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This case is before the Court on a motion for a peremptory writ of mandamus, notwithstanding the answer or return of the respondent to the alternative writ of mandamus. Such a motion involves the determination of whether or not the allegations of the return or answer are sufficient to preclude the issuance of a peremptory writ of mandamus. See State v. Seaboard Air Line R. Co., 89 Fla. 419, 104 So. 602, 39 A.L.R. 1362; State v. Seaboard Air Line R. Co., 92 Fla. 1139, 111 So. 281, 735, 275 U.S. 574,48 Sup. Ct. 17, 72 L. Ed. 434. Where the return or answer to an alternative writ of mandamus is supposed to bar the issuance of a peremptory writ, a motion for a peremptory writ, the return to the contrary notwithstanding, will be denied, and the alternative writ quashed, and the proceedings dismissed. Such a motion is the equivalent of and operates as a demurrer to the return of respondent. See State, ex rel. Gillespie, v. Carlton, 103 Fla. 810, 138 So. 612 Lamb v. Harrison, 91 Fla. 927, 108 So. 671. On a motion to quash the alternative writ heretofore issued, it was held by a previous order that a prima facie case had been made or established and that the motion to quash should be overruled and denied.
The return shows in this case that the Town of Pompano was organized by Chapter 6754, Special Acts of 1913, Laws of Florida, and contained approximately two square miles or about 1530 acres. The Town of Pompano in 1925 attempted to extend its boundaries by Ordinance annexation proceedings under the General Statutes of Florida so as to include approximately 7430 acres. The 1927 Session of
the Legislature, by Chapter 13324, Special Acts of Florida, abolished the Town of Pompano and established the City of Pompano, with an area of approximately 15,650 acres. The boundaries thereof extended approximately four miles north and south and six miles east and west, with an area of approximately twenty-four square miles.
The record shows that the City of Pompano, under Chapter 13324, Special Laws of Florida, Acts of 1927, and Chapter 13323, Laws of Florida, Special Act of 1927, issued certain bonds and coupons hereinafter described which are owned or controlled by the relators, or as trustees therefor, and each of the bonds contained the recital, viz.:
"It is hereby certified and recited that all acts, conditions and things required by the Constitution and Laws of Florida and the charter of said City to happen, exist, and be performed precedent to and in the issuance of this bond, have happened, exist and have been performed in regular and due form and time as so required; that the total indebtedness of said City, including this bond, does not exceed any constitutional or statutory limitation thereon; and that provision has been made for the levy and collection of a direct annual tax upon all taxable property in said City sufficient to meet the payment of the principal and interest of this bond as the same shall fall due."
The bonds and interest coupons held by the relators as trustees are, viz.:
"Bonds Numbered Due Amount
5 46 to 50, inclusive May 1, 1932 $ 5,000.00
5 61 to 65, " May 1, 1933 5,000.00
10 81 to 90, " May 1, 1934 10,000.00
10 101 to 110, " May 1, 1935 10,000.00
9 121 to 129, " May 1, 1936 9,000.00
6 141 to 144, "
149 and 150, " May 1, 1937 6,000.00
6 170 to 175, " May 1, 1938 6,000.00
Coupons
30 9 November 1, 1930 900.00
264 10 May 1, 1931 7,920.00
274 11 November 1, 1931 8,220.00
274 12 May 1, 1932 8,220.00
182 13 November 1, 1932 5,460.00
256 14 May 1, 1933 7,680.00
115 15 November 1, 1933 3,450.00
258 16 May 1, 1934 7,740.00
125 17 November 1, 1934 3,750.00
245 18 May 1, 1935 7,350.00
80 19 November 1, 1935 2,400.00
263 20 May 1, 1936 7,890.00
254 21 November 1, 1936 7,620.00
254 22 May 1, 1937 7,620.00
248 23 November 1, 1937 7,440.00
248 24 May 1, 1938 7,440.00
-----------------
Total — $152,000.00"
During the year 1930 the State of Florida, on Relation of Fred H. Davis, Attorney General, as Relator, and Hillsboro Inlet Corporation, as Co-Relator, instituted a quo warranto proceeding for the purpose of testing the authority of the City of Pompano to exercise jurisdiction over the lands annexed by the Ordinances of 1925 and by Chapter 13324, Special Acts of Florida, Laws of 1927. The suit was instituted in the Circuit Court of Broward County, Florida, being contested by the respective parties, and on the 20th day of June, 1932, a final judgment was rendered and entered in said cause ousting the City of Pompano as to the entire territory included within the City limits of the Town
of Pompano, except that territory which was included in the corporate limits of the Town of Pompano prior to 1925, and forever enjoining and restraining the said city from exercising jurisdiction over the territory from which it had been ousted. On writ of error to the final judgment in quo warranto to this Court the judgment as entered by the Circuit Court of Broward County, Florida, was reversed. See State,
ex rel. Davis, Attorney General, v. City of Pompano,
113 Fla. 246,
151 So. 485. This Court, in reversing the judgment, in part, said:
"It is needless for us to discuss the principles of law involved in this case because, as it appears to us, they have all been settled adversely to the contentions of the defendant in error in the opinions and judgments in the cases of State, exrel. Davis, v. Town of Lake Placid, opinion filed April 13, 1933, reported in 147 So. 468, and State, ex rel. Davis, City of Largo, opinion filed May 2, 1933, reported in 149 So. 420.
