author: PER CURIAM. BARNS, Justice

text:
    Cecil REDDITT, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    June 6, 1956.
    For former opinion, see 84 So.2d 317.
    Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlando, for appellant.
    Richard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Pursuant to rehearing granted by opinion filed December 14, 1955, this cause has been reconsidered by the Court en banc. Upon such reconsideration, the original opinion, filed July 22, 1955, affirming the judgment of conviction is adhered to.

DREW, C. J., and TERRELL, ROBERTS and THORNAL, JJ., concur.

BARNS, J., dissents.

THOMAS and HOBSON, JJ., not participating.

On Rehearing

BARNS, Justice

(dissenting).

An information was filed against the appellant charging him and twenty-three other defendants in six counts with violations of the lottery law. The defendant made a motion to quash the information which motion was denied. After a severance, the case against the appellant went to trial and the jury returned a verdict of giiiltyon the second and’ sixth 'counts. Appellant’s motion for new trial was denied' and he was sentenced to three years’ imprisonment on the second' count, whereupon he appealed. We find harmful error to have occurred and reverse.

Appellant’s brief purports to argue assignment of errors 21, 41, 81 and 98. None of these assignments designate any identified judicial act according to the facts and circumstances as they occurred' nor does the brief attempt to correlate any identified judicial act to any assignment, therefore they fail. See Redditt v. State, Fla., 84 So.2d 317.

Appellant’s first assignment of error' is that the trial judge erred in overruling defendant’s motion to quash the information. A ground of the motion to. quash was that the information did not show any connection between the defendant Redditt and the 23 other co-defendants, i. e., a misjoinder of defendants. In denying the motion the court erred and the harmful consequences are established as hereinafter pointed out.

The first count charged that Redditt and Blackburn, Norma Bridges, Lawrence Wall and' Sing Wall did set up, promote and conduct a lottery partly in the counties of

Osceola, Orange, Hillsborough, DeSoto and Polk; that Frank Duskin committed a like offense partly in the counties of Osceola, Orange, Hillsborough, and Polk; and that Geraldine Berry committed a like offense in the counties of Hillsborough and ' Polk.

The second count. charged that Redditt and -the four others named in the first count did “aid and assist in setting up, promoting and qonducting a lottery” and also were “interested in and connected with” said lottery in the five counties above mentioned; that Frank Duskin did 7a.id and assist in ' setting up, promoting and conducting a lottery” and was “interested in and connect- . ed with” a lottery in the counties of Osceo-. la, Orange, Hillsborough and Polk; that Elouise Broadnax and fifteen other named defendants did aid and assist in “setting up, promoting and conducting a lottery” in Polk County and were “interested in and connected with the said lottery”; that Geraldine Berry and Sam Cagnina did “aid and assist in setting up, promoting and conducting of a lottery” and were “interested' in and connected” with said lottery in the counties of Hillsborough and Polk. This count is set forth in the footnote in full.

That third count charged that Redditt and the four others as named-in the.first count did in Polk County “have in their possession implements and devices for conducting a lottery” and were “interested in the conducting of the aforesaid lottery and possessed said implements and devices for said purposes; that said offense was committed partly in the Counties of Osceola, Orange, Hillsborough, DeSoto and Polk; that Elouise Broadnax and fifteen other named defendants were likewise possessed of implements and devices and likewise interested in conducting said lottery in Polk County; that Frank Duskin did in Polk County have in his possession implements and devices for conducting a lottery and was interested in the conducting of the aforesaid lottery which offenses were committed partly in the Counties of Osceola, Orange, Hillsborough and Polk; that Sam Cagnina did in Polk County have in his possession certain implements and devices for the conducting of said lottery and was interested in the conducting of said lottery and possessed said implements and devices for such purposes and said offenses were committed in the Counties of Hillsborough and Polk.

The fourth count charged that Redditt and the four other named defendants did sell and offer for sale tickets, coupons and shares in a lottery and that said offense was committed partly in the Counties of Osceola, Orange, Hillsborough, DeSoto and Polk; that Geraldine Berry did sell and offer for sale tickets, coupons and shares partly in Counties of Hillsborough and Polk; that Elouise Broadnax and fifteen other named defendants likewise sold and offered for sale like matter in Polk County.

The fifth count charged that Redditt and the four other named defendants did transmit lottery tickets, coupons and shares partly in the Counties of Orange, Hillsbor-ough, DeSoto and Polk; that John Henry Speed did transmit lottery tickets, coupons and shares in Polk County; that Geraldine Berry did transmit lottery tickets, coupons and shares in Polk County; that Frank Duskin did transmit lottery tickets, coupons and shares partly in the Counties of Osceola, Orange, Hillsborough and Polk.

The sixth count charged that Redditt and Blackburn attempted to operate and conduct a lottery in Polk County.

Misjoinder of offenses and offenders does not render an indictment or information incapable of supporting a verdict, Dowling v. U. S., 5 Cir., 49 F.2d 1014, but it is not good practice to join counts charging distinct and unrelated offenses against separate defendants, Todd v. U. S., 5 Cir., 48 F.2d 530; and a count charging two or more offenses against the same offender is duplicitous, Johnson v. State, 51 Fla. 44, 40 So. 678; McGahagin v. State, 17 Fla. 665; Griswold v. State, 77 Fla. 505, 82 So. 44.

Two or more persons may properly be jointly charged when they engage in committing a criminal act making each of them guilty of the crime, or where the same evidence as to the act applies to all of them. On an indictment or information against two or more persons, charging them with a joint offense, either may be found guilty, for the charge, is several, as well'as joint, against all and each of them. Objections for misjoinder of parties or offenses or for duplicity of an indictment’or information, or any of the counts thereof, must be made by demurrer or motion to quash before plea to the merits.

