Stewart v. DeLand-Lake Helen Special Road & Bridge District , 71 Fla. 158 ( 1916 )

Shackleford, J.,

(after stating the facts.) — Voluminous briefs have been filed by the respective counsel in this cause, in which numerous authorities are cited, and we have also been favored, with oral arguments. We shall treat such points as seem to be necessary for a proper disposition of the case.

Instead of arguing the assignments as made in detail, the appellant has announced that he relies for a reversal of the order from which the appeal was entered upon four propositions of law, the first of which he states in his brief as follows :

“The first proposition is that Chapter 5762 Acts of the year 1907, entitled: ‘An Act for the improvement of public roads and bridges in Volusia County, providing for the employment of convicts under certain conditions, and, for the levy of a road and bridge tax and the means of its expenditure’ is now in force and effect in Volusia County, Florida, and that Chapter 6208, laws of Florida, Acts of 1911, under the provision of which act the bonds are alleged in the petition to have been voted, is inapplicable to Volusia County, as the construction and repair of all roads and bridges in Volusia County, as well as the levying of Special taxes and the limitation as to the amount Volusia County can tax for road and bridge purposes is governed by special act of the Legislature of Florida, to-wit, Section 5762, Laws of Florida, Acts of 1907, which is now in force and has not been repealed, and that Section 6208, Laws of Florida, 1911, has no effect in Volusia County, and that Section 5762, Laws of Florida, Acts 1907, regulates the manner in which all roads and bridges shall be constructed in Volusia County, Florida, as well as the manner in which the revenue shall be derived for constructing and repairing the same, as well as imposing a limitation as to the amount that can be taxed against the property in Volusia County.”

Chapter 5762 of the Laws of Florida, (Acts of 1907, page 291), which the appellant contends has never been repealed, either directly or by necessary implication, therefore remains in full force and effect bears the following title:

“An Act for the improvement of the Public Roads and Bridges in Volusia County, Providing for the Employment of Convicts Under Certain Conditions and for the Levy and Collection of a Road and Bridge Tax, and the Means of Its Expenditure.”

As is apparent at a glance, this is a local law, relating to Volusia County in the particulars and for the purposes therein specified, and does not undertake to provide for or authorize the issuance of any bonds for road and bridge purposes but relates only to the levy and collection of a road and, bridge tax, and the means of its expenditure. Chapter 6208 of the Laws of Florida (Acts of 1911, page 167), is a general law, applicable throughout the State, being entitled:

"An Act to Authorize the Counties of the State of Florida to Create and Constitute Special. Road and Bridge Districts, Within Said Counties; and to Issue Bonds and Levy and Collect a Special Road and Bridge Tax With Which to Pay for the Construction, Repair and Maintenance of the Roads and Bridges Within Said Special Roads and Bridge Districts.”

Section 1 thereof expressly provides that “whenever residents of any territory embraced wholly or in part in one or more Road Districts, as at that time constituted in any county of the State of Florida, desire to have such territory constituted into a ‘Special Road and Bridge District’ and to have constructed within said Special District, permanent roads and bridges, they shall present to the Board of County Commissioners, a petition,” etc. We would also call attention to Sections 15 and 16 of such Chapter 6208, which are as follows:

“Sec. 15. That after the construction of the roads and bridges authorized by the Special Election, the Board of County Commissioners shall estimate from year to year, the amount necessary to keep in repair and, maintain the roads and bridges within said Special Road and Bridge District; and shall assess annually all taxable property within the said Special District, a tax not exceeding ten mills on the dollar, which said tax shall be collected and paid into the Special Road and Bridge Fund of that Special District, and used solely by the County Commissioners for the repair and maintenance of the roads and bridges within said Special Road and Bridge District.

Sec. 16. That any Special Road and Bridge District created under authority of this Act, shall be entitled to receive for the repair and maintenance of the Roads and Bridges in said District, its due proportion of the County Tax levied and collected upon the taxable property of the county for general road purposes; and the Special Tax provided for in Section 15 of this Act, shall be levied and collected on the taxable property in said Special District, only for such repair and maintenance of the Roads and Bridges in said Special District, that cannot 'be paid for from its proportion of the general County Road Tax.”

Section 18 of such Chapter expressly repeals all laws and parts of laws in conflict therewith.