"Especially is the holding of this Court in the latter case applicable here. In that case we said:
"`Undoubtedly, under the provisions of Section 8 of ArticleVIII of the Constitution of Florida, the Legislature has the power to establish municipalities, and to extend boundaries. But in exercising such authority it should at all times be kept in mind that the objects and purposes of such establishment or extension is to provide for an aggregation or community of people, and not simply an indiscriminate location of territory without regard for the requirements of the inhabitants. A sparsely settled area, chiefly used for groves, farms or gardens, or which is wild, unimproved, and vacant land and not needed for habitation or municipal purposes is not ordinarily within the meaning or purpose of the Constitution. A most enlightening and interesting history and analysis of this subject is given in
the opinion of Justice WHITFIELD in the case of State, ex rel.,
v. Avon Park, 149 So. 409, delivered at the present term of this Court.'"
The relators' bonds, supra, are dated May 1, 1926, and the legislative validation thereof was by Chapter 13324, Special Acts of 1927, Laws of Florida, and approved on April 18, 1927. Chapter 13324, Special Acts of 1927, annexing the land in question, became a law May 11, 1927, and the bonds, supra, were made, executed, sold and delivered on June 25, 1927, and the effect of a peremptory writ would be to levy a tax on the annexed lands to raise funds to pay the bonds of the relators, supra,
notwithstanding the judgment in the quo warranto suit affirmed in this Court. See State, ex rel. Davis, Attorney General, v. City of Pompano, supra. The answer or return alleges that the annexed area, under Chapter 13324, Special Acts of 1927, was and is voidab initio because the Legislature of Florida was without power under Section 8 of Article VIII of the Constitution of 1885 to include in a municipality and to tax for municipal purposes relatively large or excessive areas of wild or unimproved or unoccupied lands that have no fair relation to any present or potential need or convenience for reasonable growth of the municipality within a time that would fairly justify such inclusion, when the land so included and taxed can receive no benefit from the municipality. The lands annexed under Chapter 13324, supra, fall within the rule above stated, and in addition thereto it is sparsely settled, wild, unimproved and vacant lands and not needed for habitation or municipal purposes within the meaning of Section 8, Article VIII, supra. The want of power on the part of the Legislature to enact Chapter 13324, supra, was squarely presented in the quo warranto proceeding instituted in the Circuit Court of Broward County and affirmed by the Supreme Court of Florida and
reported in 113 Fla. 246, 151 So. 485. The annexed lands were excluded by a judgment of the Court and the City of Pompano was forever enjoined from exercising jurisdiction over the excluded area, and the relators here, by original proceedings in mandamus in this Court, seek to have this Court, when the affected land owners are not parties or represented by the issuance of a peremptory writ of mandamus, set aside the judgment affirmed in the quo warranto proceedings. See State, ex rel. Davis, Attorney General, v. City of Pompano, supra. If Chapter 13324, Special Acts of 1927, was or is unconstitutional and void for want of power under Section 8 of Article VIII of the Constitution of Florida to annex the land in question, then, under the circumstances, the peremptory writ of mandamus should be issued; otherwise denied. The proper remedy for presenting the question of the right and power of a City to exercise jurisdiction over certain lands is by quo warranto. The proceedings were in the name of State, ex rel. Davis, Attorney General, Relator, and Hillsboro Inlet Corporation, Co-Relator, v. City of Pompano, and it cannot be overlooked that the necessary parties were before the Court when instituted in the Circuit Court of Broward County and on a writ of error to this Court. It appears that the issues were squarely raised, presented and adjudicated and a judgment duly entered by a court of competent jurisdiction.