The reason for proscribing duplicitous counts, misjoinder of offenses and mis-joinder of offenders is to avoid embarrassment in preparing and presenting a defense to each charge, to insure a fair trial as to each charge, and to avoid the danger of evidence against one defendant being improperly applied against another defendant.

In support of the denial of Redditt’s motion to quash the appellee relies upon F.S. § 906.25, F.S.A., as follows:

“906.25 Defects and variances. No indictment or information shall be quashed or judgment arrested or new trial be granted on account of any defect in the form of the indictment or information, or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

This statute relates to defects in form and misjoinder of offenses and not to defects in substance or misjoinder of defend-, ants.

In Houchins v. State, 154 Fla. 283, 17 So. 2d 82, 83, the court concerning F.S. § 906.-25, F.S.A., held:

“From our study of our statute cited above, we are convinced that the legislature made no attempt to authorize the inclusion of two or more separate and distinct charges in the same information or indictment where the charges did not arise out of the same incident or transaction. Such legislation, if permissible, would have, been a radical departure from, the established law of the land and should therefore unequivocally express such intention rather than to imply it. See Bishop on Criminal Procedure, 3. Ed., Vol. 1, p. 277; Bishop’s New Criminal Procedure, Vol. 1, p. 277; Wharton’s Criminal Law, 10 Ed., Sec. 414; People v. Aiken, 66 Mich. 460, 33 N.W. 821, 11 Am.St.Rep. 512; Hotter v. People, 150 Ill. 441, 37 N.E. 932.”

In the case.of United States v. McConnell, D.C., 285 F. 164, text 166, the court concerning a federal statute. permitting joinder of offenses, held:

“ * * * While, under section 1024, R.S. (Comp.St. § 1690)., it is. allowable to join in one indictment several charges against any person .for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions^ of the same class' of crimes or offenses which may be properly joined, instead of having several indictments, there is no authority under the law for joining in one indictment, even in' separate counts, such charges against different persons, and, where they are against the same persons, each charge must be set out in a different count.”

The information did not charge a conspiracy but was such as to permit proof against' each defendant of the offenses charged as-were within the scope of section 849.09, F.S. 1951, F.S.A. The charges against Redditt, Blackburn, Bridges, Lawrence Wall and Sing Wall were not less than twelve charges against each, totalling sixty as to these five defendants. The total number of offenses charged against the twenty-four defendants exceed one hundred. Some testimony was introduced over the objection of defendant Redditt incriminating many of the other defendants, who were not on trial, which evidence tended to incriminate the defendants Blackburn, Bridges, Lawrence Wall and Sing Wall, and other defendants, but not Redditt for want of the showing any privity of Redditt with the transactions, or with a lottery to which the transactions related. The foregoing finding is not true as to all transactions established by the evidence but is true as to many.

Under the foregoing circumstances the jury was instructed on the law of criminal conspiracy as set forth in the footnote. To do so was harmful error. The instruction was objected to at the time and the objection was overruled. The admission of evidence relating to the “conspiracy” was objected to and the objection was overruled.

The duplicitous counts of the information against Redditt, together with the mis-joinder of co-defendants tended to confound the accused in his defense and to prejudice him in holding him out to the jury as an habitual criminal and these circumstances were worsened by the irrelevant instruction to the jury on criminal conspiracy. It cannot be said that the defendant has not been embarrassed and prejudiced in his defense or that the jury has not been distracted to his injury. The court erred in denying the appellant’s motion to quash and the subsequent proceedings established that it was not harmless error.

