Town of Ormond v. Shaw , 50 Fla. 445 ( 1905 )

Whitfield, J.,

(after stating the facts). The first ground of the demurer to the petition is that it fails to show any interest that requires the joinder therein of several of the petitioners. Among the petitioners are the names of men who join with their wives and also the names of a widow and an executrix, while the petition shows the wives in one case, and the deceased husband and testator in the other to be the owners of the property sought to be excluded from the municipality. It is urged that where the wives own the property sought to be excluded from the municipality the husbands should not be made parties, and also that in the case of the-deceased husband and testator the widow and executrix do not appear to be the owners of the land. Even if the husbands are not necessary parties they are not improper parties, and the widow and executrix of a deceased testator may in the absence of a contrary showing be considered the owner of land for the purpose of getting it excluded from a municipality in a proceeding of this character.

The second and third grounds of the demurrer are that the petition does not show the lands respectively owned by the several plaintiffs and that it does not show who are the owners of the lands which it is sought to exclude. The petition gives the names of “the owners of the land in said sections 10 and 11 as shown by the last tax roll of the town of Ormond” and the subdivisions owned by each of them., and alleges that of the owners so given all are plaintiffs except two. This is a sufficient allegation of the owners of the land sought to be excluded.

It is also contended that the petition is defective in that it shows that all of the lands sought to be excluded from the municipality are not owned by the petitioners and that consequently the rights of absent owners are involved. The act provides “That when any incorporated town (or city) containing less than one hundred and fifty qualified electors shall, owing to extent of territory, have embraced within its limits, any lands which may from distance or other cause be virtually or commensurately excluded from the benefits of such municipal organization it shall be lawful for any owner or owners of such lands or three-fourths of them desiring to have the same excluded from, such corporate limits and jurisdiction, to apply by petition to the Circuit Court in and for the county in- which said incorporated town is situated, setting forth in said petition the limits of such incorporated town as then existing and the grounds of his or their objection to being included within the limits of such corporation, whereupon the said Circuit Court shall order notice of said application to be served upon the Mayor of said town or city and appoint a day for the hearing of such application. If upon the hearing of said application the said court shall sustain the said objection, the said tract or tracts of land shall be so excluded. Such petition may be heard and determined by said court in term time or vacation, and any question of fact may he determined by said court without a jury.” The proceeding under this act does not affect the title to the land, nor does it impose any burden upon it, and it is not necessary to do more than comply with the requirements of the act and for 'at least three-fourths of the owners of the territory to move for its extension. The act is not subject to the criticism that it applies only where lands are owned jointly. It is a general act and is intended to apply to all cases which land included within a municipality may from distance or other cause be virtually or commensurately excluded from the benefits of such municipal organization.

The contention that the act under which this proceeding is had conflicts with section 16 of Article 3 of the constitution in that the provisions of the act are inconsistent with an entirely foreign to subject expressed in its title is not well founded. The title is “An Act to Amend Chapter 4601, Laws of Florida, being Entitled An Act to Amend Section 720 of the Revised Statutes of the State of Florida, in Reference to Contracting of Territorial Limits of Cities and Towns.” The subject of section 720 of the Revised Statutes and Chapter 4601 laws of Florida, as well as of the act here considered, Chapter 5197, is the contracting of territorial limits of cities and towns, and all the provisions of each one of said acts have reference to such subject and are matters properly connected therewith. The lands sought to be excluded from the municipality in this proceeding do not effect the contiguity of the remainder of the lands in the corporate limits of the town.

It is insisted that the provisions of Chapter 5197 acts of 1903, conflict with Article 2 of the constitution which provides that “The powers of the government of the State of Florida shall be divided into three departments — legislative, executive and judicial; and no person properly 'belonging to one of the departments shall exercise any powers appertaining to either of the others; except in cases expressly provided for by this constitution.

It wag held by this court in the case of City of Jacksonville v. L’Engle, 20 Fla. 344, that the power conferred upon county commissioners by Chapter 3025, acts of 1877, which was similar to- that conferred upon the Circuit Courts under the act here considered, was not strictly judicial within the prohibition of the constitution. If not strictly judicial so as to prohibit its exercise by persons belonging to the executive department, yp-i such power involves the exercise of quasi judicial judgment and discretion and it may be conferred upon the Circuit Court under the provision of section 11 of Article 3 of the constitution which in defining the jurisdiction of Circuit Courts gives to them original jurisdiction of certain specified matters “and of such other matters as the legislature may provide.” The constitution by section 8 of Article 8, provides that “The legislature shall have power to establish and abolish municipalities, to- provide for their government, to> prescribe their jurisdiction and powers, and to alter or amend the same at any time.” Under this provision it is competent for the legislature by law to exclude from a municipality a portion of the lands within its limits. The constitution also provides by Section 24 of Article 3 that “The legislature shall establish a uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws are provided by the legislature that may be inconsistent therewith.” Under this provision the legislature may by general law provide for excluding lands from the limits of incorporated municipalities and the power may be conferred upon the Circuit Courts to determine the matters involved in the proceedings for such exclusion.

The second assignment of error is that “the court erred in admitting in evidence the certified copy of a portion of the tax roll of the town of Ormond pertaining to the premises in question.” The copy of the portion of the tax roll offered in evidence and objected to is certified by the tax collector of the town of Ormond “to be a true and exact copy of the tax roll of the town of Ormond for the year 1903, covering the districts known as Bellewood, Assessors Triton Beach and Triton Beach, as far as the names of owners and description of property assessed.” This copy of a portion of the tax roll purports on its face to contain all that relates to the names of owners and descriptions of land in controversy that appears in the tax roll, and it was properly admitted in evidence to show that the lands were upon the tax roll of the town assesed to the persons named as owners thereof. Such copy was admissible to show the names of persons to whom; the lands in controversy were assessed by the town, which was proper evidence in this proceeding.

Under the third assignment of error it is contended that there was no sufficient showing as to the ownership of the lands sought to be excluded, and that the evidence failed to show a case of virtual or commensurate exclusion from the benefits of the municipal organization. In a proceeding of this character the title to the lands is not involved, and under the facts of the case the ownership of the land is sufficiently shown by the tax roll made by the town, at least in the absence of any evidence to the contrary. After a consideration of the evidence we can not say it fails to show that the lands in controversy are virtually or eommensurately excluded from the benefits of the municipal organization and the finding of the Circuit Court will not be disturbed.

Plaintiff in error in conclusion argues that the petitioners are in such laches in bringing this proceeding that relief should be denied them. Chapter 5197 which authorizes three-fourths of the owners of the land to trike this proceeding was enacted in 1903, and- amends Chapter 4601 which did not contain such provision, and as the petition in this case was filed on October 23rd, ¡903, laches can not be imputed to the petitioners.

The judgment is affirmed.

Shackleford, C. J., and Cockrell, J., concur. Taylor, P. J., and Hocker and Parkhit.l, JJ., concur in the opinion.