In the case of City of Winter Haven v. A.M. Klemm Son,132 Fla. 334, 181 So. 153, this Court had before it the question of the power of the Legislature to enact a statute and said:
"Where a statute establishing, or relating to, the jurisdiction and powers of a municipality, or a part of such statute, violates a command or a prohibition of the Constitution which relates, not merely to the form of the exercise
of the legislative power in enacting statutes, as does Section 16, Article III, but which relates to the nature or character of the subject matter of the enactment, as do Section 17, Article XII, Section 30, Article III, and Section 7, Article IX, such statute, or a severable portion thereof so violating the Constitution, may be adjudicated to be invalid and inoperative abinitio, and, as in such cases the invalidity of the act or the portion thereof goes to the power of the Legislature to enact the law, and not merely to the form of the enactment, no rights or correlative obligations may arise under such invalid statute or invalid portion of the statute. Such invalid statute or part of a statute could not be validated by statute or by judicial decree. See Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716; Munroe v. Reeves, 71 Fla. 612, 71 So. 922; Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253; Nuveen Co. v. City of Quincy, 115 Fla. 510, 156 So. 153; 94 A.L.R. 600; State,ex rel. Nuveen, v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298. * * *
"The power to establish a municipality may not lawfully be so exercised as to be an abuse of power or authority to incorporate an area where there is no resident population or where the population is so small and disproportionate to an enormously excessive area included in the boundaries, when the patently and grossly excessive area is not suitable for municipal purposes, and cannot be benefited by the municipality or its public facilities or improvements and cannot be needed for a reasonably expected growth of the municipality or the needs of the municipality. State v. City of Sarasota, 92 Fla. 563,109 So. 473; State v. Stuart, 97 Fla. 69, 120 So. 335, A.L.R. 1307; State v. Avon Park, 108 Fla. 641, 149 So. 409; State v. Town of Lake Placid, 109 Fla. 419, 147 So. 468; State v. Pompano, 113 Fla. 246, 151 So. 485; State v. Fort Lauderdale, 102 Fla. 1019, 136 So. 889; State v. Homestead, 100 Fla. 361, 130 So. 28; State v. Largo, 110 Fla. 21, 149 So. 420; Olds v. State, 101 Fla. 218,133 So. 641. * * *
"In the State v. L'Engle case, 40 Fla. 392, 24 So. 539; the Brown v. City of Lakeland case, 61 Fla. 508, 54 So. 716; the State, ex rel. Nuveen v. Greer case, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; The Weinberger v. Board of Public Instruction case,93 Fla. 470, 112 So. 253, and other like cases, the illegality of the statutes involved appeared by the face of the statutes, and the provision of the Constitution violated by the statutes related to the power of the Legislature as to the subject matter of the statutes, and did not, as here, relate merely to the form
and manner of including the land in the city limits. * * *
"In Ocean Beach Heights v. Brown-Crummer Investment Co., Town of North Miami case, 302 U.S. 614, 58 S. Ct. 385, 82 L. Ed. 478, decided by the United States Supreme Court, January 17, 1938, the municipality was established not by statute, but by inhabitants under the general law, Section 2935 (1825) C.G.L., and there could be no de jure or de facto jurisdiction over noncontiguous lands that the inhabitants had no authority under the general law to incorporate into a de jure municipality. There was no statute establishing the town or defining its boundaries. Bonds were issued by the self-established town after being validated by judicial decree, and the proceeds were used by the town for municipal purposes before the noncontiguous land was adjudged to be not legally within the limits of the town. As the noncontiguous lands, that were claimed by the town and its bondholders to be in the municipal limits by action of the inhabitants of the town and not by statute, were never legally in the town and could not have been legally made a part of the town by action of its inhabitants taken under the general statutes, the noncontiguous land
