State Ex Rel. Himes v. Culbreath

In the years 1936 and 1937, the County of Hillsborough, due to the conditions prevailing during those and prior years, became involved in financial obligations, the validity of many of which were questioned, entailing an unusual and perhaps extraordinary amount of litigation. The employment of special counsel appeared to the Budget Commission and Board of County Commissioners necessary to the satisfactory and efficient handling of such litigation. In this situation the County Budget Commission of Hillsborough County provided in its 1936-1937 Budget for the employment of special counsel to assist the County Attorney in the defense of the litigation in which the County was involved and the Board of County Commissioners of the County employed the Relator, W.F. Himes, as such assistant counsel for a period of six months beginning with April 1, 1937, and ending September 30, 1937, at an agreed compensation of $2500.00 to be paid him for such services.

The relator entered upon his duties as such special counsel and on the 12th day of April, 1937, rendered a bill to the Board of County Commissioners for the sum of $1000.00 to be paid on account of said contract for special services and said bill was audited, approved and ordered paid by the Board of County Commissioners, which directed a warrant to be issued upon the First National Bank of Tampa, one of the depositaries of the County, payable out of the funds of the County. The warrant was duly issued and signed by the Chairman of the Board of County Commissioners and was required by the Board to be attested and signed by the Clerk of the Board, C.E. Culbreath, the Respondent in this case.

Mr. Culbreath declined, as Clerk of the Board, to sign and attest the warrant upon the ground that he was precluded from doing so by Chapter 16,461, Laws of Florida, Acts of 1933, which, in his view, limits the power of the Board of County Commissioners in the matter of the employment of counsel and restricts it to the employment of a County Attorney, who had already been engaged and was acting in such capacity.

An alternative writ of mandamus, upon the application of Mr. Himes, was issued by this Court on the 15th of April, 1937, directed to C.E. Culbreath, as Clerk of the Board of County Commissioners, commanding him to attest the warrant so issued and affix the corporate seal of the County of Hillsborough thereto and deliver the same to the Relator, Mr. Himes, or to show cause why he failed to do so.

The respondent, C.E. Culbreath, answered the alternative writ admitting the allegations thereof and submitting to this Court for adjudication the question whether Chapter 16,461, supra, is a valid statute and whether it is the duty of the respondent to sign and attest and affix the corporate seal of the Board of County Commissioners of Hillsborough County to the warrant mentioned in the alternative writ and deliver the same to the relator.

The County of Hillsborough, by T.N. Henderson. Chairman of the Board of County Commissioners, also interposed an answer to the alternative writ in which also the allegations of fact in the alternative writ were admitted to be true and set forth fully the financial transactions in which the County had become involved and the litigation springing therefrom and the necessity for the engaging of special counsel in the interests of the County to aid the County Solicitor in such matters.

Upon the coming in of the answer the Relator moved this Court for the issuing of a peremptory writ in conformity to the commands of the alternative writ.

The powers, duties and compensations of Boards of County Commissioners under the Constitution of this State are required to be prescribed by law. See Sec. 5, Art. VIII, Constitution of 1885.

While the Boards of County Commissioners are constitutional officers, their powers and duties are required to be fixed by statute, and they have such powers only as are conferred by statute. Bowden v. Ricker, 70 Fla. 154, 69 South. Rep. 694; Stephens v. Futch, 73 Fla. 708, 74 South. Rep. 805. State v. Walton County, 93 Fla. 796, 112 South. Rep. 630.

Section 2153 of the Compiled General Laws 1927, provides among other things that the Board of County Commissioners shall have power to represent the County in the prosecution and defense of all legal causes. Among the sixteen powers which are by that Section of the Statute conferred upon the Board of County Commissioners the one empowering it to represent the County in the prosecution and defense of all legal causes is made the subject of a separate paragraph. The language contained in the grant of that power by the Legislature necessarily vests in the Boards of County Commissioners, which are the fiscal agents of the Counties and intrusted with the care and management and direction and control of their properties and their public works and in whom is vested also by that section the power of taxation for specific and general purposes, broad discretionary powers to the end that the interests of the counties in all legal causes and controversies in which they may be involved shall be adequately served.

The prosecution and defense of legal causes must necessarily, under the system of jurisprudence obtaining in this country, be done by legal representatives in the courts provided by law for the adjudication of controversies. The power carries with it the necessary implication therefore that counsel may be employed by the Boards of County Commissioners whenever in the judgment of such Boards the interests of the counties require the services of counsel in the courts, whether state or federal, within whose jurisdiction the controversies in which the counties are interested may lie.

Nor would it be beyond the limitations of reasonable discretion for the Boards to employ legal counsel for advice concerning the powers and duties of such Boards in relation to any property or public works of which the counties may have possession or in which they may be engaged to the end that the best interests of the counties may be subserved therein.

