State Ex Rel. Swanson v. Strickland

166 So. 313, 122 Fla. 784

• Court: Supreme Court of Florida
• Decided: February 18, 1936
• Status: Published

Opinions

Davis, J.

This quo warranto relates to the Broward County Port District. * The controversy involved concerns the personnel of its officers.

In a proceeding filed at this term of' Court we have held that the Governor had no authority, absent some legislative sanction other than the Act of 1931 (Chapter 15107, Special Acts 1931) to make appointments of members of the Broward County Port District. State, ex rel. Landis, Attorney Gen., v. Baxter, 122 Fla. 312, 165 Sou. 271 (opinion filed January 2, 1936). In an earlier decision we held that the 1931 statute governing the Port District contemplated the election of the members of the Broward County Port Authority at the November election, 1934, and that no such election having been called or held on the date prescribed by law therefor, that a subsequent contested election held on December 11, 1934, was ineffectual. Kuhn v. Swanson, 118 Fla. 335, 159 Sou. Rep. 29.

The inquiry in the present case is whether or not the attempted action of the 1935 Legistlature in passing Chapter 17506 (House Bill No. 1518), Special Acts 1935, Laws of Florida, to supply the omissions and defects pointed out by us as infecting the earlier Acts, was an effectual exercise of legislative power. If it was, then the quo' warranto brought by plaintiffs, as claimants under the Act of 1931. (Chapter 15107, supra,) must fail, and judgment be rendered herein for the respondents.

Chapter 17506, Acts 1935, supra, provides in substance that Chapter 15107, Acts 1931, supra, be repealed; that a new “Broward County Port District” as defined by the 1935 legislation be set up in place of the 1931 district; that the newly created district and its Authority shall succeed to the rights, titles, interests and liabilities of the old district ; that it shall be governed by a new staff of officials to be designated as the “Broward County Port Authority”; that such new staff of officials should consist of three “Port Commissioners” who should be qualified electors and freeholders residing in the district as newly defined; that E. K. DeLoach, H. G. LaBree and B. W. Strickland, who had theretofore been appointed and commissioned by the Governor as members of the Broward County Port Authority, should, by virtue of the statute creating the new Port District, become and succed to the offices of Port Commissioners of the Broward County Port Authority, to have and to hold their offices' as such until the first Tuesday after the first Monday in January, 1937, or until their successors, to be elected or appointed as such pursuant to the new Act, should be duly installed and qualified.

This quo warranto attacks the title to office of respondents DeLoach, LaBree and Strickland as claimed and held by them under the terms of Chapter 17506, the 1935 Act last passed, construed in connection with an earlier 1935 Act (Chapter 17509) which had amended Chapter 15107, Acts 1931, and under which the Governor had appointed DeLoach, LaBree and Strickland to the office as “Members” of the Broward County Port Authority.

The last enacted statute, Chapter 17506, Acts of 1935, supra, not only abolished the old Broward County Port District, and the old Broward County Port Authority, as theretofore set up and existing under Chapter 15107, Acts 1931,. as amended by Chapter 17509, Acts 1935, .but abolished and superseded (with the offices of “Port Commissioners”) the pre-existing officers that had been theretofore designated as “Members” of the Broward County Port Authority under the Act of 1931.

At the outset, we are confronted with objections to the right of relators to maintain this' suit in quo warranto in the State’s name without the joinder or consent of the Attorney General. Since the right of Swanson, Baxter and Ryan, the plaintiffs herein, to hold the offices of “Members” of the Broward County Port Authority under the Act of 1931, until their successors should be duly, selected and qualified has been judicially confirmed by this Court in its recent opinion in State, ex rel. Landis, v. Baxter, supra, filed January 2, 1936, we think that relators, as' claimants to the offices held by respondents, which have no constitutional existence if relators’ contention with regard to the validity of the 1935 Acts of the Legislature are sound, entitle them to maintain this proceeding in quo warranto under authorty of Section 5447 C. G. L., 3582 R. G. S., upon refusal of the Attorney General to institute the proceedings' in the name of the State upon such claimants’ relation. The refusal of the Attorney General to act in this case has been duly alleged in the information and such allegation is not controverted.

It is next to be considered whether or not Chapter 17506, ■Special Acts of 1935, Laws of Florida, is sufficient to confer title upon respondents DeLoach, LaBree and Strickland to the offices' of “Port Commissioners” of Broward County Port District. These offices they claim the right to hold as against relators, on authority of the Governor’s appointments made in accordance with Chapter 17507, Special Acts 1935, Laws of Florida, which appointments by the Governor were in and by the terms of Chapter 17506, sxipra, expressly recognized and continued in force by the new Act, which in effect named and made the Governor’s appointees the temporary officers' of the newly created Broward County Port District until a regular election in the District could be held pursuant to the new law, and the respondents’ successors duly qualified and installed as Port Commissioners pursuant to their election as such.