was never de jure or de facto in the town limits and was never subject to the jurisdiction of the town. The citizens and taxpayers of the noncontiguous land were not parties to the suit validating the bonds because the bond validating statute makes only those within the de jure or de facto municipal limits parties to the bond validating suit; and the residents of the noncontiguous land did not appear in the bond validating suit or actively acquiesce in issuing the bonds, even if that could have made the noncontiguous land or the owners thereof liable to taxation to pay the bonds. If the municipality had been established by statute, it could have acquired de facto
jurisdiction over the noncontiguous land if the statute had attempted to confer such jurisdiction by statute and failed, not because the Legislature had no power to include the territory, but because of a defect in enacting the statute. See Mahood v. State, 101 Fla. 1254, 133 So. 90; Weatherman v. Alta Cliff Co.,114 Fla. 305, 153 So. 845; State v. City of Cedar Keys, 122 Fla. 454, 165 So. 672; Town of Enterprise v. State, 29 Fla. 128,10 So. 740; Duke v. Taylor, 37 Fla. 64, 67, 19 So. 172, 31 L.R.A. 484, 53 Am. St. Rep. 232; McQuillin, Municipal Corporations, 2d 175. * * *
"In the Nuveen case, Munroe v. Reeves, 71 Fla. 612, 71 So. 922, the bond issue was validated by statute, Chapter 6095, Acts of 1909; but as the school bonds included in the issue on their face violated Article XII of the Constitution, the statutory validation was ineffectual. A statute cannot validate and make legal municipal bonds which a statute could not have authorized to be issued, the Constitution, forbidding such issue. Smith Bros. v. Williams, 100 Fla. 642, 126 So. 367; City of Daytona Beach v. King, Fla., 181 So. 1.
"The portion of the statute purporting to authorize the town to issue bonds for public free school purposes had
never been adjudicated to be constitutional; and as the statute and the bonds showed on their face that the bonds were for a purpose impliedly forbidden by Article III of the constitution, as interpreted in State, ex rel., v. L'Engle, 40 Fla. 392,24 So. 539, and Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716, the school bonds issued by the town were invalid and could not be enforced as bonds of the town. See State, ex rel. Nuveen, v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298, Nuveen Co. v. City of Quincy, 115 Fla. 510, 156 So. 153, 94 A.L.R. 600."
The relators allege that authority to issue the bonds involved in this case is under Section 35 and 36 of Chapter 13324, Special Acts of 1927, Laws of Florida, becoming effective May 11, 1927. On June 25, 1927, the bonds were delivered, but were dated May 1, 1926. These Sections provide:
"Sec. 35. General Law. — That nothing in this Act shall be so construed as to alter, abolish, affect or amend any of the laws of this State now in force, or which may hereafter be enacted relative to towns and cities of the State incorporated under the general law, nor any of the ordinances of the former Town of Pompano now in force under the existing Municipal Government of the said Town of Pompano, except such as will conflict with the provisions of this Act; and all such laws and ordinances are hereby declared to be in full force and effect, and all the ordinances of said Town, and all the Acts of said Municipality and officers, employees and agents under said ordinances are hereby declared valid and legal and are ratified, approved and confirmed.
"Sec. 36. Obligations. — The City Council shall provide for the payment of all outstanding indebtedness of the Town of Pompano and all acts and transactions of said Town of Pompano and its officers, not in conflict with the
Constitution and laws of the State of Florida, together with all obligations assumed by said City, or its officers, including all issues of bonds, all assessments for the cost of municipal improvements shall be, and the same are hereby declared to be valid and of full force and effect and binding upon the City of Pompano created by this Act, and all rights of said Town of Pompano heretofore acquired shall pass to and be vested in the City of Pompano created by this Act; and the title to all property, real, personal and mixed, now belonging to the Town of Pompano, all uncollected taxes, dues, claims, judgments, decrees and choses in action shall pass to, and be vested in, the City of Pompano created by this Act."