      . Count 2. “Clifton M. Kelly, County Solicitor for the County of Polk, prosecuting for the State of Florida, in the said County,'' under Oath, further charges that Harlan Blackburn alias Thomas Davis, John Cecil Redditt also known' as Cecil Redditt "also 'known as Cecil Reddick, Norma Bridges, Lawrence Wall and Sing Wall on the lst'dáy of April, A.D. 1952, and the 22nd day of September, A.D. 1952, did in Polk County, Florida, unlawfully aid and assist in the setting up and' promoting and conducting of a lottery for money; which said lottery is commonly known as Cuba and bolita, and the said Harlan Blackburn alias Thomas Davis, John Cecil Redditt also known as Cecil Redditt,' Norma Bridges, Lawrence Wall and Sing Wall were interested in and connected with the said lottery, which said lottery is commonly known as bolita and Cuba;' that said offense was committed at said time by Harlan Blackburn alias Thomas Davis, John Cecil Redditt also known as Cecil Redditt also known as Cecil Reddick, Norma Bridges, Lawrence Wall and Sing Wall were interested in and connected with the said lottery, which said lottery is commonly' known as bolita and cuba; 'that said offense was committed at said time by Harlan Blackburn alias Thomas Davis, John Cecil Redditt also known as Cecil Redditt also known as Cecil Reddick, Norma Bridges, Lawrence Wall and Sing Wall partly in Osceola County, Florida, Orange County, Florida, Hillsborough County, Florida and DeSoto County, Florida, as well ’as in said Polk County, Florida, contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State of Florida; and that Frank Dus-kin on the 1st day of April A.D. 1952, and at divers- other times between the-1st day of April A.D. 1952, and the 22nd day of September, A.D. 1952, did, in Polk County, Florida, unlawfully aid and assist in the setting up and promoting and conducting of a lottery for money, which said lottery is commonly known as Cuba and bolita, and the said Frank Duskin was interested in and connected with the said lottery, which said lottery is commonly known as bolita and Cuba; that said offense was committed at said time by Frank Duskin partly in Osceola County, Florida, Hillsborough County, Florida, and Orange County, Florida, as well as in said Polk County, Florida, contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State of Florida; apd that Elouise Broadnax, Hattie Eads, Laura Merritt, Elizabeth Roberts, May-zene Brown, Agnes Hester Brundridge, Elouise Miller, Ira Miller also known .as Era Miller also known as Ivery Miller, Arthur AVilliams, Jessie Mae Goldwire, Annie Mae Robinson, Douglas Troutman, Wallace Wilspjj, M, D. Lee, John Henry Speed and Philip Lina on the 1st <Jay of April, A.D, 1952, and at divers other times .between the 1st day of April, A-D. 1952, and, the ¡¡¡2nd day of September, AjD, 1952, did,, in Polk County, Flo rid,a, unlawfully aid and assist in the setting up. .and promoting and conducting of a lottery for money, which said lottery is, commonly kpown as Cuba and bolita, and the said Elouise Broadnax, Hattie Eads, Laura Merritt, Elizabeth Roberts, Mayzene Brown, Agnes Hester Brun-dridge, Elouise Miller, Ira Miller also known as Era Miller also known as Ivery Miller, Arthur Williams, Jessie Mae Gold-wire, Annie Mae Robinson, Douglas Troutman, Wallace Wilson, M. D. Lee, John Henry Speed and Philip Line were interested in and connected with the said lottery which said lottery is commonly known as bolita and Cuba, contrary to the form of the statute in such case made and provided and against the peace .and dignity of the State of Florida; and that Geraldine Berry and Sam Cagnina on the 1st day of April, A.D. 1952, and at divers other times between the 1st day of April, A.D. 1952, and the 22nd day of September, A.D. 1952, did, in Polk County, Florida,, unlawfuly aid and assist in the setting up and promoting and conducting of a lottery for money, which said lottery is commonly. known as Cuba and bolita, and the said. Geraldine Berry and Sam Cagnina were interested in and connected with the said lottery, which said lottery is commonly known as bolita and Cuba; that said offense was committed at the said Hills-borough County, Florida, as well as in said Polk County, Florida, contrary to the form of the statute in such ease made and provided and against the peace and dignity of the State of Florida.”

      . “There has been submitted before you in this case testimony of what is known as conspiracy, that is, an unlawful agreement between certain parties to violate the law. Now, the testimony, while this defendant is not charged with a conspiracy, nevertheless, the fact that he may have agreed with others to violate this law, if you believe that he did, may be considered by you in your determination of whether or not there was an actual violation of the law.
      “That is, if you believe that he agreed with some one or more persons to violate this law, then you may consider that as a circumstance in determining whether or not the law was actually violated, the fact that he agreed to violate it, although he is not charged with that.
      “A conspiracy is, of course, one or more persons entering into an agreement for an unlawful purpose.
      “A co-conspirator, or an accomplice. As to co-conspirators or accomplices, the general rule is well settled and if two or more persons enter into a combination or confederation to accomplish an unlawful act, then any act done by any of the participants in pursuance of the original plan in reference to the common object is in contemplation of law, the act of all. Each conspirator is responsible for everything done by the confederates, which follows incidentally as one of the natural and probable consequences in the execution of the common design, even though such a consequence was not intended as a part of the original design or common plan.
      “Where two or more persons, whether by prearrangement or upon an emergency enter into a common purpose which contemplates the commission of a criminal offense, each is a co-conspirator and each is a conspirator, and each conspirator is answerable for the acts of his co-conspirators, if the acts be in furtherance of the conspiracy, or the matter of a direct and proximate result of such conspiracy. A conspirator is not criminally liable for every incidental result arising from the acts of his co-conspirators, but only for such as could be reasonably foreseen.
      “That is the reason there was allowed to go before you testimony that would not otherwise be admissible, that is, testimony that was of things that happened out of the presence of this defendant. If they related to an agreement in which he was involved to violate .the law, then they are admissible as the statements of co-conspirators.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida. En Banc.
    June 7, 1956.
   PER CURIAM.

Supreme Court of Florida Tallahassee

June 7, 1956

Honorable LeRoy Collins

Governor of Florida

Tallahassee, Florida

Dear Governor:

We have for consideration your communication of June 6, 1956, requesting our advice regarding your executive powers and duties pursuant to Section 13 of Article IV of the Florida Constitution, F.S.A. You propound three questions for our reply. Your questions are numbered and quoted, together with our answer following each, to wit:

“(1) Should an extraordinary occasion arise, has the Governor the power and authority to convene the legislature in special session, pursuant to Section 8, Article IV, of the State Constitution, during a recess of a special session previously called by him pursuant to Section 3, Article VII, of the State Constitution ?

In reply to this question, we understand the factual situation to be that the Legislature is presently in session pursuant to Executive Call issued under Section 3, Article VII, of the Constitution of Florida. In anticipation of a possibility that the Legislature might recess its current session, you contemplate that an extraordinary occasion might arise that would justify calling the Legislature into session under Section 8, Article IV, of the Constitution of Florida, during such recess. Your question suggests by implication a necessity for immediate advice as to your executive power during such a legislative recess in order that you might presently make a prompt decision on a problem of vital public concern. As so interpreted by us, the answer to your first question is yes. Section 8, Article IV, of the Constitution, was designed to enable the Governor to invite and request needed legislative action to meet public emergencies during-periods when the Legislature is not in regular session under Section 2, Article III, of the Constitution. If a recess of an extraordinary session called under Section 3, Article VII, of the Constitution, could preclude a call for a special session under Section 8, Article IV, it is obvious that both the Governor and the Legislature would thereby be incapacitated to deal with a public emergency requiring legislative action, should one arise during such recess. Obviously such a -result was not intended by the framers of the Constitution and the people who approved it.