Chapter 11911 of the Acts of 1927 entitled: "AN ACT Creating the Position of County Attorney authorizing Boards of County Commissioners in the Several Counties of the State to Employ Such an Attorney, Fixing the Term of Such Employment and Prescribing the Duties of Such Attorney in all of the Counties of the State of Florida, Having a Population of One Hundred and Fifty Thousand (150,000) or Over, According to the Last Preceding Census Authorized by the Legislature of the State of Florida," Sections 1, 2 and 3 of which were carried into the Compiled General Laws of 1927 as Sections 2182 and 2183, is a general Act applicable to Counties containing a population of 150,000 or over, according to the last preceding census authorized by the Legislature of the State of Florida.

That Act authorizes the Board of County Commissioners in counties of that class to employ an attorney, to advise the Board in each such county upon the legal matters coming before it and to act as attorney for the county or the Board of County Commissioners as the case may be in all suits where the interests of the county are involved, or the official duties of the Board of County Commissioners are involved, and generally to attend to all legal matters for the County which come under the jurisdiction of the Board of County Commissioners.

In the brief filed in this case by Mr. J.P. Marchant and Mr. William K. Love, as Amici Curiae, it is suggested that such Act is a limitation of the general power conferred by Section 2153 C.G.L., supra, and restricts the larger counties in the State to the employment of one attorney only, imposing upon him only the duty of attending to all legal matters, whether in litigation or not, in which the larger counties of the class created by the Act may be interested.

Such an interpretation of the law would seem to defeat the purpose which Chapter 11911, supra, was designed to accomplish. As stated, the Legislature by general Act applicable to all counties, whether small or large, has vested in all Boards of County Commissioners the discretion of engaging as many attorneys as the necessities of their respective counties may require. It would seem that to limit the exercise of that discretion to the employment of one attorney in the larger counties of the class created by the Act, whose property and legal interests might reasonably be supposed to be increased in proportion to the growing population of such counties and to require more legal assistance, would be to restrict the exercise of the powers of Boards of Commissioners in such counties in representing "the County in the prosecution and defense of all legal causes," rather than to facilitate the exercise of such general power which was the evident purpose of the Act.

Assuming that the growth in population in all counties carries with it an increase of property interests and public works, all of which necessarily involves the making of contracts, the assuming of obligations, which produce correspondingly an increasing demand for legal advice and counsel, an Act having for its purpose the limitation of the powers of the fiscal agents of the counties, who are the Boards of County Commissioners, in obtaining the necessary legal assistance to adequately discharge the duties of the Boards in such large counties, would be a sort of faux pas, false stroke in legislation, which would defeat the demand or necessity which the growing population of the larger counties ipso facto created. The function of statutory construction is to further and not defeat the purpose of Legislation. 59 C.J. 961, State v. Rose, 97 Fla. 710,122 South. Rep. 225, text page 233.

We are therefore of the opinion that Chapter 11911, Acts of 1927, supra, is not a limitation upon, but an extension of, the general powers of Boards of County Commissioners in the matter of representing the counties in the prosecution and defense of all legal causes.

This brings us to the consideration of Chapter 16461, Acts of 1933, which was a special Act applicable to Hillsborough County alone and is entitled as follows:

"AN ACT Authorizing and Empowering the Board of County Commissioners of Hillsborough County, Florida, to Employ a County Attorney and Providing that Said County Attorney Shall be the Legal Adviser of and Shall Represent, in All Matters of Litigation or Otherwise, All Political Subdivisions, Governmental Agencies and Special Tax or Other Districts thereof, and All Officers, Boards and Commissions of Said County, and Prohibiting All Political Subdivisions, Governmental Agencies and Special Tax or Other Districts Thereof, and All Officers, Boards and Commissions of Said County, from Employing Any Other Attorney or Legal Adviser, to be Paid for from the Public Funds, except Municipalities Within Said County and Political Subdivisions, Governmental Agencies and Special Tax or Other Districts Located Partly Within Said County and Partly Without Said County; to Fix the Compensation of the Said County Attorney; Providing for the Appointment of Two Assistants to the County Attorney and Fixing the Compensation of Each; Providing for the Office Help and Expenses for Said County Attorney; Providing Offices and Supplies for Said County Attorney and Prohibiting the Employment by said County or Any Subdivision, Agency, District, Officer, Board or Commission of Said County, of Any Other Attorney, by Contract or Otherwise, for the Foreclosure of Tax Levies or Certificates or Special Assessments of Any Kind and Providing that Said County Attorney or Assistant County Attorneys Shall Not Receive Any Compensation Other Than is Fixed in This Act, and Providing That Said County Attorney Give a Bond, Conditioned Upon the Faithful Performance of His Duties and for a True Accounting of All Property or Money of the County that May Come into His Possession."