As early as the case of Luke v. State, 5 Fla. 185, this Court held: “The maxim of 'leges posteriores priores contrarias abroganf is not applicable to cases where the precedent act is special or particular, and the subsequent act is general, the rule being that a later general act does not work any repeal of a former particular statute.” In the body of the opinion on page 194 it is said: “As a general rule, it is true, that every affirmative statute is a repeal by implication, of a precedent affirmative statute, so far as it is contrary thereto; leges posteriores priores contrarias abrogant — but to apply this-maxim of the law, it is necessary that the two acts be in conflict which is not the case here.” The opinion then proceeds to state, “applying another rule in the interpretation or construction of statutes, the later general act does not work any repeal of a former particular act.” Likewise in State v. Southern Land and Timber Co., 45 Fla. 374, 33 South. Rep. 999, we held: “In the construction of general and special acts the maxim generalia specialibus non deroganf applies, and a general act will not be held to repeal or modify a special one embraced within the general terms of the general act, unless the general act is a general revision of the whole subject, or unless the two acts are so repugnant and irreconcilable as to indicate a legislative intent that the one should repeal or modify the other.”

In State ex rel. Gonzalez v. Palmes, 23 Fla. 620, 3 South. Rep. 171, we held: “One statute will not be held to repeal a former one unless there is a positive repugnancy between the two, or the latter was clearly intended to prescribe the only rule which should govern the case provided for, or it revises the subject matter of the former, or expressly repeals it.” See also the discussion in City of Tampa v. Prince, 63 Fla. 387, 58 South. Rep. 542. As we said in Smith v. Milton, 61 Fla. 745, text 764, 54 South. Rep. 719, “The invariable rule of construction in respect to the repealing of statutes by implication, is, that the earliest act remains in force, unless the two are manifestly inconsistent with and repugnant to each other.” In State ex rel. Loftin v. McMillan, 55 Fla. 246, 45 South. Rep. 882, we held as follows:

“Laws should be construed with reference to the constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia, though they contain no reference to each other.

Where one statute in comprehensive terms covers a subject and another later statute embraces only a particular part of the same subject, the two should be construed together unless a different legislative intent appears; and the statute relating to the particular part of the general subject will operate as an exception tO' or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy if any.”

Also see Peninsular Industrial Insurance Co. v. State, 61 Fla. 376, 55 South. Rep. 398.

In State v. County of Gadsden, 63 Fla. 620, 58 South. Rep. 232, we held:

“While statutes may be impliedly as well as expressly repealed, yet the enactment of a statute does not operate to repeal by implication prior statutes unless such is clearly the legislative intent.

An intent to repeal prior statutes or portions thereof may be made apparent when there is a positive and irreconcilable repugnancy between the provisions of a later enactment and those of prior existing statutes. But the mere fact that a later statute relates to matters covered in whole or in part by a prior statute does not cause a repeal of the older statute.

If two statutes may operate upon the same subject without positive inconsistency or repugnancy in their practical effect and consequences, they should each be given the effect designed for them unless a contrary intent clearly appears.”

The discussion in the opinion rendered in this case is instructive and helpful in dealing with the proposition which we are now considering.

We have carefully examined the different contentions of the appellant in support of this first proposition upon which he relies for a reversal of the order from' which he has appealed, in the light of the decisions of this court which we have cited, and are of the opinion that such proposition in its entirety cannot be sustained. We think that the appellant is right in claiming that Chapter 5762 of the Laws of Florida has not been repealed by Chapter 6208 of the Laws of Florida, and upon this point we find that the appellee concurs with appellant. We do not find any such conflicts in the provisions of the two Chapters that they cannot stand together and each be operative. If as a matter of fact such conflicts exist that the provisions of each Chapter cannot be enforced, the appellant has not succeeded in pointing- out and demonstrating the same.

The second proposition upon which the appellant relies is stated in his brief in the following language:

“The second proposition is that Chapter 6208, Laws of Florida, Acts of 1911, is unconstitutional and void, in that it violates that provision of the Constitution of the State of Florida, providing for a uniform system of taxation throughout the State, county and city, as required by Sections 1 and 2 of Article 8, of the Constitution, Sections 3 and 5 of Article 9 of the Constitution, which provides that counties shall be political divisions of the State, and that the Legislature shall provide for a uniform and equal rate of taxation, and that the Legislature shall authorize the several county and incorporated cities and towns in the State to assess and impose taxes for county and municipal purposes and for no other purposes, and all property shall be taxed on the principles established for State taxation — that is, a rate uniform and equal throughout the State, throughout the county or throughout the municipality.”

Sections 1 and 2 of Article VIII of the State Constitution, which it is claimed are violated by Chapter 6208 are as follows:

“Section 1. The State shall be divided into political divisions to be called counties.

Section 2. The several counties as they now exist are hereby recognized as the legal political divisions of the State.”