“(2) Should the legislature already be in special session and engaged in the work thereof pursuant to the call of the Governor under Section 3, Article VII, of the State Constitution, and should an extraordinary occasion arise, does the Governor have the power and authority to convene the legislature in special session by virtue of Section 8, Article IV, of the State Constitution?

The Legislature is presently in extraordinary session pursuant to your call issued under Section 3, Article VII, of the Constitution. If an extraordinary occasion requiring legislative action should arise during such session, you would have the power to call the Legislature into special session under Section 8, Article IV, to consider matters permitted under that section. Your call would, of course, indicate the purpose for which the Legislature is to be convened under said section and the date of the convening which could be at a date subsequent to the recess or adjournment of the pending session convened under Section 3, Article VII, though not necessarily so.

Our answer to the second question is therefore yes. The reasons assigned for our reply to your first question are in substantial measure equally applicable to our answer to your second question.

“(3) Should the legislature, while in special session under Section 3, Article VII, of the State Constitution, extend its recess to a time following closely after the next general election, may I consider such date of reconvening binding upon the members of the legislature without an additional executive call?”

We understand from this inquiry that you face an immediate decision involving your executive powers and duties on a .mater of vital public concern and that your decision will be influenced by the extent of your power to call a special session of the Legislature after the next general election which is November 6, 1956, in the event that the current extraordinary session matter of vital public concern and that your State Constitution, should undertake to recess until á time after the next general election. You are advised that in the event the current session of the Legislature functioning pursuant to a call under Section 3, Ar-tide VII, of the Constitution, should undertake to recess to a time following the next general election, then in order to reconvene the Legislature after November 6, 1956, it would be necessary for you to issue an additional executive call under the authority granted to you by Section 8, Article IV, of the Constitution. This is so for the reason that the terms of the Senators elected at the general election in 1952 and the present members of the House of Representatives expire when the polls are officially closed on November 6, 1956. See In re Advisory Opinion to the Governor, 76 Fla. 417, 79 So. 874; Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41; and Section 3, Article III, and Sections 1 and 2, Article VII, of the Florida Constitution. The power of the Senators and members of the House of Representatives described above to act as a part of the legislative branch of the government expires when the polls are officially closed on November 6, 1956. After that time, members of the Legislature are those elected to the Senate and to the House of Representatives at the general election of November 6, 1956, and those Senators whose terms began with the general election of 1954. The specific answer to your inquiry is that inasmuch as the current members of the Legislature cannot bind members of the Legislature elected on November 6, 1956, by a recess resolution extending past the next general election, it would be necessary for you to issue an executive call under Section 8, Article IV, of the State Constitution, to those members of the Legislature elected at the general election of 1956, and those Senators. whose terms began at the general election of 1954 in order to reconvene the Legislature in special session.

Respectfully yours,

E. HARRIS DREW

Chief Justice

GLENN TERRELL

ELWYN THOMAS

T. FRANK HOBSON

B. K. ROBERTS

CAMPBELL THORNAL

STEPHEN C. O’CONNELL

Justices


author: ROBERTS, Justice.

text:
    Howard H. WATSON, Appellant, v. Lucille WATSON, Appellee.
    Supreme Court of Florida. Division B.
    June 6, 1956.

      E. M. Knight, Lakeland, for appellant.
    H. E. Oxford, Lakeland, for appellee.
   ROBERTS, Justice.

The principal point for determination here is whether, in .the circumstances shown by this record, the lower court had jurisdiction to modify the provision of a divorce decree which required the father to pay to the mother support money for the minor children of the parties “until the further order of this Court to the contrary, or until said children reach their majority.” Both parties resided in Florida and were personally before the court at the time the original divorce decree was entered in 1947, but the father thereafter became a resident of another state. A copy of the petition for modification, which sought an increase in the support money for the children, was mailed to the father and was received by him. He employed a local attorney to represent him in the matter, and this attorney attempted to negotiate a settlement agreement with the mother’s attorney and obtained a continuance of the hearing on the mother’s petition. The parties were unable to agree on the amount to be paid, and the father’s attorney then filed a special appearance in the cause and moved to quash the petition on the ground of lack of jurisdiction over the person of the father. The Chancellor denied the motion to quash, heard the evidence adduced by the mother in' support'of her petition, and entered an order modifying the 1947 decree as to support money for the children; The father has appealed.

We find no error here. The petition for modification in this case.was not a new action; it was merely a continuation of the original proceeding. No new service of process was necessary to be made on the father. All that is required in a case like this is that the adverse party be given “adequate notice and opportunity to be heard before such decree may be altered in a manner that will directly affect his person, status or property.” Moore v. Lee, Fla. 1954, 72 So.2d 280, 282, 42 A.L.R.2d 1112. The facts of this case, recounted above, are abundantly sufficient to bring it within this rule.

The father also contends here that the order of modification was entered “prematurely,” in that the Chancellor denied the motion to quash and proceeded immediately to hear the mother’s evidence in support of her petition without affording the father an opportunity to file a responsive pleading. He relies on Rule 1.11 of the Florida Rules of Civil Procedure, 30 F.S.A., as authority for this contention.

