State of Fla. Ex Rel. Johnson v. Johns

Quo Warranto. Original Jurisdiction. STATEMENT. There was filed in this court the following: "INFORMATION. "John B. Johnson, Attorney General of the State of Florida, who sues for the people of said State in this behalf, comes into court here on this day and for said State and in the name and by the authority thereof gives the court here to understand and be informed that Paul R. Johns, David Fessler, R. A. Young, M. C. Frost, and I. T. Parker have for the space of ninety (90) days and more last past usurped and do usurp to be a municipal corporation under the name of the City of Hollywood, in Broward County, Florida; and that they claim to be the City Commissioners of said City, and as such do perform and exercise all the liberties, privileges and franchises of an incorporated city, usurping to be a municipal corporation to the prejudice and wrong of the people of the State of Florida; and the Attorney General further gives the court here to understand and be informed that said pretended corporation of the City of Hollywood has never been organized according to law and is without legal existence, and that the statute under which its corporate existence is claimed is unconstitutional and void, and that the defendants, the persons attempting to hold such offices and enjoy such franchises, do so without lawful authority, to the prejudice and wrong of the people of the State of Florida.

"WHEREUPON, the said Attorney General for the said State, in the name and by the authority thereof, prays the consideration of the court here in the premises and due process of law in this behalf to Paul R. Johns, David Fessler, R. A. Young, M. C. Frost, and I. T. Parker to answer to the said State by what warrant or authority of law they claim to exercise offices, franchises, liberties and powers as aforesaid.

J. B. JOHNSON, Attorney General of the State of Florida.

VINCENT C. GIBLIN, Attorney for said Attorney General."

The following writ was issued:

"IN THE NAME OF THE STATE OF FLORIDA,

TO ALL AND SINGULAR THE SHERIFFS OF THE STATE OF FLORIDA:

"You are hereby commanded to summons the defendants, Paul R. Johns, David Fessler, R. A. Young, M. C. Frost, and I. T. Parker, that they be before this Court on Monday, April 12th, 1926, to show quo warranto (by what right), or by what warrant or authority of law, they claim to exercise offices, franchises, liberties and powers as the City of Hollywood, a pretended corporation.

"Witness my hand and the seal of the Supreme Court at Tallahassee, the Capital of the State, this 6th day of April, A.D. 1926.

G. T. WHITFIELD, Clerk of the Supreme Court."

Other proceedings appear in the opinion. On the relation of the Attorney General upon allegations of the usurpation of municipal powers and offices of a pretended municipality, a writ in quo warranto proceedings was issued from this court commanding Paul R. Johns, David Fessler, R. A. Young, M. C. Frost and I. T. Parker, to answer to the State by what warrant or authority of law they claim to exercise the offices, franchises, liberties and powers as city commissioners of the City of Hollywood, Broward County, Florida. See 4 Cow. (N.Y.) 106, Note: Town of Enterprise v. State, 29 Fla. 128,10 South. Rep. 740; 32 Fla. 545. The joint and several answers of the respondents follows:

"Now comes the defendants, Paul R. John, David Fessler, R. A. Young, M. C. Frost and I. T. Parker, and each of them, by their attorney, and file this, their joint and several answer to the information in the above styled cause, and for answer to said information, the defendants, and each of them, say that they enjoy and perform the duty, power and franchises of City Commissioners of the City of Hollywood, Florida, by virtue of Chapter 11519 of the Acts of the Legislature of the State of Florida, approved November 25th, 1925, and the said defendants, and each of them, further say that the said act is in all respects constitutional and valid, and lawfully constitutes a municipal corporation, under the laws of Florida, known as the City of Hollywood, in Broward County, Florida, and that the defendants, and each of them, hold their respective offices in said City of Hollywood in conformity with and by virtue of the provisions of said Chapter, as contained in said Legislative Act, and that the said defendants have vested in them, as such City Commissioners, all powers of said City of Hollywood."