Sections 3 and 5 of Article IX of the State Constitution, which it is contended are also violated by such Chapter 6208, read as follows:

“Section 3. No tax shall be lexied except in pursuance of law.”

“Section 5. The legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits. The legislature may also provide for levying a special capitation tax, and a tax on licenses. But the capitation tax shall not exceed one dollar a year and shall be applied exclusively to common school purposes.”

We fail to see wherein Chapter 6208 violates in any way the provisions of Sections 1 and 2 of Article VIII of the State Constitution and we are not enlightened upon this point by the appellant either in his brief or oral argument, therefore we content ourselves with simply announcing- that no violation of such sections has been made to appear to us. Neither has the appellant succeeded in demonstrating wherein the provisions of either Section 3 or Section 5 of Article IX of the State Constitution have been violated by such Chapter. As we held in State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929, following prior decisions of this court therein cited, “Our State Constitution is a limitation upon power, and unless legislation duly passed be contrary to some express or implied prohibition contained in the constitution, the courts have no authority to pronounce it invalid.” We likewise held in this case: “The reasonableness or justice of a deliberate act of the Legislature, the wisdom or folly thereof, the policy or motives prompting- it, so- long as the act does not contravene some portion of the organic law, are matters for legislative consideration and are not subject to- judicial -control. The courts are bound to uphold a statute, unless it is clearly made to appear beyond a reasonable doubt that it is unconstitutional.”

In Davis v. Florida Power Co., 64 Fla. 246, 60 South. Rep. 759, Ann. Cas. 1914 B 965, we held: “Where a statute does not violate the Federal or State constitution, the legislative will is supreme, and its policy is not subject to review by the courts, whose province is not to regulate, but to effectuate the policy of the law as expressed in valid statutes.” Also see McNeil v. Webeking, 66 Fla. 407, 63 South. Rep. 728; City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769, Ann. Cas. 1915 D 99; Anderson v. City of Ocala, 67 Fla. 204, 64 South. Rep. 775, 52 L. R. A. (N. S.) 287; Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 South. Rep. 282; Noble v. State, 68 Fla. 1, 66 South. Rep. 153; Jordan v. Duval County, 68 Fla. 48, 66 South. Rep. 298; Peninsular Casualty Co. v. State, 68 Fla. 411, 67 South. Rep. 165; Pinellas Park Drainage Co. v. Kessler, 69 Fla. 558, 68 South. Rep. 668; State v. Phillips, 70 Fla. 340, 70 South. Rep. 367; Ex Parte Powell, 70 Fla. 363, 70 South. Rep. 293; Ex Parte Pricha, 70 Fla. 265, 70 South. Rep. 406. As we said in Seaboard Air Line Ry. v. Simon, 56 Fla. 545, text 551, 47 South. Rep. 1001, 20 L. R. A. (N. S.) 126, 16 Ann. Cas. 1234, “Great latitude should be accorded to the legislature in the exercise of its proper powers.”

In Jordan v. Duval County, 68 Fla. 48, 66 South. Rep. 298, we held: “The Constitution does not define or amplify the term, ‘county purposes’ for which counties may be authorized ‘to assess and impose taxes,’ and the Legislature^ in exercising its appropriate law-making functions, may determine what is a ‘county purpose,’ and the courts are not authorized to render such determination ineffectual, unless some provision of the Constitution is violated, or unless the particular enactment can have no legal or practical relations whatever to any ‘county purpose.’ ” See also Cotton v. County Commissioners of Leon County, 6 Fla. 610; Stockton v. Powell, 29 Fla. 1, 10 South. Rep. 688, 15 L. R. A. 42; County Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339, 29 L. R. A. 416.

We fail to see wherein any of the sections of the two Articles of the State Constitution which we have copied above and upon which the appellant relies to support his contention have been violated by Chapter 6208 of the Laws of Florida. As we have previously said, the appellant, upon whom the burden rests, has not succeeded in convincing us that any of the provisions of such Chapter which he has attacked are in conflict with the State Constitution. We think that the reasoning in the cases which we have just cited effectually disposes of this contention of the appellant adversely to him. Especially is this true of Pinellas Park Drainage District v. Kessler, supra, and Jordan v. Duval County, supra.

It is also suggested by the appellant in his brief, though not strenuously insisted upon, that Chapter 6208 of the Laws of Florida is also violative of Section 16 of Article III of the State Constitution, which reads as follows: “Each law enacted in the legislature shall embrace but -one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such a case the act, as revised, or section, as amended, shall be re-enacted and published at length.”