Relators' Baxter, Swanson and Ryan claim in their quo warranto information that no successors to their offices have been lawfully chosen as required by Chapter 15107, Acts of 1931. This is undoubtedly true, as it was so held in the cases of Kuhn v. Swanson, supra, and State, ex rel. Landis, v. Baxter, supra. They further contend that Chapter 15107, under which their own title to office is asserted in this case, has never been constitutionally amended or repealed and that therefore their several terms of office under Chapter 15107, supra, have not expired or been terminated by operation of law. The latter contention is made notwithstanding the pas'sage and approval of House Bill No. 915 (Chapter 17509) and of House Bill No. 1518 (Chapter 17506) by the 1935 Legislature and the appointment by the Governor of successors to relators as authorized by said House Bill No. 915 (Chapter 17509). The reason for the contention so made is the relators’ assertion that neither of said bills (House Bill No. 915 nor House Bill No. 1518) was constitutionally passed by the Legislature and therefore neither of them ever became a valid law of this State, in view of the requirements of Section 21 of Article III of the State Constitution.

In support of the last stated proposition, the information alleges that the respondents claim title to the offices of members of the Broward County Port Authority by virtue of appointments made by the Governor of the State of Florida pursuant to the provisions of House Bill No. 915, enacted by the Legislature of the State of Florida at its session in the year 1935, but that the said appointments' are null and void for the reason that notice of intention to apply to the Legislature to pass said Bill did not state the locality to be affected, nor the substance of the Bill, as well as other reasons; that the respondents also claim title to the offices of members of the Broward County Port Authority pursuant to the provisions of House Bill No. 1518, passed by the Legislature of the State of Florida at its session in the year 1935, but that the said Bill so passed is null and void for the reason that notice of intention to introduce said Bill was not published at least thirty days prior to its introduction into the Legislature and that the' Act, as introduced and passed, materially varies from the statement of the substance contained in the notice so published, as well as other grounds.

We do not so view the applicable law of this case.

While Section 21 .of Article III of the Constitution is mandatory, it has never been put directly within the province of the courts to so exactly and literally review and revise the determination of the Legislature under it as to matters of mere formulae prescribed by it, as to remove from the province of the legislative branch of the government, all privilege of deciding questions involving the Sufficiency of a particular given notice to comply with the constitutional intendments.

Notwithstanding the fact that under the constitutional section (Section 21 of Article III), as amended in 1928, the courts are now permitted, as well as required, to make judicial inquiry as to compliance with the advertising of special or local laws, a power that was denied to the judiciary under the original section (Stockton v. Powell, 29 Fla. 1, 10 Sou. Rep. 688, 15 L. R. A. 42), yet it is still within the initial province of the Legislature itself, when a. special or local law has been introduced under circumstances purporting to show attempted compliance with the Constitution as to advertising it as local legislation in the affected locality, to thereupon ascertain and decide whether the required notice that has been given is' sufficient for the purpose, and to exercise in that behalf its legislative judgment in determining whether or not such particular notice given, as established in the Legislature by proof of it there, has been so sufficiently and fairly published in the affected locality, as to amount to a substantial compliance with the purpose and intent of the Constitution on that subject, as specified in Section 21 of Article III of the Constitution and statutes passed to carry the same into effect.

. We think that the legislative record shows proof of the publication of a notice of intention to pas's House Bills No. 915 and No. 1518, sufficient to sustain the judgment and determination of the Legislature as it appears on pages 519 and 1401 and 1402 of the Journal of the House of Representatives (1935 Regular Session) to the effect that “evidence that said bills had been published in compliance with Section 21 of Article III of the Constitution has' been established in this Legislature.”

■ Only when a legislative determination of compliance with Section 21 of Article III of the Constitution of Florida, as amended, can be said beyond a reasonable doubt, to be wholly unsupported by the entries that appear on the legislative journals, or by what is disclosed by a reference to the bill its'elf, as introduced, are the courts warranted in striking down as unconstitutionally passed an otherwise duly enacted local law on the ground that amended Section 21 of the State Constitution has not been complied with. Compare: Harrison v. Wilson, 120 Fla. 771, 163 Sou. Rep. 233.

Having found that House Bill No. 915 (Chapter 17509) and House Bill No. 1518 (Chapter 17506) duly passed the Legislature and became valid and controlling laws as to the Broward County Port District, the Broward County Port Authority and the Broward County Port Commissioners, it follows that relators have no title to the offices claimed by them under Chapter 15107, Special Acts of 1931, which has been repealed, therefore the demurrer of respondents to the information in quo warranto must be sustained and judgment entered thereon for respondents. The constitutional writ heretofore issued in this cause is dissolved.

Judgment for respondents on demurrer to information in quo warranto entered and constitutional writ heretofore issued dissolved.

AVhitfield, C. J., and Terrell and Buford, J. J., concur. Ellis, P. J., and Brown, J., dissent.

* Chapter 12562, Special Acts 1927, creating Broward County Port District, defining boundaries, providing for government, powers, etc.; Chapter 13940, Special Acts 1929, amending certain sections of Chapter 12562, and re-enacting certain other sections; Chapter 15107, Special Acts 1931, abolishing and re-establishing Broward County Port District; Chapter 16636, Special Acts of 1933, abolishing Broward County Port District and creating Port Everglades Harbor District (not ratified at referendum election) ; Chapter 17507, Special Acts 1935, amending Chapter 15107, Acts 1931, with reference to Broward County Port District; Chapter 17506, Special Acts 1935, abolishing Broward County Port District under Acts of 1931 and creating new Broward County Port District as successor, with new officers and new powers.