We do not decide whether the rule applies in this situation since the question was not raised in the lower court. As shown by the Chancellor’s order denying the motion to quash, when the ruling was announced the attorney for the father “announced that the defendant [father] would appeal from this decision and that he would not take any part in the hearing on plaintiff’s petition to modify said Final Decree as aforesaid and he withdrew from such hearing and did not take any part therein.” In these circumstances, we cannot hold the Chancellor in error for proceeding as he did.

No error having been made to appear, the order appealed from should be and it is hereby

Affirmed.

DREW, C. J., and THOMAS and O’CONNELL, JJ., concur. '


author: THORNAL, Justice. THORNAL, Justice.

text:
    STATE of Florida, and the Taxpayers, Property Owners and Citizens of the City of Fort Pierce, including Non-Residents owning property or subject to taxation thereon, Appellants, v. CITY OF FORT PIERCE, a Municipality in the County of St. Lucie, State of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    March 14, 1956.
    Rehearing Denied June 6, 1956.
    Murray W. Overstreet, Kissimmee, for appellants.
    Willes & Bittan, Fort Pierce, and Patterson, Freeman, Richardson & Watson, Jacksonville, for appellee.
   THORNAL, Justice.

The State, acting through the State Attorney, seeks reversal of a decree validating an issue of revenue bonds.

By an ordinance enacted July 11, 1955, the City authorized the issuance of $2,180,-000 Utility Sewer Revenue Bonds, the proceeds of the sale of which are to be used to refund $207,000 of outstanding Utilities Service Tax Certificates, and to finance the cost of acquisition and construction of improvements to a municipal sanitary sewer system. It is proposed that the bonds shall be paid out of the net revenues to be derived from the operation of the sewer system in the form of sewer service charges and from the proceeds of Utilities Service Taxes levied and collected pursuant to Chapter 22829, Laws of Florida 1945, as amended F.S.A. § 167.431. The ordinance provides that the bonds 'are to be issued in accordance with the provisions of Chapter 184, Florida Statutes, F.S.A.

We have considered the several points made for reversal but the only one that causes us any concern is the effect of Section 6, Chapter 24528, Laws of Florida, Special Acts of 1947, as amended, which places a specific restriction on the use of the proceeds of Utilities Service Taxes levied by the City of Fort Pierce. Section 6, Chapter 24528, Laws of Florida, Special Acts of 1947, as amended, reads in part as follows:

“The City Commission of the City of Fort Pierce, within the limitations of this Act, shall have the power by ordinance in its discretion to levy an excise tax upon the gross sale, or purchases or consumption with the City, of electric lights, electric power, water, telephone service or any services rendered by any person, firm or corporation operating public- utilities, including the City of Fort Pierce, to fix the rate of taxation on 'the sales or purchases or consumption of said commodities .-or said services within the power of selection of the sales or purchases or consumption of said commodities or services to be so taxed, and with the power to fix the rate of tax to be paid upon the sales or purchases or consumption' of the said commodities or services so taxed; provided that the said excise tax shall be paid only'for the purpose of paying the necessary operating expense of the City and none of the funds raised by said tax shall be used for the payment of debts of the City..’ (Emphasis ours.)

To support the decree of validation the appellee contends that Chapter 22829, Laws of Florida 1945, which is the general law authorizing cities to collect utilities service taxes and the quoted provision of the city charter actually authorize two separate and distinct taxes and that the tax pledged to the bonds was levied under the general act which places no restriction on the use of the proceeds of the tax levied under that act. While the argument is ingenious, a careful examination of the briefs fails to reveal any citation of authorities that support the position of the appellee. Reluctant as we are to disturb a plan of financing which municipal authorities have, in their wisdom, declared to be for the benefit of the municipality, we cannot escape the' clear and specific language of the city charter.

It should be observed that the special charter act was enacted subsequent to the general Utilities Service Taxes Act. Instead of the case being one in which two separate taxes are authorized, it is obviously a situation in which the general law and the subsequent special law authorize the same tax and insofar as the two laws are inconsistent, the subsequently enacted special law would prevail. See Sanders v. City of Coleman, 143 Fla. 455, 196 So. 822.

We have traced the legislative history of the above quoted provision of Section 6, Chapter 24528, Laws of Florida, Special Acts of 1947, as amended. We find that this provision in substantially its present form first appeared in the Charter of the City of Fort Pierce in 1933. See Chapter 16428, Laws of Florida, Special Acts of 1933. It appears to have been omitted in a charter amendment in 1939. See Chapters 19835 and 19836, Laws of Florida, Special Acts of 1939. Certainly it was clearly restored to the charter-in 1941 and specifically preserved in an amendment of 1943. See Chapter 21239, Laws of Florida, Special Acts of 1941, and Chapter 22296, Laws of Florida, Special Acts of 1943. Then came Chapter 22829, Laws of Florida 1945, which is the general law on Utilities Service Taxes. If the matter had rested there, the provisions of Section 2 of Chapter 22829, of the 1945 general act, probably would have superseded the restrictions in the local laws theretofore existing by virtue of the expressed intent of the Legislature that such restrictions be superseded. Unfortunately, for the appellee, however, its charter was thereafter specifically amended by Chapter 24528, the local act of 1947, applicable only to the City of Fort Pierce. By this act the Legislature again placed this restrictive provision in the city charter, subsequent to the enactment of the general law, thereby limiting the use of the proceeds of the Utilities Taxes to operating expenses of the City. We are, therefore, forced to the inescapable conclusion that the charter of the City of Fort Pierce in its present form requires that the proceeds of a tax of this nature be used for operating expenses and not for debt service requirements.

