Town of Enterprise v. State ex rel. Attorney-General , 29 Fla. 128 ( 1892 )

Mabry, J.:

Counsel for plaintiffs in error makes no claim in his brief that the circuit court had no jurisdiction of the quo warranto proceedings.

The Constitution of 1885 (Sec. 11, Article Y), provides that “the circuit courts and judges shall have-power to issue writs of mandamus,' injunction, quo warranto, certiorari, prohibition, habeas corptis, and all writs proper and necessary to the complete exercise of their jurisdiction.” Under this provision of the Constitution there is no doubt about the jurisdiction of the circuit court in proceedings by information in the nature of quo warranto.

Was the demurrer to the information properly overruled ? The proceeding here is by information on the nature of quo warranto, instituted by the Attorney-G-eneral on behalf of the State, against the town of Enterprise and the plaintiffs in error. It is charged! in the information that plaintiffs in error have usurped, and do usurp, to be a corporation under the corporate name of the town of Enterprise, in Volusia county, State of Florida, and that they claim to be mayor and alderman of said town, and as such do perform and exercise all the liberties, privileges and franchises of incorporated towns, usurping to be a corporation, to the prejudice and wrong of the people of the State of Florida. The manner in which, it is claimed, they usurp the functions of municipal government is set out in the information. The information states that the town of Enterprise was incorporated on the first day of February, A. D. 1877, and without any surrender of this corporate franchise, or dissolution of the incorporation, another incorporation Avas formed on the 24th day of March, 1884, and that under each of these incorporations officers were elected, sAvorn and qualified, and entered upon and discharged the duties of their' respective offices; that these incorporations in succession were ignored, and without any authority of law a third incorporation of said town was on the 14th day of May, A. I)., 1885, formed or attempted to be formed, with contracted corporate limits, and leaving out citizens and qualified Alters who lived Avithin the limits of the former corporations. The three acts of incorporation, or attempted incorporation, as appears from the allegations of the information and the record of the proceedings, copies of which are attached thereto, were in the nature of original proceedings, and not a contraction, in the way provided by the statute, of the corporate limits of a preceding incorporation. The plaintiffs in terror are charged with usurpation under the third incorporation.

Where usurpation of a public office, or a franchise, is claimed by the State, and an information 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. People ex rel. Palmer vs. Woodbury, 14 Cal; 43; People ex rel. Flynn vs. Abbott, 16 Cal., 358; State ex rel. Curran vs. Palmer, 24 Wis., 63; State ex rel. Law vs. Saxon, 25 Fla., 342, 5 South. Rep., 801. It is contended here that while usurpation of municipal functions is charged hgaihs't plaintiffs in error, the information disclosed facts which show their right to exercise them, in this, that it appears from what is therein stated the two first efforts at incorporation are illegal and void, and the third one, under which they claim, is shown to be valid. We concede it to be a correct proposition, that if the information states the facts upon which the Charge of usurpation is based, and those facts show a Clear legal right in respondents, it would be insufficient. It was said in State ex rel. Law vs. Saxon, supra, that the same general principles and rules of pleading enforced in civil actions also govern in quo warranto proceedings. If the State allege a legal right in plaintiffs in error, and no forfeiture or loss of this right is shown, the information is insufficient. State vs. Haskell, 14 Nevada, 209. If either one of the two first in-corporations were valid, and embraced territory included in the third one, under which plaintiffs in error claim, the latter is void, unless there can exist two municipal corporations at the same time over the same territory. We have no hesitancy in declaring that the inhabitants of a given territory cannot under the general incorporation law in force in this State for the organization of municipal corporations, inaugurate two municipal governments in the same space at the same time. There is no inherent power in the inhabitants of' a town to create a municipal government. This can only be done in pursuance of, and in compliance with, legislative enactment on the subject. One valid organization is necessarily exclusive of another. It was said in State vs. Town of Winter Park, 25 Fla., 371, 5 South. Rep., 818, that two legal and effective municipal corporations cannot exist at the same time over the same territory, but in this case it was held that the rule did not apply where there was a de facto corporation without right, and a legally organized corporation not in active governmental operation till the former was ousted. Vide State ex rel. Hoya vs. Dunson, 71 Texas, 65; Buford vs. State, 72 Texas, 182; Dillon’s Municipal Corporations, sec. 184, as to existence of two corporations at same time. As to the first corporation it is alleged that the town of Enterprise was incorporated on the first day of February, A. D. 1877, as. will appear by a copy of the transcript of the proceedings attached as an exhibit to the information. Prom this transcript of the record before us we were unable to ascertain what are the metes and bounds of the territory proposed to be incorporated. The description given utterly fails to enclose any area, and it is impossible for us to determine from it the territories or boundaries of the alleged corporation. Under our statute, and in the very nature of the existence of a municipal government, it is essential that it should have ascertained and well-defined boundaries. The organization of a municipal government under our general law for incorporating towns and cities without defined metes is unauthorized and would be a nullity. Gray vs. Sheldon, 8 Vt., 403 ; Pierce vs. Carpenter, 10 Vt., 480 ; Dillon’s Mun. Corp., sec. 182. In addition to a void description of the territory proposed to be incorporated in said town, the transcript of the proceedings of incorporation recorded in the office of clerk of the circuit court did not have attached to it the signatures of the mayor and aldermen-elect and attested by the clerk with the corporate seal, as provided by the statute. Other objections are urged to the validity of this incorporation, but it is not necessary to consider them, as we think it w'as illegal and void on account of uncertainty in the proposed corporate limits.