The respondent, in paragraph 4 of the answer, which facts are admitted to be true for a hearing on a motion for a peremptory writ (See State, ex rel. Davis, v. A.C.L.R. Co., 97 Fla. 816,122 So. 256), says:
"4. (a) Respondent denies that each or any of the alleged bonds was issued under authority of or in full compliance with Chapter 13324, Laws of Florida, Special Acts of 1927, and Chapter 13323, Laws of Florida, Special Acts of 1927, or by virtue of a vote of a majority of the registered voters of the said city, owning real estate herein and having paid their taxes for the year last due thereon and actually voting at an election specially called for that purpose, or by virtue of ordinances duly passed and approved and then in force, or by virtue of any election or ordinance. Respondent admits that each of the alleged bonds contains a recital substantially as alleged in the Writ, but says that said recitals were and are false, and that the truth is that the former Town of Pompano, by its Council, while a municipal corporation existing solely and only by virtue of Chapter 6754, Laws of Florida, Acts of 1913, on February 10, 1926, passed an ordinance for calling and holding a
special election on March 16, 1926, for the purpose of determining whether interest-bearing municipal coupon bonds in the total sum of $750,000.00 should be issued, to be dated May 1, 1926, to bear interest at the rate of 6% per annum, payable semi-annually over a period of not exceeding thirty years, and to provide for levying and collecting an annual tax upon all taxable property then in the said Town of Pompano to pay the interest and to establish a sinking fund for redemption of said bonds at maturity, and providing that only the qualified freeholders then residing within the then existing corporate limits of said Town should be allowed to vote in such election, and that the proceeds of such bonds should be used in the laying of sewers, installing the water system and for the construction of streets and sidewalks within the then existing corporate limits of said Town; that notice of such election was published in the Pompano News on February 19th and 26th, 1926, and on no other dates; that such election was held in the said former Town of Pompano on March 16, 1926, at which election only the qualified electors of said town who were freeholders residing in its corporate limits were permitted to vote, and at which election a majority of ballots were cast for the issuance of such bonds, as canvassed by the Council of said Town of Pompano on March 17, 1926; that the Council of said Town of Pompano on March 18, 1926, adopted a further ordinance for the issuance of such bonds in the total sum of $750,000.00 in denominations of $1000.00 each, to bear date of May 1st, 1926, two hundred and fifty of which bonds should become due twenty years after date, two hundred and fifty should become due twenty-five years after date, and two hundred and fifty should become due thirty years after said date, with interest at the rate of 6% per annum, payable semi-annually on November 1st and May 1st of each year, payable at the Bank
of Pompano, Pompano, Florida; that said ordinance fixed and prescribed the form of said bonds and interest coupons as set forth in and copied from said ordinance, in the form hereto attached, marked `Exhibit A' and `Exhibit A 1,' and made a part of this Return; that on July 6th, 1926, the Council of said former Town adopted another ordinance repealing said ordinance of March 18, 1926, and on July 6th, 1926, adopted another ordinance for the issuance of bonds pursuant to said election, in the total amount of $750,000.00, in denominations of $1000.00 each, to bear interest at 6% per annum, payable semi-annually on May 1st and November 1st of each year, at some bank or trust company in the City of New York, and changing the maturity dates of the proposed bonds, and providing for the levy and collection of an annual tax upon all taxable property within the then existing corporate limits of said Town, to pay such bonds and interest coupons, and providing that all details and characteristics of said bonds, as well as the form thereof and the manner of execution should be thereafter determined by the Town Council of said Town of Pompano. Respondent further shows that none of said bonds or interest coupons to be issued therewith was ever signed, executed, issued, sold or delivered, and that no other election was held or notice given of the issuance of such bonds or any bonds; that by Chapter 13323, Laws of Florida, Special Acts of 1927, it was attempted to authorize the issuance of such bonds in the principal sum of $375,000.00, and to fix the maturity dates and place of payment of such bonds, and to provide for an annual tax to pay the same; that said Act recited the validation of such bonds by a decree of the Circuit Court, but respondent denies that such bonds, or any of them, were in fact or in law so validated, and denies specifically that any of the bonds which attempt was made to authorize by Chapter 13323 was validated, and
denies that any of the alleged bonds described in the Writ in this case was validated in any manner by Court Decree or Act of the Legislature, and respondent shows that said Chapter 13323 became effective April 18th, 1927, in respect only to contemplated bonds of said Town of Pompano, yet, nevertheless, that none of the bonds provided for or attempted to be provided for by said Act was ever signed, executed, issued, sold or delivered, and particularly that no bonds were issued between said April 18, 1927, and May 11, 1927.