When the City of Fort Pierce had its municipal charter re-written by the act of 1947, certainly the Legislature must have been aware of the authority .granted to municipalities to collect utility service taxes in accordance with the general act of 1945. It is likewise equally clear that those who passed the charter act undoubtedly intended that the proceeds of the utilities tax so far as Fort Pierce is concerned could be used only to pay necessary operating expenses of the City and could not be used as a pledge to liquidate the bonded debts of the City. In so doing they exercised a legislative power vouchsafed by the Constitution.

It is not the province of this Court to rewrite the acts of the Legislature. Relief against the restrictive provisions must necessarily come from the legislative rather than from the judicial branch of the government. Four sessions of the Legislature have been held since the local act of 1947 was enacted. The charter has been amended in four particulars but the provision above quoted has never been changed. This is some evidence that it evidently meets a local need.

Because of the specific charter restriction above quoted, we hold that the City of Fort Pierce has no authority to pledge the proceeds of Utilities Service Taxes to support an issue of bonds to raise funds for the construction of sanitary sewers.

Holding as we do, the decree appealed from must necessarily be reversed. '

DREW, C. J., HOBSON, J., and PATTERSON, Associate Justice, concur.

On Petition for Rehearing

THORNAL, Justice.

By petition for rehearing the appellee, City of Fort Pierce, suggests that.certain points raised were overlooked, in our original opinion and in other respects clarification of the original, opinion Would be'helpful. . ' . . ' ^

The matters mentioned in the petition were not overlooked. The Court was mere-' ly of the view that our decision in State v. City of North Miami, Fla.1954,- 73 So.2d 899, did not control the principal, question raised by the appeal. In the, case cited it was held that in the issuance of Sevver Revenue Bonds a municipality cpuld- proceed under the provisions of Chapter 184, Florida Statutes, F.S.A., (the 1951 General Sewer Financing Act) rather than under particular provisions of its own charter. We held that , the 1951 General Act was cumulative to the provisions of the municipal charter and could* be followed' as an alternative to the charter provisions. We do not have such alternatives available to the City of Fort Pierce in the matter before us.

In our original opinion we held in substance that because of the specific provisions found in Section 6, Chapter 24528, Laws of Florida, Special Acts of 1947 (the Fort Pierce Charter), the proceeds of a Utilities Service Tax could not be pledged “to support an issue of bonds to raise funds for the construction of sanitary sewers.” The appellee requests clarification of this holding so as to determine whether that portion of the bond resolution obligating the Utilities Service Tax income to paying the expense of “operating and maim taming” the sanitary sewer system once constructed is likewise prohibited by the language of the City charter.

In referring to the Utilities Service Tax the Charter provision applicable reads:

" * * * provided that the said excise tax shall be paid only for the purpose of paying the necessary operating expense of the City and none of the funds raised by said tax shall be used for the payment of the debts of the City”.

It is noted from the bond resolution that the estimated cost of “maintaining, repairing and operating” the sewer system is a maximum of $35,000 per year. The estimated net proceeds of the Utilities Service Tax is a minimum of $11,648 per year. “Operating Expenses” as used in the bond resolution is defined in Section 1.03(H) thereof as follows:

“(H) ‘Operating Expenses’ shall mean the current expenses, paid or accrued of operation, maintenance, and repair of the Sewer System and its facilities and shall include, without limitation, the generality of the foregoing administrative expenses relating solely to said Sewer System, insurance premiums and charges for the accumulation of appropriate reserves not annually recurrent but which are such as may reasonably be .expected to be incurred in accordance with sound' accounting practice. ‘Operating Expenses’ shall not include any allowance for depreciation, except to the extent expressly herein provided.”

This Court recognizes that a prime function of - municipal government is to provide facilities for the safety, health and welfare of the inhabitants of the incorporated community. It can safely be observed that no service is more essential to the protection of the public health and the prevention of disease than adequate and effective disposal of' sewage. Unfortunately per-, haps for Fort Pierce the Legislature placed, a restriction on the pledging of Utilities Service Taxes to support the liquidation of bonds but in so doing it directed that the proceeds of such a- tax be used “only for the purpose of paying the necessary operating expense of the City”.

Our original opinion did not hold that the proceeds of the Fort Pierce Utilities Service Tax could not be pledged to the extent necessary to carry the annual cost of “operating, repairing and maintaining” the Sanitary Sewer System. Under the bond resolution considered, the Utilities Tax was pledged, along with proposed “sewer service charges” not only to “operating expenses” as defined by the resolution but also to the annual amortization requirements for liquidating the revenue bond debt, and setting up replacement and renewal reserves. We held that this could not be done under the Fort Pierce charter. We had to consider the resolution in its entirety because the proposed bond issue was grounded on it. The annual operating expenses of the sanitary sewer system as defined by Section 1.03(H) of the bond resolution are just as much an “operating expense” within the provisions of Section 6, Chapter 24528, Laws of Florida, 1947, as would be the payment of salaries of police officers or the maintenance of equipment and the payment of salaries for garbage collection. There is no prohibition in the City Charter against pledging the Utilities Service Taxes of Fort Pierce to the extent necessary to “operate and maintain” the sanitary sewer system as the same is defined in the bond resolution. “To the extent necessary” is emphasized for the reason that the entire annual income from the tax cannot be obligated for the life of the bonds to the complete exclusion of other municipal operating expenses. Once the Utilities Tax income to the extent necessary is obligated and credited to the requirements for the operation and maintenance of the sanitary sewer system as defined by the ordinance, it is the obvious intent of the city charter that the balance collected annually, if any, be devoted to other current operating expenses of the municipality, apparently in an effort to avoid the necessity of levying some other tax that would produce an equal amount of operating revenue. While the charter requires the city officials to devote the proceeds of this tax to “operating expenses”, there is no prohibition against the designation of certain specified “operating expenses” as the preferred recipient of the particular tax to the extent necessary to meet the specific expense so long as it is an “operating expense”.

