Estes v. City of North Miami Beach, 38027

• Decision Date: 09 July 1969
• Docket Number: No. 38027,38027
• Citation: 227 So.2d 33
• Parties: John W. ESTES, Jr., Petitioner, v. CITY OF NORTH MIAMI BEACH, Respondent.
• Court: Florida Supreme Court

Page 33

227 So.2d 33

John W. ESTES, Jr., Petitioner, v. CITY OF NORTH MIAMI BEACH, Respondent.

No. 38027.

Supreme Court of Florida.

July 9, 1969.

Rehearing Denied Oct. 27, 1969.

John W. Estes, Jr., No. Miami Beach, for petitioner.

Sam I. Silver, of Pallot, Silver, Pallot, Stern & Proby, Miami, for respondent.

ADKINS, Justice.

By petition for certiorari we have for review a decision of a District Court of Appeal (City of North Miami Beach v. Estate, 214 So.2d 644), which allegedly conflicts with a prior decision of this Court (Peck v. Spencer, 26 Fla. 23, 7 So. 642) on the same point of law. Fla.Const., 1885, Art. V, § 4 (F.S.A.).

Bernard Weithorn, a losing candidate for councilman in a municipal election of the City of North Miami Beach, filed a complaint against four of seven members of the city council, charging election law violations. In this suit Weithorn sought an injunction preventing the councilmen from performing any of their duties, other than legislative action, pending outcome of the suit. After the Weithorn suit was filed, the city council (including the four newly elected members) adopted Ordinance No. 67--7 which provided that special counsel be retained by the city for the purpose of defending the four councilmen in the Weithorn suit. Pertinent portions of this ordinance are included in the opinion of the District Court. (214 So.2d 644, 645).

The Weithorn case was successfuly defended by the special counsel. Petitioner Estes instituted this suit seeking to enjoin the city council from paying the special attorney from city funds. He contends that the use of public funds for the payment of special counsel under the circumstances constituted an illegal use of public funds for a private purpose.

The Circuit Court granted an injunction, but this judgment was reversed on appeal. Estes then petitioned this Court for certiorari claiming that such decision of the District Court was in direct conflict with a former decision, passed upon a question of great public interest, and affected a class of constitutional or state officers.

The Constitution of Florida provides that this Court may review by certiorari any decision of a District Court of Appeal Certified by that Court to be a decision passing upon a question of great public interest. Fla.Const., 1885, Art. V, § 4(2). See Fla.App. Rule 4.5(c)(6), 32 F.S.A. The certification is a prerequisite to our jurisdiction. See 2 Fla.App.Prac. & Proc., § 32.05. There was no certification in this case, so this ground for certiorari review must fail.

A city official is not a 'constitutional or state officer' within the meaning of the provisions of Fla.Const., 1885, Art. V, § 4(b), authorizing this Court to review by certiorari any decision of a District Court of Appeal that affects a class of 'constitutional or state officers.' See Hakam v. City of Miami Beach, 108 So.2d 608 (Fla.1959).

Certiorari was granted because of a possible conflict, but if, after argument, it appears that the Court does not have jurisdiction, the writ should be discharged.

The basic issue presented is whether the city council exceeded its authority, or abused its discretionary power, in engaging special counsel to defend an action instituted against a Majority of the city council and the city attorney in their individual names, but in which the plaintiff sought a judicial construction of the provisions of the municipal election code and an injunction against the defendants restraining them from performing all of their official duties on behalf of the municipality other than legislative action. The alleged conflicting decisions must be considered in the light of these facts.

In Peck v. Spencer, 26 Fla. 23, 7 So. 642, relied upon for conflict, a tax-payer sought a declaration that the town council was without authority to authorize the acting mayer to employ counsel to defend at the town's expense a suit which had been filed against the acting mayor by the defeated candidate to test the legality of the town election. The election contest in the Peck case did not affect the ability of the town council to perform their functions and the city had no interest in the outcome. The facts are, therefore, distinguishable, but the rule of law set forth by the Court is applicable. The Court said:

'And now, admitting the right of corporations to sue and to defend suits, And to protect their officers in the lawful discharge of their duties, to be...