State ex rel. Attorney-General v. Burns

38 Fla. 367

• Court: Supreme Court of Florida
• Decided: June 15, 1896
• Status: Published

Opinions

Mabry, C. J.:

The title of the act, Chapter 4513, laws of 1895, as we must-consider it, is “An act to provide for the creation of the city of Pensacola, now known as the provisional municipality of Pensacola, and for the government of said city of Pensacola, and to provide for the support and maintenance of said government and improvement of said'city.” In the title of the enrolled bill signed by the Governor, and as published in the acts of the Legislature, the additional words “and to provide for its officers and their terms of office” are found, but we have held in the case of State ex rel. vs. Green, 36 Fla. 154, 18 South. Rep. 334, that, as shown by the journals of. the Legislature, the additional words were not in the title when the act passed the two houses of the legislative branch of the government, and could not be considered as a part of the title of the act. The body of the act contains 155 sections with general provisions, and by the first section the inhabitants of the city of Pensacola are created corporate by the name and style of the city of Pensacola. The second section divides the powers of government into legislative, executive and judicial; the legislative consisting of a Board of Aldermen, the executive of a Mayor with executive boards, and the judicial of a police court. Certain officers and servants of the corporation are provided for, such as comptroller, treasurer, tax collector, assessor, city attorney, and physician, judge of the police court, clerk, and marshal. Provisions in the act clearly show that the newly created city was constructed upon the foundation of an existing municipality. The first section, already referred to, provides that the inhabitants of the city of Pensacola are hereby created corporate, and section 124 enacts that the boundaries of the city shall, until changed as provided by statute, remain as now established by ordinance. There is nothing in the 155 sections of the act, excluding the general provisions, extending the powers of government beyond the scope and already defined limits of, the municipal grants to the existing provisional municipality. The title of the act pointedly directs attention to the existing municipality, its terms, in part, being ‘ ‘an act to provide for the creation of the city of Pensacola, now known as the provisional municipality of Pensacola.” In 1885 the Legislature passed an act, with certain, amendments, for the dissolution of municipal corporations under circumstances therein stated, and to provide provisional governments for the same, and under this act the city of Pensacola became a provisional municipality. There was passed in 1893 an act to fix the number and provide for the election of certain municipal officers of the provisional municipality of Pensacola, and to prescribe their terms of office, and regulate their compensation and duties. By this act certain designated officers for the provisional municipality were elective,, and provision was made for their elecr tion. Such was the legal status of the municipal government of Pensacola when the act of 1895, supra, was passed. Among the general provisions of this act, and the latter part of a paragraph in reference to the oath of office of the city officers and their eligibility to office, the following is found, mz: “The wharves shall be under control of the council consistent with existing-law and vested rights, and there shall be elected by the board first elected under this act, at the first meeting in the month of June, one thousand eight hundred! and ninety-five, or as soon thereafter as is possible, and every four years thereafter, one harbor commissioner. Such commissioner shall perform such duties as the preservation of deep water in the harbor may require, and shall in all matters protect the city’s interest, and require the proper discharge of ballast, ashes, refuse, sinking of timber, binders or other lumber or timber or other refuse in the harbor, either in or outside of the city limits, as may be provided by ordinance, and shall from date of his election perform all duties now performed by, and shall be invested with all the authority now conferred on the public custodian of lost timber and lumber, receiving for his services such fees as are now allowed by law to said custo dian, whose duties from the passage of this act,. and his election, shall be performed by said harbor commissioner. At the same time and for the same term of office (four years) as provided above for the harbor commissioner, a harbor master shall be appointed by the mayor and confirmed by the council, who shall perforin all the duties now performed by harbor master as set forth in section 956 of the published edition of the Revised Statutes, and from the date of his appointment shall possess all powers and have charge of ■all dulies, and be subject to all restrictions, and secure :as compensation such fees as are now provided by laty ior harbor master.” Section 956 of the Revised Statutes relate to the duties of harbor masters appointed <by the Governor for the different harbors of the State. There is a clause in the act repealing all acts or parts of acts in conflict with it. The question involved in the present case is confined to the office of harbor master, the right to which is asserted by virtue of the provision quoted. The harbor master for the port of Pensacola has not, prior to the act in question, owed his appointment or election to the municipality of Pensacola, either under its original charter, or as a provisional municipality. He has not only not been legally associated with the municipal governments of Pensacola, but has been disassociated therefrom. Provision was made in 1866 for the office of harbor master for the port of Pensacola, and for his appointment by the Governor, and from that time down to the act of 1895 the office has been filled by the Governor, by and with the consent of the Senate. The defendant in error is the Governor’s appointee to the office, and he was in office when the act was passed, and continues to hold the same. In our opinion the provision in the municipal act of 1895 relating to the appointment of harbor ■master has not been constitutionally enacted, and the attempt to pass it offends the 16th section of Article III of the Constitution. This section provides that “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 