A second corporation, it is alleged, was formed on March 24th, A. D. 1884. 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 town,' and the names of the officers-elect, to which the mayor and aldermen attached their signatures, attested by the clerk with said seal, was filed with the clerk of the circuit court and marked filed, but before being recorded was lost, and cannot now be found. The transcript of the proceedings alleged to have been delivered for record complies with the statute in every respect, except it does not embody the name or style óf the corporation. This transcript, it seems, in some way disappeared from the clerk’s office and was never recorded. IVe would not lie disposed to pronounce the corporate organization void because of the failure to record the transcript, under the circumstances alleged. If the municipal organization was properly had, and a perfect transcript of the proceedings delivered to the proper officer whose duty it was to record it, we think the incorporators would then have complied with the requirement of the statute in so far as the creation of the corporation among themselves is concerned. They had the right to re-establish the lost transcript and have it recorded. It is not necessary for us to say here what would be the effect of a failure -on their part to re-establish the lost record in a direct proceeding by the State to vacate the municipal government thus formed. There is, however, a defect in the second alleged incorporation, which demands our consideration. The alleged metes and bounds of this incorporation show that a part of the territory proposed to be incorporated is detached and disconnected from the other. Sections one (1) and two (2) of township nineteen (19), and sections thirty-five (35) and thirty-six (36) in township eighteen (18), range thirty (30),„ constitute one contiguous body, but section six (6) in. township eighteen (18), range thirty-one (31), is a body-one mile square, and distant five miles. We have,, then, a proposed municipal organization, under our-general statute for the incorporation of towns and. •cities, containing as corporate territory two separate- and detached localities. The query at once presents itself, can this be done? The statute provides that “the male inhabitants of any hamlet, village or town in this State not less than twenty m number,” with the requisite qualifications, may establish for themselves a municipal government. It is alleged in the-information that the towm of Enterprise was incorporated. In Chicago & Northwestern Railway Co. vs. Town of Oconto, 50 Wis., 189, it was held that the word “town,” as used in the Constitution of that State, denotes a civil division composed of contiguous territory, and under the power given to county boards by statute to set off, organize, vacate and change the boundaries of towns in their respective counties, such boards cannot make a valid order changing the boundaries of a town so that it shall consist of two separate- and distinct tracts of land. In Smith vs. Sherry, Ibid, 210, it was said: “Theidea of a city or village, implies an assemblage of inhabitants living in the vicinity of each other, and not separated by any other intervening civil division, of the State. ” We think that 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 contiguous territory, and that an attempt to incorporate two distinct detached tracts of land, as corporate territory under one government, is unauthorized and void. 1 Dillon’s Mun. Corp., sec. 27. The idea of a municipal government with outlying detached municipal provinces, was not contemplated by the statute. The machinery of government provided by the statute is inapplicable to such a state of affairs. From the allegations of the information, our conclusion is, that the second attempted incorporation of the town of Enterprise was also illegal.

