney General, against C. W. Towns, W. J. Hooten, and I. R Legette, as Supervisors of the Jumper Creek Drainage District, Sumter County. Judgment of ouster was entered, and respondents bring error.

Reversed with directions.

ELLIS J., dissenting.

COUNSEL Giles J. Patterson, of Jacksonville, and T. M Sellar, of Leesburg, for plaintiffs in error.

Gaines & Futch, of Leesburg, for defendant in error.

OPINION

JOHNSON Circuit Judge.

The Attorney General of the state of Florida, on behalf of the state, filed in the circuit court in and for Sumter county, an information in the nature of quo warranto against C. W. Towns, W. J. Hooten, and I. R. Legette, as supervisors of Jumper Creek drainage district, the said information reciting:

'And the Attorney General further gives the Court here to understand and to informed that the pretended corporation of Jumper Creek Drainage District has never been organized according to law, and is without legal existence, and that the statute and proceedings under which its corporate existence is claimed are unconstitutional and void, etc.'

To the said information the respondents filed a plea, or answer, in which they set out all the proceedings had and taken in the circuit court of Sumter county, Fla., in the creation of said Jumper Creek drainage district. Attached to this plea or answer were copies of all the papers and proceedings, including the decree of the judge of the circuit court decreeing Jumper Creek to be a public corporation under the laws of the state of Florida.

To this plea or answer the relator filed a demurrer. On a hearing the demurrer was sustained and a judgment and decree of ouster was made and entered. The case is now before this court on writ of error.

The questions involved in this case might be divided into three.

First. Is chapter 6458, Laws of Florida, Acts of 1913 (known as the General Drainage Law), same being section 1451 et seq. of Compiled General Laws of Florida 1927, unconstitutional and void in that it undertakes to delegate to the judiciary powers, duties, and functions that are purely legislative?

Second. Is the decree of the judge of the Thirteenth judicial circuit, decreeing Jumper Creek drainage district a public corporation, void in that said decree was not rendered by the judge of the Fifth judicial circuit in and for Sumter county; Sumter county at the time of the rendition of said decree being a part of the Fifth judicial circuit?

Third. Is chapter 9990, Laws of Florida, Sp. Acts 1923, validating and confirming all acts and proceedings taken in the creation and organization of Jumper Creek drainage district, etc., void in that the said act undertook to validate unconstitutional and void proceedings of the court?

The question of the constitutionality of chapter 6458, Laws of Florida, Acts of 1913 (General Drainage Law), was before this court in the case of McMullen v. Newmar Corporation, 129 So. 870, 876. In an able and comprehensive opinion by Mr. Justice Whitfield the constitutionality of said chapter 6458, Acts of 1913, was upheld by the court. It would serve no purpose to quote this opinion. The opinion in its reasoning and authorities cited speaks for itself.

In the case of McMullen v. Newmar Corporation, supra, the constitutionality of chapter 7973, Laws of Florida, Sp. Acts 1919, validating and confirming all acts and proceedings in the organization and creation of the Newmer Corporation, etc., was brought in question. In dealing with this question the court said: 'These statutory provisions render valid all the proceedings and all administrative and quasi judicial actions taken under chapter 6458, Acts 1913; it not appearing that any of such proceedings or actions taken conflict with organic law (see Pinellas Park Drainage District v. Kessler, 69 Fla. 558, 68 So. 668), or that the validating acts are not within the legislative power.' Under this decision and under the decisions of this court in the cases of Smith Bros., Inc., v. Williams (Fla.) 126 So. 367; Taylor et al. v. Tenn. & Fla. Land & Inv. Co., 71 Fla. 651, 72 So. 206; and Givens v. County of Hillsborough et al., 46 Fla. 502, 35 So. 88, 110 Am. St. Rep. 104; the constitutionality of chapter 9990, Laws of Fla. Sp. Acts 1923, validating and confirming all acts and proceedings in the organization and creation of Jumper Creek drainage district is upheld.

The decree of the judge of the Thirteenth judicial circuit declaring Jumper Creek drainage district to be a public corporation, on a showing that the judge of the Fifth judicial circuit was absent from his circuit, was not, and is not, void, and is not subject to collatteral attack. All acts and proceedings were validated by chapter 9990, Sp. Acts 1923. Further it is held that: 'If the court has acquired jurisdiction of the subject-matter and of the parties the judgment of decree entered is binding, even though erroneous because of irregularity of procedure, and that such judgment or decree will not be set aside, reversed, or modified except by appropriate direct appellate procedure.' Wilds v. State, 79 Fla. 575, 84 So. 664, 665; Torrey v. Bruner et al., 60 Fla. 365, 53 So. 337; and Lucy v. Dees et al., 59 Fla. 552, 52 So. 515.

For the reasons stated the judgment of ouster by the judge of the circuit court is reversed, with directions that the information be quashed.

WHITFIELD and BROWN, JJ., concur.

BUFORD, C.J., agrees to the conclusion.

TERRELL, J., not participating.

ELLIS, J., dissenting.

DISSENTING

ELLIS, J. (dissenting).

I am unable to agree to the conclusion reached in this case because I am of the opinion that chapter 6458, Act 1913, known as the general law, section 1451 et seq., Comp. Gen. Laws 1927, violates the Constitution of this state in letter and spirit. I think the language of the Attorney General used in this information in this cause in applying for a writ of quo warranto, viz., 'That the statute and proceeding under which its (the Drainage District) corporate existence is claimed are unconstitutional and void,' states a legal proposition which is capable of proof almost to the degree of demonstration.

CONCURRING

WHITFIELD J. (concurring).

In quo warranto proceedings the circuit court held that chapter 6458, Acts of 1913, section 1451(1098), Compiled General Laws 1927, the general drainage district law, is unconstitutional in that it attempts to convey to the judiciary powers which are purely legislative; that chapter 9990, Sp. Acts 1923, is unconstitutional in that it attempts to validate proceedings which the Legislature was without power to previously authorize; and that the decree organizing the Jumper Creek drainage district was rendered without jurisdiction or authority. A judgment of ouster was rendered and writ of error taken to this court.

Chapter 6458 provides that:

'The Board of Drainage Commissioners of this State,' a state agency, 'or a majority, either in numbers or in acreage, of the holders of any contiguous body of, wet or overflowed lands, or lands subject to overflow * * * may form a Drainage District for the purpose of having such lands reclaimed and protected from the effects of water, for sanitary or agricultural purposes, or when the same may be conducive to the public health, convenience or welfare, or of public utility or benefit, by drainage or otherwise,' the procedure being to 'sign a petition' stating 'the name of the proposed drainage district, and the number of years the same is to continue; the boundary lines of the proposed drainage district; the names so far as known, and the last known post office address of the owners of lands or other property in said district, together with a general description of the lands and the approximate number of acres owned by each; when the name or post office address of the owned of any said lands or other property is unknown this fact shall be set out in said petition; said petition shall further state that the owners of the lands within said district whose names are subscribed to said petition are willing to and do obligate and bind the lands owned by them situated in the proposed drainage district to pay the tax or taxes which may be assessed against their respective lands to pay the expense of organizing and of making and maintaining the improvements that may be necessary to effect the reclamation of said lands, so formed into a drainage district, and to drain and protect the same from the effects of water, and said petition shall contain a prayer, asking that the lands described therein be declared a drainage district under the provisions of this Act; said petition may be signed by the Board of Drainage Commissioners, or by a majority of the owners, or the owners of a majority of the acreage of said lands, or same may be signed by both said Commissioners and owners of lands. ...