It is noted that the exercise of the ad valorem taxing power for purposes of this bond issue is specifically prohibited.

Because of the obvious importance of the problem to the people of the municipality involved we have felt justified in clarifying our original opinion on rehearing. Having done so, the petition for rehearing is denied.

DREW, C. J., HOBSON, J., and PATTERSON, Associate Justice, concur.


text:
    S. J. HODKIN, Appellant, v. H. D. PERRY et al., Appellees.
    Supreme Court of Florida. Special Division B.
    June 6, 1956.
    L. J. Cushman, Miami, and Fred Hod-kin, Hollywood, for appellant.
    Samuels & Thomas, Hollywood, for ap-pellees.
   ROBERTS, Justice.

The point for determination here is whether plaintiff-appellant, a practicing physician and surgeon of Broward County, is estopped to question the validity of a bylaw adopted by the defendants-appellees, as members of the Board of Commissioners of the South Broward Hospital District, at their organizational meeting, prescribing the qualifications of members of the medical staff of the Broward County Memorial Hospital.

The question was raised in a suit filed by plaintiff to mandatorily enjoin the defendants to reinstate him as a .member of the hospital staff after defendants had refused .to reappoint him to,the staff because he had become disqualified under the bylaw in question. The plaintiff alleged, as a basis for his suit, that the by-law- was unreasonable, arbitrary and void, but the Chancellor did not ■ pass on this question. He sustained the defendants’ plea that plaintiff was estopped to question the valid-ity of the by-law and -entered summary' judgment in their favor. Plaintiff has appealed.

We find no error here. As shown by the affidavits filed in support of the motion for summary judgment, the plaintiff actively supported and voted for thé adoption of the by-law in question, as did all the other physicians present at the meeting at which it was adopted by the defendants. The plaintiff’s counter affidavit stated that the by-law was unanimously approved by the physicians because of “the assertion repeatedly made by the defendants, individually and collectively, that any medical doctor then practicing and living in the South Broward Hospital District would automatically be a member of the hospital staff and have full privileges of the hospital.” The clear import of plaintiff’s affidavit is that he had no objection to the bj-law so long as it was to be used only against other doctors coming into the area to practice, and it was not until it was enforced against him that it became illegal. But we have the view that the plaintiff cannot now be heard to say that the by-law is invalid, merely because the “shoe is on the other foot,” since his present position is so inconsistent with that previously assumed by him as to work a quasi-estoppel against him under the rule of Campbell v. Kauffman Milling Co., 1900, 42 'Fla. 328, 29 So. 43S, that a party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions. Accord: Capital City Bank v. Hilson, 1912, 64 Fla. -206, 60 So. 189; Lyle v. Hunter, 1931, 102 Fla. 972, 136 So. 633.

The Chancellor’s decision in this respect can also be sustained under the general principles' of equitable ‘estoppel, discussed at length in Trustees of Internal Improvement Fund v. Claughton, Fla.1956, 86 So.2d 775, 791, since the circumstances here were siich that it would be contrary to equity and good conscience to allow him to attack the by-law.

. The plaintiff presented a lengthy and forceful argument in support of his contention. that the by-law, which prescribed membership in a medical society ,as a. prerequisite for practice in a public hospital, is invalid. But we cannot pass on the merits of his contention since the question is not properly before us, and a decision of this question must be deferred until such time as it is presented in a proper case.

For the reasons stated, the decree appealed from should be and it is hereby

Affirmed.

DREW, C. J., and THOMAS and THORNAL, JJ., concur.


text:
    Harold VAN KLEECK, Petitioner, v. Frank D. LAPP, and General Accident Fire & Life Assurance Corporation, Limited, and The Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Division A.
    June 6, 1956.
    Faunce & .Fink, Miami, for petitioner.
    Dixon, Dejarnette, Bradford & Williams, Miami, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   PER CURIAM.

Certiorari is denied on authority of the rule announced in U. S. Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741.

DREW, C. J., HOBSON and THOR-NAL, JJ., and PRUNTY, Associate Justice, concur.


author: DREW, Chief Justice. ROBERTS, Justice

text:
    PARKING FACILITIES, Inc., a Florida corporation, Appellant, v. The CITY OF MIAMI BEACH, a municipal corporation under the laws of the State of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    June 8, 1956.
    Rehearing Denied Sept. 13, 1956.
    Ward & Ward, Miami, for appellant.
    Ben Shepard, Miami, and Joseph A. Wa-niclc, Miami Beach, for appellee.
   DREW, Chief Justice.

Appellant land owner in the City of Miami Beach sought to compel the defendant city to issue a building permit allowing it to construct a multiple level parking garage with stores on the ground floor and facilities within for the sale of gasoline, oil and grease and similar garage service. The building was to be constructed on land located within a district zoned by the defendant city as ‘‘REE multiple-family district.” The lower court directed the issuance of the building permit to construct the parking garage and held that portion of the ordinance, infra, limiting and restricting such building to the parking of automobiles to be unconstitutional and void, holding with respect thereto “there is no reasonable factual basis for the conclusion reached by the City Council that the general welfare of the City of Miami Beach required that ‘multiple level automobile parking garages’ be limited and restricted to the parking of automobiles.” With respect, however, to the provision in the ordinance tinder attack which excluded stores from such building, the court held that such provision was valid and constitutional and “not violative of any right of the plaintiff.” The appellant land owner has appealed from that portion of the decree adverse to it. ■ No cross-assignments of error were taken by the defendant city, hence the sole question before ns is whether the ordinance which allows the construction of a parking garage in a multiple-family district but excludes therefrom' stores is a valid and constitutional exercise of the police powers of the municipality.