The third incorporation in question, as appears from the allegations of the information and the transcript of the proceedings, a certified copy of the .record of which is filed as a part of the information, was in compliance with the statute. The corporate name is Enterprise, and the metes and bounds of the incorporation are defined, and all the other requisites of the statute substantially met. It appears from the information that officers were elected, qualified and discharged official duties under the two first incorporations, but before the formation of the third, it is alleged that the two former in succession were laid aside, and proceedings were instituted to incorporate again. It is a well established rule 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 existénce, it can not be controverted in a collateral way on account of irregularities and defects in their organization. President and Trustees of the Town of Mendota vs. Thompson, 20 Ill., 197; Hamilton vs. President and Trustees of Carthage, 24 Ill., 22; 1 Dillon’s Mun. Corp., section 43, a.

When the last incorporation was formed there was no municipal government in existence under either one of the former attempts at incorporation. Whatever might be the effect of an existing municipal government, under a void incorporation, as to the right of the inhabitants therein to organize anew in opposition to it, we think that after an abandonment of such organization, the former proceedings would not preclude them from proceeding to organize a municipal government in accordance -with the provisions of the statute. The allegation in the information, that officers were elected and qualified under the two first incorporations, standing alone would be no objection against the third incorporation, as it is shown that the organizations under the former were void, and the governments under them abandoned before proceedings under the latter. The theory here is, that the third incorporation is illegal, and the proceedings instituted is to test the right of plaintiffs in error, and others, to maintain a corporate government. Our investigation so far has conducted us to the conclusion that, as shown by the information, the formation of the third corporation on May 14th, A. D. 1885, is legal; and unless there is something in the acts of the Legislature in reference to the two first, that will change the result, the demurrer was improperly overruled.

