Walker v. Pendarvis, 40041

• Decision Date: 14 July 1961
• Docket Number: No. 40041,40041
• Citation: 132 So.2d 186
• Parties: Basil J. WALKER et al., as the Duval County Budget Commission, Appellants, v. R. D. PENDARVIS et al., as the Justices of the Peace and Constables of Duval County, Appellees.
• Court: Florida Supreme Court

Page 186

132 So.2d 186

Basil J. WALKER et al., as the Duval County Budget Commission, Appellants, v. R. D. PENDARVIS et al., as the Justices of the Peace and Constables of Duval County, Appellees.

No. 40041.

Supreme Court of Florida.

July 14, 1961.

O. O. McCollum, Jr., Jacksonville, for appellants.

Frank T. Cannon, Jacksonville, for appellees.

DREW, Justice.

This cause is before us on direct appeal to review the final decree of the Circuit Court of the Fourth Judicial Circuit in and for Duval, County, Florida, In Chancery, directly passing on the validity of certain statutes of this State. Preliminarily we dispose of the pending motion to dismiss the appeal which alleges that due to the recent passage by the 1961 Legislature of Chapter 61-940 filed 5/4/61; Chapter 61-941 filed 5/4/61; and Chapter 61-1352 filed 5/22/61; ¹ the questions involved in this appeal have been rendered moot.

We have determined that even though the questions presented may be moot, the case is of sufficient importance and public interest, relating, as it does, to the duties, responsibilities and authority of certain public officials of this State and certain public agencies of Duval County as well as the possible liability of certain officials for unauthorized compensation, to retain jurisdiction and determine these unsettled questions. ²

Complainants in the trial court were members of the Duval County Budget Commission. Their prayer for a declaratory decree is as follows:

'1. The applicability, effect, validity and meaning of Chapters 59-797 Laws of 1959; 30036 Laws of 1955; 27215 Laws of 1951; 21195 Special Laws of 1941; 25797 Special Laws of 1949; 21041 Laws of 1941; 22604 Laws of 1945; 28450 Laws of 1953; 30520 Laws of 1955; 21874 Laws of 1943; 146 Florida Statutes, 1959, and 145 Florida Statutes, 1959.

'2. Determine the number of clerks and stenographers and other clerical assistants that may be employed by both the Justices of the Peace and the Constables of Duval County, and the source and amounts of their compensation.

'3. Determine the number of deputy constables that may be appointed and employed by the Constables of Duval County, Florida, and the source and amount of their compensation.

'4. Determine the validity of unlimited per centage contracts of employment between Constables of Duval County, Florida, and their Deputy Constables, for compensation of deputies out of the fees and commissions of the office of constable.

'5. Determine the compensation to be allowed the Justices of the Peace and Constables of Duval County, Florida.

'6. Determine whether the Defendants are bound by the amounts provided by the Duval County Budget as funds for salaries and funds for supplies and other expenses as the maximum amounts that the Defendant may lawfully expend or obligate for such designated purposes.

'7. Determine whether the Duval County Budget Commission should provide any funds in the County Budget for the compensation of any deputy constable, or for the expenses of any constable or deputy constable for policing traffic on the public highways, either inside or outside of incorporated cities and towns.'

Chapter 21874, Laws of Florida, 1943 empowered the Duval County Budget Commission ³ to fix and determine the amount to be paid or allowed for each of the offices of the county which include the appellees Justices of the Peace and Constables. The amounts that these constitutional officers ⁴ may expend or retain as their compensation and the amount to be paid or allowed by or for each of the officers for salaries of employees and deputies, and for supplies and other expenses in the conduct and operation of the offices must also be determined according to the dictates of this legislation.

Appellees, in their pleadings below, admitted the appellants are the Duval County Budget Commission, existing under Chapter 21874, Laws of Florida, 1943, which empowers and charges the said commission with the duty of providing a yearly budget for the conduct of the offices of the appellees, who are the nine Justices of Peace and Constables of Duval County ⁵ and that the present nine Justices of Peace and Constables are under the jurisdiction of the provisions of Chapter 145, Florida Statutes, 1959, F.S.A., as fee officers. ⁶

Appellants contend that commencing with the calendar fiscal year of 1958, budgets have been adopted for Justices of the Peace and Constables, and many questions have arisen because of the appointment and employment of clerical assistants in varying numbers, and the appointment and employment of Deputy Constables in varying numbers, in some instances as high as six regularly and not merely for service during the disability or absence of the Constables. Such appointees and employees receive their compensation out of the fees and commissions of the employing office as expenses of the office before determination of the net income of the office.