The relator presented the following demurrer to the answer:

"1. That Chapter 11519 of the Acts of the Legislature of the State of Florida, approved November 25, 1925, under and pursuant to which the defendants purport to perform and enjoy the duties, powers and franchises of city commissioners of the municipal corporation, as in and by their said joint and several answer alleged and set forth, is invalid and void, in that Section 1 of Article III thereof attempts, seeks and purports to deprive the people of the community embraced and included within the purported boundaries of the municipality attempted to have been created and organized in and by said act of their inherent and organic right of local self-government.

"2. That Chapter 11519 of the Acts of the Legislature of the State of Florida, approved November 25, 1925, under and pursuant to which the defendants purport to perform and enjoy the duties, powers and franchises of city commissioners of the municipal corporation, as in and by their said joint and several answer alleged and set forth, is invalid and void, in that Section 1, of Article III thereof attempts, seeks and purports to deprive the people of the community embraced and included within the purported boundaries of the municipality attempted to have been created and organized in and by said act of their inherent and organic right to choose the officers of their local government."

Chapter 11519, Acts of 1925, the title being "AN ACT to Create, Establish and Organize a Municipality in the County of Broward and State of Florida, to be Known and Designated as the City of Hollywood and to Define Its Territorial Boundaries, and to Provide for Its Government, Jurisdiction, Powers, Franchises and Privileges," contains the following:

"ARTICLE III. City Commission. Section 1. Created. — The corporate authority of the City of Hollywood shall be vested in and governed by a Commission consisting of five members whose term of office shall be for a period of four years.

"J. W. Young, David Fressler, J. M. Young, Paul R. Johns and R. A. Young shall constitute the first Commission, and they shall hold office for four years and until their successors are elected and qualified. The first election of Commissioners shall be held on the first Tuesday in November in the year Nineteen Hundred and Twenty-nine, and every four years thereafter. Commissioners shall take office at noon on the third day after their election. Any vacancy on the Commission shall be filled for the unexpired term by the remaining Commissioners." Counsel for the relator contends that the quoted statutory provision is unconstitutional "in that it deprives the people of the City of Hollywood of the right of local self-government."

The principle of local self-government is predicated upon the theory that the citizens of each municipality or governmental subdivision of a State should determine their own local public regulations and select their own local officials; but the extent to which and the manner in which the principle may be made applicable, depends upon the provisions of controlling organic and statutory laws of the particular state. See Mayor, etc. of City of Americus v. Perry, 114 Ga. 871,40 S.E. Rep. 1004, 57 L.R.A. 230, 6 R. C. L. 23; 21 Fla. 280;44 Ohio St. 348, 89 S.W. 985. The legislature has plenary power over municipalities except as restrained by the Constitution. Sec. 8, Art. 8, Const. Municipal officers are statutory officers subject to legislative action; and the right to vote in municipal elections is controlled by statute and not by organic provisions relating to State elections. See State ex rel. Attorney General v. Dillon, 32 Fla. 545, 14 South. Rep. 383. Municipal corporations have, in the absence of constitutional provisions safeguarding it to them, no inherent right of self-government which is beyond the legislative control of the State, 262 U.S. 182, 43 Sup. Ct. Rep. 534; 29 A. L. R. 1471, 55 L.R.A. 740; 48 L.R.A. 465; 50 L.R.A. 330; 1 Dillon Munic. Corp. (5th Ed.), Sec. 98.

Whatever may be the holdings in other States that the citizens of the several municipalities in a State have the inherent right to select their municipal officers, and that such right cannot be abrogated by statutes unless authorized by the constitution of the State, (12 C. J. 754), in this State the herein quoted provisions of the organic law give to the legislature express power to establish municipalities and to provide for their government, which includes authority to determine the form of the municipal government and to designate the persons or the method of selecting the persons who shall exercise the municipal authority when no other provision of the constitution is thereby violated; and the provisions of the statute herein challenged, that the corporate authority of the municipality shall be vested in a commission consisting of five members whose term of office shall be four years, and that designated persons shall constitute the first commission to hold office for four years and until their successors are elected and qualified, and that any vacancy on the commission shall be filled for the unexpired term by the remaining commission, are authorized by Section 8, Article VIII of the State Constitution and such provisions do not violate any other section of the constitution.