"(b) Respondent further shows, as alleged in the Writ herein, that said Town of Pompano was abolished by Chapter 13324, Special Laws of Florida, Acts of 1927, which became effective May 11th, 1927; that by said Act the respondent, City of Pompano, was created and established; that said Act required the City of Pompano to provide for the payment of outstanding indebtedness of the Town of Pompano, and ratified said Town's obligations, including certain other bonds issued prior to May 16th, 1926, and not involved in this case, and vested in respondent title to the property of the Town of Pompano, and provided that nothing therein should be construed to alter or abolish the Ordinances of the Town of Pompano, except such as would conflict with said Act; and respondent shows that when said Chapter 13324 became effective on May 11th, 1927, no bond or writing in the form of a bond, or interest coupon, as provided for and prescribed in the Ordinance of the Town of Pompano, or in Chapter 13323, aforesaid, or in the form described and alleged in the Writ herein as held by the Relators, had ever been signed, executed, sold, issued or delivered, and that no indebtedness or obligation of the Town of Pompano, or of respondent, then and has ever existed in such form or on account thereof.
"(c) Respondent shows further that said Chapter 13324, Laws of Florida, Acts of 1927, which was and is the municipal charter and governing law of respondent, the City of Pompano, permitted said City to issue bonds for specified purposes, but Section 45 of said Act provided that before such bonds should be issued, the issuance thereof should be approved by an affirmative vote of a majority of the electors of said City voting for such purpose at an election to be regulated by ordinance, and after advertisement of such election for not less than thirty days in a newspaper, at which election only qualified electors of said City who should then own real estate therein and who should have paid the taxes thereon last due should be allowed to vote, thus changing the qualifications of electors from the qualifications of electors of the former Town of Pompano; and said Act in Section 48 required such bonds before sale to be advertised for two successive weeks in a newspaper, and respondent shows that said requirements were not followed or complied with, but to the contrary the writings in the form of bonds and interest coupons allegedly held by the relators herein in truth and in fact were signed, executed, sold and delivered on or about June 25th, 1927, as alleged in the Writ herein, and not before, that they were executed by the officers of the respondent, City of Pompano, and were sealed with its corporate seal, the testimonium clause and manner of execution in said bonds being as follows:
"`IN WITNESS WHEREOF said City of Pompano has caused this bond to be signed by the Mayor and countersigned by the President of the Council and attested by the City Clerk, and the official seal of said City to be hereto affixed, and the annexed interest coupons to be executed with the facsimile signature of said City Clerk, all as of the first
day of May, 1926, but actually on a date subsequent to May 11, 1927.
"`JOHN O. COOK, Mayor
"`ATTEST:
"`Countersigned: "`T.E. RAINES W.H. McNAB City Clerk. President of the Council.
"`(SEAL OF THE CITY OF POMPANO)'
"Said bonds not even being executed in the name of the City of Pompano; said bonds being entitled `Municipal Improvement Bonds, City of Pompano,' and were otherwise in different form even from the bonds theretofore authorized or purported authorized to be issued by the Town of Pompano, but not in fact issued, that no election whatever was held in the City of Pompano to approve or disapprove the issuance of said bonds nor any notice published of the proposed issuance thereof, or of the alleged interest coupons, and that the Minutes and Records of respondent City of Pompano did not at the time of the actual execution and delivery of the purported bonds held by relators herein, or ever, contain any record or recital of the holding of any such election or giving of such notice; wherefore, the recitals in the writings described in the Writ herein were and are false, besides being in the form of mere conclusions, and the said writings, although in the form of bonds and interest coupons, were and are null and void and of no effect, and all purchasers thereof including the relators herein, were charged with and had notice thereof."