case the act, as revised, or section, as amended, shall be re-enacted and published at length.” Under this provision the title of an act becomes essentially important as it has the effect to control the provisions of an act and restrict them to matters properly connected with the subject expressed in the title. We have held’ in the case referred to (State ex rel. vs. Green) that the title to the act in question, after eliminating the added words, was sufficient to authorize the provisions in the body of the act in reference to the election of municipal officers for the city. The right to the office of alderman under the new charter was involved in that case, and no doubt existed as to the creation of such an office being strictly municipal in character. One of the leading purposes •of section 16, Article III, of the Constitution is to prevent the incorporation into one act of more than one subject and matter properly connected therewith, and thereby to arrest the abuse of what has been called * ‘log-rolling” legislation. The subject of the act must be expressed in the title, but matters of detail, or matters properly connected with the subject need not be there stated. When the title clearly expresses the whole object of the Legislature, and the provisions in the body of the act are germane to, or are properly connected with, the subject expressed in the title, an essential requirement of the constitutional provision has been met. If serious doubt exists as to whether matter found in the bill is properly connected with the subject expressed in the title, the courts decide in favor of the legislative power, and sustain the bill. County Commissioners of Duval County vs. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339. A general subject may, however, become restricted in details in the body of the act by the title. It is said in State ex rel. vs. Palmes, 23 Fla. 620, 3 South. Rep. 171, that “when the title is general the Legislature must be considered as put upon notice as to anything in the bill germane to the subject expressed. The Legislature may, however, make titles as restrictive as it pleases, and where one is so framed as to indicate that certain matters naturally connected with or germane to the subject, generally considered, are not to be treated of in the bill, it is misleading as to any legislation on such matters.” It is well established that titles to bills must not be misleading or tend to avert inquiry as to the provisions in acts. The cases cited in Webster vs. Powell, 36 Fla. 703, 18 South. Rep. 441, bearing on the invalidity of acts having false or misleading titles, need not be further discussed, but they will be found to fully sustain the doctrine stated. A further object of the constitutional requirement is to avoid surprise or fraud in legislation by means of provisions in bills, of which the titles give no sufficient notice, and to tliis end a title should fairly apprise not only the members of the Legislature, but the people to be affected, of the subject of legislation being enacted. State ex rel. vs. Green, and Webster vs. Powell, supra; State ex rel. vs. Hocker, 36 Fla. 358, 18 South. Rep. 767. The provision of the Constitution referred to is mandatory, and the correct rule is to enforce its restrictions in all cases coming within the mischiefs intended by it to be arrested, while in cases not falling within such mischiefs a liberal construction should obtain in favor of the law-making power. The office of harbor master is not provided for by the Constitution, but exists entirely by virtue of legislative enactment. Judge Cooley says (People vs. Hurlbut, 24 Mich. 44, text 103, S. C. 9 Am. Rep. 103): ‘‘For those classes of officers whose duties are general — such as the judges, the officers of militia, the superintendents of police, of quarantine, and of ports, by whatever name called — -provision has, to a greater or less extent, been made by State appointment. But these are more properly State than local officers; they perform duties for the State in localities, as collectors of internal revenue do for the .general government; and a local authority for their appointment does not make them local officers when the nature of their duties is essentially general.” It may be conceded that it is competent for the Legislature by proper legislation to make the harbor master ■of the port of Pensacola appointive by the mayor of the city of Pensacola, with the consent of the council, but such authority can not be classed among the usual municipal powers. It would be a special grant of power to the municipality. Harbors and docks connected therewith may be regulated by Congress, but in the absence of such regulation the State can exercise control over the same. We do not deem it necessary to decide whether, under a title to an act to ere. .ate an original municipality and provide for its gov■ernment, support and improvement, a provision for the •appointment of a harbor master, would be matter properly connected with the subject expressed in the title. Conceding that such a provision would be germane to such a subject expressed in the title, it is not •decisive of the present case in favor of the plaintiff in ■error, for the reason that the act in question has not the title stated. The title is to create the city of Pensacola, now known as the provisional municipality of Pensacola, and, as pointed out, the latter was an existing municipality with usual municipal powers, but having, no control whatever over the appointment of the harbor master for the port of Pensacola. The-terms used in the title, “now known as the provisional municipality of Pensacola,” are calculated to mislead as to, and avert attention from, the provision in the-act in relation to the appointment of harbor master— a matter entirely beyond the scope of the powers of the existing provisional municipality. It can not be-said. in our judgment, that parties in interest, and especially the incumbent of the office of harbor master, were fairly apprised by the title given to the act that matters of such special character, in no way connected with the former municipality, would be gone into. The title with the clause in it is calculated to avert attention from any proposition to subject the harbormaster of the port of Pensacola to municipal control,, in that it directed attention to the creation of a city, then known as the provisional municipality of Pensacola, which in no way controlled the appointment of the harbor master.