Section 24 of the Declaration of Rights contains the following:

"This enumeration of rights shall not be construed to impair or deny others retained by the people."

This organic section does not so qualify or modify the express provision of Section 8, Article VIII, as to deprive the legislature of any power conferred by the latter section; and the power exercised in this case by the legislature is clearly within the scope of its express authority.

The constitution does secure "certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and obtaining safety," and provides that "all political power is inherent in the people. Government is instituted for the protection, security and benefit of the citizens, and they have the right to alter or amend the same whenever the public good may require" (subject to the Federal Government). Secs. 1, 2, Dec. of Rights. The Constitution also requires the legislature to "establish a uniform system of county and municipal government, which shall be applicable except" where inconsistent local or special laws are enacted, (Section 24 Article III) and further provides that "the legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time." Sec. 8, Art. VIII. The organic law contains no express provision relative to the right of "local self government" and the provision of Section 27, Article III, requiring officers to be elected by the people or appointed by the Governor is expressly confined to "all State and county officers not otherwise provided for by the Constitution." Such provision, therefore, does not apply to municipal officers. The corresponding provision of the constitution of 1868 included municipal officers.

Section 1, Article III of the constitution provides that "The legislative authority of this State shall be vested in a Senate and House of Representatives, which shall be designated 'The Legislature of the State of Florida'," Under this provision the legislature may exercise any lawmaking power that is not forbidden by the organic law of the land. Stone v. State,71 Fla. 514, text 517, 71 South. Rep. 634.

The lawmaking power of the legislature of a State is subject only to the limitations provided in the State and Federal Constitutions; and no duly enacted statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that under any rational view that may be taken of the statute, it is in positive conflict with some identified or designated provision of constitutional law.

A statute should be so construed and applied as to make it valid and effective if its language does not exclude such an interpretation.

Where a statute does not violate the Federal or State Constitution, the legislative will is supreme, and its policy is not subject to judicial review. The courts have no veto power and do not assume to regulate State policy; but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law. City of Jacksonville v. Bowden, 67 Fla. 181, 64 South. Rep. 769.

Whatever the phrase "local self government" may mean in government, the constitution of this State contains no express provision with reference thereto and there are no provisions of the organic law that so modify the express provision of Section 8, Article VIII of the Constitution that "the legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time," as to withold from the legislature the power to designate by statute the particular persons who shall exercise the power of a municipality created by statute, such power to designate being a part of or incidental to the quoted organic power to establish municipalities, to provide for their government and to prescribe their jurisdiction and powers. See 1 McQuillan Munic. Corp. Sec. 176.

The court should not declare a statute to be void or inoperative on the ground that it is opposed to a spirit that is supposed to pervade the constitution, or because the statute is considered unjust or unwise or impolitic. Wooten v. State,24 Fla. 335, 5 South. Rep. 39; Cooley's Const. Lim. (7th ed) p. 240; 12 C. J. 702; 6 R. C. L. 104; 3 A. L. R. 270; 199 Pa. 534, 53 L.R.A. 837.

In exercising the powers expressly conferred by Section 8, Article VIII, the legislature must not violate any other provision of organic law; but no other provision or organic law is violated by the quoted statute which designates the persons in whom the corporate authority of the city shall be vested. "The principle of local self government" is not operative to nullify a legislative enactment that does not violate any express or implied provision of the State or Federal constitution. The enactment here challenged is clearly authorized by the quoted organic provision, and it does not abridge any organic right.

The demurrer to the answer is overruled and the writ quashed.

TERRELL AND BUFORD, J. J., concur.

ELLIS AND STRUM, J. J., concur in the opinion.

BROWN, C. J., dissents.