In some instances the Deputy Constables received a percentage of the fees and commissions, usually 50%, but sometimes 60%, either of the revenues of the office as such, or of the revenues accruing for the work done by the Deputy Constable, without any limitation as to the total compensation to be paid such Deputy, and in some instances exceeding the compensation allowable by law for the Constable, even exceeding $15,000 a year. During 1958, according to the records of the appellants, the expenditures by Justices of the Peace for such salaries were as high in some instances as $7,692.50 and for other expenses as high as $2,948.52, while expenditures by Constables for such salaries were as high in some instances as $20,931.36, and for other expenses as high as $8,960.40. In many instances such expenses were in excess of amounts allowed therefor by the County Budget for that year. In 1959 expenditures by Justices of the Peace for such salaries were as high in some instances as $8,239.35 and as high as $4,327.24 for other expenses, while expenditures by the Constables were as high in some instances as $24,979.06 for salaries and as high as $9,161.17 for other expenses. In several instances they were in excess of the amounts allowed therefor by the County Budget for that year.

The challenged acts (to which we will specifically refer hereafter) may be dichotomized into (a) special or local acts, having to do with the number of deputies which constables may appoint and the fixing of payment of their compensation, and (b) general acts of local application classified by population and other conditions, usually termed 'population acts' having to do with the number and payment of deputies, clerical assistance, amount of expenses, and the compensation of particular officers.

The learned trial judge by an erudite opinion supported the following order, judgment and decree:

'Ordered, Adjudged and Decreed that Chapter 21195 Laws of Florida, Special Acts of 1941; Chapter 25797, Laws of Florida, Special Acts of 1949; Chapter 22604, Laws of Florida, General Acts of 1945; Chapter 28450, Laws of Florida, General Acts of 1953; and Chapter 30520, Laws of Florida, Special Acts of 1955, be, and they are hereby, declared to be in conformity to the particular requirements of Article III, Section 20 and 21, of the State Constitution, and are legally effective in their respective sphere of applicability to Duval County; and it is further

'Ordered, Adjudged and Decreed that Chapter 21041, Laws of Florida, General Acts of 1941, and Chapter 59-797, Laws of Florida, General Acts of 1959, be, and they are hereby, declared to be invalid and in violation of Article III, Sections 20 and 21, of the State Constitution, and are without legal force and effect in Duval County, Florida; and it is further

'Ordered, Adjudged and Decreed that Chapter 27215, Laws of Florida, General Acts of 1951, and Chapter 30036, Laws of Florida, General Acts of 1955, be, and they are hereby, declared inapplicable and without force in Duval County, Florida, as the provisions of said Acts clearly exempt this County from its terms in the enumerated conditions therein contained.'

Appellant assigns four major errors all relating to the first paragraph of the foregoing decree of the trial court in which it held that Chapter 21195, Laws of Florida 1941; Chapter 25797, Laws of Florida 1949; Chapter 22604, Laws of Florida, 1945; Chapter 28450, Laws of Florida, 1953; and Chapter 30520, Laws of Florida, 1955 are legally effective in their respective sphere of applicability to Duval County and are in conformity with the constitutional requirements of Article III, Sections 20 and 21 of the Constitution of the State of Florida.

Appellee has cross assignments of error relating to jurisdiction and the decree of the trial court that Chapter 59-797, Laws of Florida, 1959 (mentioned in the second paragraph of the above quoted portion of the trial court's decree) is invalid and unconstitutional.

We first direct our attention to the question of the right of action by the five Budget Commissioners to sue 'as the members of and constituting the Duval County Budget Commission.' Appellees contend that these individuals are not persons as defined in the Declaratory Judgment Act, ⁷ in that on the one hand if the suit were brought as individuals, it would have to be brought as a tax payers suit and on the other that there is no 'person' known as the Duval County Budget Commission.

The pertinent section must be read in conjunction with Chapter 21874, General Acts of 1943, as well as Section 1.01, Florida Statutes 1959, F.S.A., for the proper determination of the word 'person'. The 1943 Act created the Budget Commission but does not designate it as a body corporate. It is not, therefore, a legal entity authorized to sue as such, but must sue in the name of its members. ⁸ In such cases it has been the recognized practice for the members of such boards or commissioners to sue or be sued in their individual names 'as members of and constituting' the...