We have often had occasion to construe this section and what we have said repeatedly in the different opinions which we have rendered makes further discussion unnecessary. We content ourselves with referring to State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929, wherein numerous prior decisions of this court are cited, and the recent cases of Ex Parte Pricha, 70 Fla. 265, 70 South. Rep. 406; Ex Parte Powell, 70 Fla. 363, 70 South. Rep. 392; Ex Parte Gilletti, 70 Fla. 442, 70 South. Rep. 446; and stating that under the principles announced in these cases this contention of the appellant cannot be upheld.

The third proposition of law upon which the appellant relies, as set forth in his brief, is somewhat lengthy, and we do not consider it necessary to copy it in full. In effect, it is contended that the bond issue in question is illegal for the reason that it is proposed to construct roads and streets from the proceeds arising from the sale thereof within the corporate limits of the City of DeLand, whereas Chapter 6678 of the Laws of Florida, Vol. 2 of the Acts of 1913, page 298, being entitled, “An Act to Abolish the Present Municipal Government of DeLand, Volusia County, Florida, and to Organize a New City Government for the Same and to Provide for Its Jurisdiction and Powers,” gives such City of DeLand exclusive control over the streets within its limits, whereas if such bond issue is permitted to stand certain streets within the city will be paved from the proceeds derived from the levy of a tax on property outside of the limits of the city together with property situated within, such limits. It is contended that the bond issue which is here questioned violates Sections 20, 51 and 52 of such Charter Act, Chapter 6678. Section 20 is quite lengthy, setting forth the powers conferred, upon the City Council of the City of DeLand. The portion thereof upon which the appellant relies and which he has copied in his brief is as follows:

“The City Council shall * * * within the limitation of this act have power by ordinance to levy and collect taxes upon all property, privileges and professions taxable by law for State purposes * * * to- regulate and provide for the construction» of streets and paving the same, and for the construction and repairs of sidewalks and foot pavements, and if the owner or owners or agents, of any lot or parcel of land abutting thereon, or thereto, shall fail to comply with the provisions of any ordinance or resolution of the City Council ordering any such improvements within such time as may be prescribed thereby, the City Council or any person or persons duly authorized by them may contract for such construction, improvements or repairs, and the city shall pay for the same and the amount so paid shall be a lien on said lot or parcel of land, which may be enforced by a suit at law or equity, and the amount recovered against the owner or owners by suit before the Circuit Court of the County * * * . The City Council may by ordinance or resolution provide for the payment of any part of the cost of such work or improvements out of the general ‘tax. The reasonable cost of such construction, improvement or repair shall be assessed against said property, and shall be a lien thereon. * * * to- take and appropriate private grounds and private property in manner and form provided by law for the condemnation for widening streets or parts thereof, or for extending' the same, or for laying ‘out any streets, avenues, alleys or squares, parks or promenades, where the public convenience may require it, and to assess the costs and expenses pro rata for such improvement upon the property 'specially beneñted thereby-; to require parties or their agents owning property within the city to bring the same to a topographical level by filling or excavations as shall be necessary, the city having and exercising the same right of lien and its enforcement as provided in case of sidewalks and pavements when said work or excavations or filling in shall be done by the city.”

Sections 51 and 52 of such Chapter are as follows:

“Sec. 51. All property, real and personal, in the City of DeLand, not expressly exempted by the laws of the State, shall be subject to taxation by the City of DeLand.

Sec. 52. The City shall have the power to make its own assessment of taxes.”

As is also stated by the appellant in his brief, this Chapter 6678 has not been repealed or modified, except by Chapter 7145 of the Laws of Florida (Vol. 2 of Acts of 1915, page 448,) in certain particulars which do not affect the point now under consideration. In effect, this Charter Act of the City of DeLand simply confers the powers usually conferred by the Legislature upon municipalities in this State, setting' forth such powers somewhat in detail. It will be borne in mind, as we have previously said, that Chapter 6208 of the Laws of Florida was enacted by the Legislature at its session in 1911, and was amended in certain important particulars by Chapter 6879 of the Laws of Florida, enacted by the Legislature at its session in 1915, while Chapter 6678, forming the Charter Act of the City of DeLand was enacted in 1913 and was amended in certain respects by Chapter 7145 enacted in 1915.