The Act affects the powers and duties of the Board of County Commissioners of Hillsborough County in the matter of the exercise of the general duty and power to represent the County in the prosecution and defense of all legal causes. It restricts the Board to the employment of an attorney residing in the County who has been practicing for at least five years in that County and thus deprives the Board of the power to engage counsel residing in other sections of the State to represent the County in litigation that may be pending in courts other than those established in and for Hillsborough County, and whose employment might in the discretion of the Board in the exercise of its general power facilitate the transaction of County business. See Sections 1 and 2, Chapter 16461, supra.

The Act transfers to the County Attorney the discretion of the employment of assistants and limits the amount to be paid such assistants by the County, thus depriving the Board of the exercise of the power of engaging legal interests of the County require such assistants. See Sec. 4, Chapter 16461, supra.

The Act is an express limitation upon the powers, if any exist, of all County officers or agencies in the matter of the employment of legal assistants in the collection and enforcement of tax levies and assessments. See Sec. 7, CHAPTER 16461, supra.

The Act contains an express provision that if it shall be held inoperative or invalid in requiring any particular political subdivision, governmental agency, district, officer, board or commission, to rely exclusively on such County Attorney as its or their attorney, then the entire Act shall be held inoperative as to all other such agencies. See Sec. 9, Chap. 16461, supra.

The relator contends that the Act is a special and local Act regulating the jurisdiction and duties of officers of the County of Hillsborough and particularly the Board of County Commissioners of that County and should under the provisions of the Constitution be general and of uniform operation throughout the State. See Sects. 20 and 21 of Article III of the Constitution of 1885. See Knight v. Board Pub. Inst. Hillsborough County, 102 Fla. 922, 136 South. Rep. 631; Whitney v. Hillsborough County, 99 Fla. 628, 127 South. Rep. 486; Stripling v. Thomas, 101 Fla. 1015, 132 South. Rep. 824; Jordan v. State, 100 Fla. 494, 129 South. Rep. 747; Anderson v. Board Pub. Inst., 102 Fla. 695, 136 South. Rep. 334; Pierce v. State,ex rel. Trustees Special Tax School District No. 23, 103 Fla. 1032,136 South. Rep. 689.

We are not concerned in this case with the validity of any classification of counties which might convert a similar statute into a general statute resting upon a sound classification because in the case before us the Act, Chapter 16461, supra, does not purport to be anything but a special and local Act applicable only to the County of Hillsborough, therefore the only question is whether the powers and duties imposed upon the Board of County Commissioners, and other county agencies of the County of Hillsborough by this Act respecting the employment of counsel or the procurement of legal assistance, is in fact a regulation of the jurisdiction and duties of the officers of Hillsborough County, or any of them.

The case of Kreogel v. Whyte, 62 Fla. 527, 56 South. Rep. 498, does not conflict with the views herein expressed that the authority and duties of the County Commissioners "to represent the County in the prosecution and defense of all legal causes" is a general duty appertaining to all Boards of County Commissioners throughout the State because in the Kroegel case, supra, it is pointed out that the Act authorizing the Board of County Commissioners of the certain County to levy a tax to meet the expenses incident to a public work not general to all the counties is a "mere incident to and the necessary concomitant with the power" existing "in the Legislature to authorize by special or local Act, a county to levy a tax for a lawful county purpose." Text 530.

That County purpose may be the engaging in a public service or public utility which because of the geographical location of the County is peculiarly applicable to that County, and the engaging in such enterprise may by special Act be declared to be a County purpose as to the particular County. The levying of a tax to raise funds for the execution of that duty applicable specially and particularly to the County by reason of its geographical location or other distinguishing or peculiar feature is a power which is merely incident and concomitant with the power and duty lawfully created by special Act, and consequently not amenable to the criticism that the power to levy such tax is an infringement upon the inhibitions found in Sections 20 and 21, Art. III, Constitution. Such is the theory of the case of Lainhart v. Catts, 73 Fla. 735, 75 South. Rep. 47.

The requirement of the Constitution is that laws relating to the jurisdiction and powers of all classes of officers, except municipal officers, shall be general and of uniform operation. A law may be general, although not of universal operation, the generality of the statute resting upon a sound basis of classification which would necessarily exclude a universal operation throughout the State as not affecting certain counties lying within that classification, but it would nevertheless be of uniform operation among all counties falling within the proper classification.

We are not concerned, however, with that proposition because Chapter 16461, supra, purports to be nothing else than a special and local law, and, inasmuch, as it does attempt to regulate the jurisdiction and duties of the Board of County Commissioners of Hillsborough County only in the matter of their general duty and power to represent that County in the prosecution and defense of all legal causes, we hold the Act to be invalid as being in conflict with the inhibitions of the Constitution contained in Sections 20 and 21, Art. III, thereof.

It is therefore considered, ordered and adjudged that the peremptory writ of mandamus do issue in conformity with the mandate of the alternative writ.

So ordered.

TERRELL, BROWN, and BUFORD, J.J., concur.

WHITFIELD, P.J., not participating on account of illness.