The Legislature passed a special act on the 22d day of February, A. D. 1885, about one month before the third incorporation was undertaken, providing “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.” Chapter 8634, acts of 1885, laws of Florida. The first attempted incorporation, in 1877, was void for uncertainty in the territorial limits, and metes and bounds of the incorporation. The second one, in 1884, was void because an attempt was made to incorporate into one municipal government two distinct and detached tracts of land, and which was unauthorized by the general law for the incorporation of cities and towns. The enactment of this statute was before the adoption of the Constitution of 1885. The Constitution of 1868 (secs. 21, 22, Art. IV) provides that the Legislature shall establish a uniform system of county, township and municipal government, and shall provide by general law for incorporating such municipal, educational, agricultural, mechanical, mining and other useful companies or associations as may be deemed necessary. Section 17 of same article prohibits special or local laws in certain enumerated cases, which it is not necessary to mention. Under the provisions of the Constitution of 1868 the Legislature could not by special act create a municipal corporation, as the clear mandate of that instrument was, that provision should be made by general law for incorporating such bodies. The attempted incorporation of the town, of Enterprise on the 24th day of March, A. D. 1884, to which the special act was no doubt designed to apply, was not in compliance with the general law on that subject, in this: That it sought to incorporate two detached territories under one government. This could not be done under the general law. Was it competent for the Legislature to validate by special act what had been attempted to be done? We are duly sensible of the rule that an act of the Legislature passed in due form is not to be held invalid by reason of its being supposed to be in contravention of the provisions of the constitution, in a merely doubtful case, and in such case the doubt should turn the scale in favor of the validity of the enactment. We recognize the well settled rule that it is only in cases where the act of the Legislature is clearly repugnant to the Constitution-that it will be so declared. In Strange vs. City of Dubuque, 62 Iowa, 303; 14 Am. and Eng. R. R. Cases, 107, a special act of the Legislature, attempted to validate a void ordinance of the city of Dubuque granting a street railway company the right of way for its railroad on <jertain streets of the city, was pronounced void under a constitution prohibiting the legislature from passing local or special laws for the incorporation of cities and towns. It was said: “As the Legislature could not by special act, have authorized the city of Dubuque to pass the ordinance in question, it follows that it can not, after the passage of the ordinance, legalize it by special act. The Legislature cannot do indirectly what it is inhibited from doing directly.” The following authorities sustain this position: Ex parte Pritz, 9 Iowa, 30; Davis & Bro. v. Woolnough, Ibid. 104; Town of McGregor vs. Baylies, 19 Iowa, 43; Smith vs. Sherry, supra. The twenty-first section of Article IY of the Constitution, which provides that “the Legislature shall establish a uniform system of municipal government,” was construed in the case of McConihe v. State, ex rel. McMurray, 17 Fla., 238. It was said: ‘ ‘There is little difficulty in determining the signification of the word ‘system’, in this connection. Its general signification is, plan, arrangement, method, and when used in reference to municipal government, it means simply; rules and regulations for the organization and government of municpal corporations.” This being the case, it becomes perfectly clear that the special act in question is in conflict with the constitutional requirement of uniformity in the organization of municipal governments, whatever might be its effect in curing mere defects in the procedure in the organization of a municipal government invested with no new or different powers than those organized under the general law. “Uniformity indicates consistency, resemblance, sameness, a conformity to one pattern.” For a full discussion of the special laws prohibited, and the uniformity of the operation of the general legislation under the sections of the Constitution in question, see, in addition to McConihe vs. State, ex rel. McMurray, supra, State, ex rel. Haley vs. Stark, 18 Fla., 255; Lake vs. State, ex rel. Palmer, Ibid, 501; Ex Parte Wells, 21 Fla., 280. If municipal corporations can be formed in violation of the general incorporation act on this subject, and then legalized by special act of the Legislature, the uniformity of municipal organization demanded by the Constitution can be dispensed with by special legislation. No such result as this, we think, can be reconciled with the Constitution. We conclude that the special act of 1885 can not have the effect to make valid what has been done in the attempted organizations of the town of Enterprise. The act can not validate what was done under either of the first two efforts at incorporation.

In 1887 we find a general act (Chapter 3748, Laws of Florida) providing for the legalization of the charters of incorporated cities and towns. This act went into effect after the third incorporation was had. A perusal of this act will show that it has no application to jhe two first attempted incorporations. There was no municipal,government in existence, or operation, under' either at the time the last act took effect. It applies to cities and towns which then, and for ten years then last past had, exercised municipal government, and which, on account of certain specified defects in organization, had the legality of their incorporation brought in question. The two first incorporations had been abandoned, and there were no municipal governments under them, and hence this legislation had no application to them. The information shows that the incorporation of May 14th, A. D., 1885, was in compliance with the statute, and this being so, we think the demurrer was improperly overruled.

After the demurrer was overruled, plaintiffs in error filed an answer, and on motion of the State, a judgment vacating all former incorporations of the town of Enterprise, or Enterprise, was rendered, as well as a judgment of ouster against plaintiffs in error. The motion seems to have been considered as a demurrer to the answer. Great particularity is required in an answer in such proceedings, and a complete legal right must be shown; State ex rel. Law v. Saxon, supra; but, on demurrer, a bad plea is a good answer to a defective declaration. The infirmity in the record here is in the information filed by the State. From the State’s showing, there is a good canse why plaintiffs in error, and others residing in the corporate limits of Enterprise, should not inaugurate and maintain the municipal corporation in question. The statute gives them this right.

The judgment of the circuit court is reversed with directions that the demurrer to the information be sustained.