It seems to us that what we have said in discussing the first proposition of law advanced by the appellant practically disposes of the third proposition adversely to his contention. We see no conflict in Chapter 6208, as amended by Chapter 6879, and Chapter 6678, in any of the particulars pointed out by the appellant. We are all the more strengthened in this conclusion by the provisions contained in Section 7 of Chapter 6208, which section is as follows:

“That the construction, repair and maintenance of the roads and bridges in said Special Road and Bridge District or Districts shall at all times, be subject to the supervision and control of the Board of County Commissioners. And the said Board of County Commissioners is hereby granted and empowered with the right of Eminent Domain, whenever it may become necessary to exercise the same, for the purpose of opening up, widening or straightening roads, or constructing bridges, or for the purpose of obtaining earth, rock, stone, shell, marl, clay, timber, or other material to be used in the construction, repair or maintenance of the roads and bridges as provided for in this Act. And whenever any of the roads or bridges proposed to’ be constructed under the provisions of this Act, are located within the territorial boundaries of one or more incorporated cities or towns, the County Commissioners shall have the right of Eminent Domain and control over such streets or territory within such municipality as may be necessary for constructing and maintaining the public highways and bridges and the approaches thereto as provided for in the Special Election held under the authority of this Act.”

We held in State v. Jacksonville St. R. R. Co., 29 Fla. 590, 10 South. Rep. 590, “The dominant control of highways and streets is. vested in the legislative power of the State,” and in County Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339, 29 L. R. A. 416, we held, “The Legislature exercises plenary control over public highways, whether they be public county roads or streets in cities and towns.” The last cited case is quite instructive upon several points involved in the instant case. We would also refer to our discussion in Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747, as to “the bounds of wide discretion that should be accorded to the legislature in the interest of the public welfare.” Also see Skinner v. Henderson, 26 Fla. 121, 7 South. Rep. 464, 8 L. R. A. 55, and State v. County Commissioners of Putnam County, 23 Fla. 632, 3 South. Rep. 164.

As we said in Edwards v. City of Ocala, 58 Fla. 217, text 219, 50 South. Rep. 421, “There is no express provision in the constitution as to special assessments for local improvements,” which we quoted with approval in Anderson v. City of Ocala, 67 Fla. 204, text 212, 64 South. Rep. 775, 52 L. R. A. (N. S.) 287. It is further true that there is no express provision in the constitition as to the formation of taxing districts for particular purposes. As is well said by Judge Cooley on page 234 in his valuable work on Taxation (3rd ed.), “When the nature of the case does not conclusively fit it, the power to determine what shall be the taxing district for any particular burden is purely a legislative power, and is not to be interfered with or controlled, except as it may be limited or restrained by constitutional provisions.” This principle is well supported by the authorities cited in the notes. It is further true, as is said by the distinguished author on page 238 of the work cited, “It is not essential that the political districts of the State shall be the same as the taxing districts, but special districts may be established for special purposes, wholly ignoring the political divisions.” We would also refer to the several pages following this statement, and the authorities cited in the respective notes. Also see 27 Amer. & Eng. Ency. of Law (2nd ed.) pages 911 to 915, and the authorities there cited.

The fourth and last proposition upon which the appellant relies is stated in his brief as follows:

“The fourth proposition is that the said bond issue is illegal and void, because the petition calling for the special bond election did not set out in general terms a description and a proposed location of the roads and bridges to be constructed, together with the amount estimated as being necessary with which to pay for the construction of same, because said petition calling for a special election did set out and give a general description of some five or more different materials of which said roads might be constructed, and because no general description of the width of the bridges was given or the consistency' of the materials to be used in their construction, and further, because said petition for special bond election did not state the kind of bonds to be issued, the number of years they were to run, or the amount of interest the proposed bonds were to bear, for failure of which said bond issue is illegal and void, which same objections as have been above stated may be addressed to the order of the county commissioners calling for a bond election and a notice of election for bonding.”

We have already extended this opinion to a greater length than is desirable, so shall not discuss in detail the various and sundry respects in which it is contended, by the appellant that the bond issue is illegal and void for failure to comply with the statutory requirements. Suffice it to say that we have carefully read the transcript of the record, bearing in mind these contentions of the appellant and after so doing are of the opinion that there has been a substantial compliance with such statutory requirements. The State Attorney in his answer to the petition, which we have copied above, recites that he has carefully examined all of the proceedings and finds that all of the requisites have been performed and complied with and that he sees no reason why such bonds should not be validated, while the Circuit Judge in his decree found that “all proceedings heretofore had and taken in connection with the issuing of said bonds are regular, legal and proper.”

As we have held time and again, every presumption is in favor of the correctness of an order or decree rendered by a Circuit Judge, and that the burden rests upon one appealing from such order or decree to overcome this presumption of law. We think that the appellant has failed to meet this burden.

Order affirmed.

Taylor, C. J., and Whitfield and Ellis, JJ., concur. Cockrell, J., takes no- part.