If, as alleged in the above quoted answer, Chapter 13324,supra, became a law on May 11, 1927, and the bonds now before the Court were dated May 1, 1926, and delivered on June 25, 1927, it would be necessary for the City Council
of Pompano to prepare and adopt an ordinance or resolution calling for an election and to advertise the same for a period of thirty days prior to holding an election thereon in a newspaper published in the City of Pompano, as required by Section 45 of Chapter 13324, supra. When a validation proceeding is desired in conformity with Sections 5106, 5107, and 5108 C.G.L., additional time is required, and Section 48 of Chapter 13324 requires that the offer of sale of bonds be made after the same have been approved or validated. It is difficult to understand how these many legal requirements were complied with by the City of Pompano within the forty-five days from May 11, 1927, to June 25, 1927, the date of the alleged sale of the bonds. Even a bona fide
holder of a municipal bond is bound to show legislative authority in the issuing body to create the bond. Recitals on the face of the bond or acts in pais, operating by way of estoppel, may cure irregularities in the execution of a statutory power, but they can not create it. If the legislative authority is wanting, the bond has no validity. See Hayes v. Holly Springs, 114 U.S. 120,29 L. Ed. 81, 5 Sup. Ct. 785.
Likewise the case of Barnett v. Denison, 145 U.S. 135,12 Sup. Ct. 819, 36 L. Ed. 652, held that a purchaser or holder of a municipal bond is chargeable with notice of the requirements of the law under which they are issued. The exact language is:
"It is the settled doctrine of this court that municipal corporations are merely agents of the state government for local purposes, and possess only such powers as are expressly given, or implied, because essential to carry into effect such as are expressly granted; 1 Dill. Mun. Corp., Section 89; Ottawa v. Carey, 108 U.S. 110; that the bonds of such corporations are void unless there be express or implied authority to issue them; Wells v. Supervisors, 102 U.S. 625; Claiborne County v. Brooks, 111 U.S. 400; Concord v. Robinson, 121 U.S. 165; Kelley v. Milan, 127 U.S. 139; that the provisions of the statute authorizing them must be strictly pursued; and that the purchaser or holder of such bonds is chargeable with notice of the requirements of the law under which they are issued. Ogden v. County of Daviess, 102 U.S. 634; Marsh v. Fulton County, 10 Wall, 676; South Ottaway v. Perkins,94 U.S. 260; Northern Bank v. Porter Township, 110 U.S. 608; Hayes v. Holly Springs, 114 U.S. 120; Merchants' Bank v. Bergen County,115 U.S. 384; Harshman v. Knox County, 122 U.S. 306; Coler v. Cleburne, 131 U.S. 162; Lake County v. Graham, 130 U.S. 674."
In McQuillin on Municipal Corporations (2nd Ed.) Revised Vol. 6, par. 2511, page 293, it is said: "Want of Power to Issue. It is a defense even as against bona fide holders, that the bonds are ultra vires, i.e., that the municipality had no implied or expressed authority to issue bonds for the particular purpose. So a repeal of the enabling statute before the issuance of the bonds is a defense, but a subsequent repeal is no defense. Likewise, it is a defense, even as against bona fide holders, that the statute authorizing the issuance of the bonds is unconstitutional. On the other hand it is no defense that a further sale and delivery of the bond issue had been enjoined."
We are unable to extend the doctrine of de jure and of de facto
municipal jurisdiction and powers to the case at bar because the City of Pompano was without power, as now appears from the record, to issue the bonds here involved. See Brown v. City of Lakeland, 61 Fla. 508, 51 So. 716; Munroe v. Reeves, 71 Fla. 612,71 So. 922; Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253; Nuveen Co. v. City of Quincy, 115 Fla. 510,156 So. 153, 94 A.L.R. 600; State, ex rel. Nuveen, v. Greer,
88 Fla. 249, 102 So. 739; 37 A.L. 1298; State, ex rel. Davis, v. City of Pompano, supra.
The motion on the part of the relators for a peremptory writ, the return to the contrary notwithstanding, is hereby denied.
TERRELL, C.J., and BUFORD, J., concur.
WHITFIELD, J., concurs specially.
BROWN, J., concurs in the conclusion.