The title to the act involved in the case of Brooks vs. Hydorn, 76 Mich. 273, 42 N. W. Rep. 1122, was “an act to provide for the election of two justices of the peace, and for the appointment of a justice clerk and room for holding justice court, in and for the city of Grand Rapids, and to define their jurisdiction, and to fix their compensation, and to repeal an act entitled, ‘an act to provide for the election of four justices of the peace in and for the city of Grand Rapids, and to-define their jurisdiction, and fix their compensation,’ approved March 11, 1881, and all acts and parts of acts-in anywise contravening the provisions of this act.” At the time the act was passed there were four justices of the peace in office in the city of Grand Rapids* and the act legislated two of them out of of office. The-opinion says: “No one, in reading the title of this act, •while it was a bill before the Legislature, would have-been apprised that the offices of respondent and Justice Hughes were not only to be abolished, but that, they were to be deprived of holding the same after the fourth day of July, 1889. If one can gather from the-clause in the title in relation to the repeal of the act of 1881, w'hich provided for four justices, that the intention and purport of the bill might be to decrease the-number of justices from four to two, yet there is not-the slightest hint therein that any of the justices already in office should be deprived of their terms, or, if so, which one, or two, of them was thus to be legislated out of office. The notice in the title, which the-Constitution imperatively requires, was therefore not given, and the plain purpose of the constitutional mandate evaded and violated.” The title of the act con sidered in the case of State ex rel. vs. Commissioners of Duval County, 23 Fla. 483, 3 South. Rep. 193, was-. “an act to establish the municipality of Jacksonville,, provide for its government and prescribe its jurisdiction and powers,” and in fixing the boundaries, territory occupied by two existing municipalities, and part of that occupied by a third, was included, and the charters of the municipalities whose territory had been, absorbed were repealed. It was held that the repeal of the charters was matter properly connected with the subject expressed in the title. The decision was. correct, but the principle decided by it does not conflict, in our opinion, with the conclusion in the case before us. The title of the act mentioned is ample to authorize the establishment of a municipality with all-usual municipal jurisdiction and powers, and it has no< restrictive or misleading features about it. In this respect it materially differs from the title to the act of 1895 creating the city of Pensacola.

Our judgment is that the demurrer was properly sustained on the ground that the provision in the act in reference to the appointment of harbor master violates section 16, Article III, of the Constitution, and the judgment of the court will, therefore, be affirmed.