The portion of the zoning ordinance under consideration, so far as the questions involved in this appeal are concerned, reads as follows:

"Section Si/2
“Use Regulations
“REE Multiple-family district
“In the .‘REE’. Multiple-family District no building or land shall be used and no building shall be hereafter erected, constructed, reconstructed, or structually altered, which is designed, arranged or intended to be used for any purpose unless otherwise provided for in this ordinance except for one or more of the following uses:
“1. Any use permitted in the ‘RE’ Multiple-family District.
“2. Multiple-level Automobile Parking Garages only upon approval and permit by the City .Council of the City of Miami Beach,'Florida, after a public hearing at which due consideration shall be given to the effect upon traffic of the proposed use and then only if the construction and use of said parking garage shall be subject to the following conditions and restrictions; .
“a. That the building shall be fully enclosed and shall conform in outward appearance to that of other buildings in the area;
“b. That no exterior sign other than an identification sign shall be permitted, the location, design and size of which shall be approved by the City Council;
“c. That the services rendered shall be restricted to the parking of automobiles.” ' ■ "

Appellant relies heavily upon a decree of the same circuit judge of June 1, 1954 relating to the same section of the zoning ordinance as affirmed by this Court without opinion in City of Miami Beach v. Mid-century Corp., Fla.1954, 75 So.2d 606. While the same section of the ordinance was involved in the Midcentury case as in this case, the factual situation was entirely different. In the Midcentury case, the main point at issue was not whether the city may lawfully prohibit stores in such a parking garage but whether the restriction limiting the use of the land involved in that case to parking garages was valid. In the Mid-century case the court upheld the land owner’s contention that the zoning of his property for uses 'other than business was unconstitutional and void. In this case the same judge, in commenting on the Midcen-tury case, said:

“That the decree in the case of Mid-century Corp. v. City of Miami Beach, relied upon by plaintiff’s counsel as being determinative of the issues in this case is readily ; distinguishable on the facts. The Court there found and determined, that the land there involved not only abutted -directly upon business property but that other surrounding environmental facts and circumstances rendered the existing zoning in its application to that 1-and unreasonable, and that any zoning other than business uses deprived the owners of the beneficial use of their property.”

The record in this case shows that plaintiff’s property is located in the heart of a multiple-family district where stores are prohibited. The reasonableness of such classification is not an issue here. There is nothing in the record to indicate that the ordinance under question deprives the plaintiff of the beneficial use of its property. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642. Not only does the record show that the parking of automobiles is one of gravest problems faced by the City of Miami Beach but this Court judicially knows .that, such problem is one of the most pressing and serious confronting governmental bodies. The solution of this problem or anything which tends to solve it necessarily contributes to the general welfare. The construction of a parking garage as required in the ordinance in a multiple-family district is not detrimental to the district or inconsistent with the uses allowed therein but, on the contrary, is essential to the maintenance of the integrity of such district. On the other hand, the use of a portion of the building for stores or other business enterprises would violate the integrity of the district and plant therein a growth which could well spread and destroy the character of the neighborhood. It would constitute spot zoning of the worst order, a practice which we and all other courts have universally condemned. Moreover, these zoning ordinances come to us with the presumption of validity. City of Miami Beach v. Hogan, Fla., 63 So.2d 493, and cases there cited. We are not authorized to substitute our judgment in matters of this kind for that of the constituted authorities of the City of Miami Beach so long as their actions are, as here, within constitutional limitations.

We think the eminent chancellor below correctly determined the issues in this case and that the decree appealed from is without error.

Affirmed.

THOMAS, THORNAL and O’CON-NELL, JJ., and STANLY, Associate Justice, concur.

TERRELL and ROBERTS, JJ., dissent.

ROBERTS, Justice

(dissenting).

We here review a decree of the Circuit Court of Dade County holding valid and constitutional as to plaintiff, appellant here, a provision of the zoning ordinance of the City of Miami Beach.

The ordinance in question, being Ordinance No. 973, was adopted in 1951 as an amendment to the general zoning ordinance (No. 289). It established a new Use District, labelled “REE”, to permit the construction and operation of multiple-level parking' garages in the Districts so designated, in addition to all the uses authorized for “RE” Use Districts. “RE” is the designation for hotel, and apartment-house Use Districts, although such uses as miniature golf courses, public schools, lodge halls, churches and synagogues are permitted therein as well as a few other commercial uses when approved by the city.

As shown by the city’s “Use District Map”, four “REE” Use Districts had been established in the City of Miami Beach as of April 1953. One of these, comprising four blocks, is located on Collins Avenue near its intersection with Lincoln Road, and we have heretofore • considered the validity vel non of Ordinance No. 973 in controversies arising out of the proposed construction of a multiple-level parking garage in the particular “REE” District. In Drexel v. City of Miami Beach, Fla., 64 So.2d 317, 318, we held unconstitutional and void a provision of the ordinance prohibiting the construction of multiple-level parking garages except upon “ ‘approval and permit by the City Council * * * after a public hearing at which due consideration shall be given to the effect upon traffic of the proposed use * * *.’ ” for the reason that such provision vested in the municipal authorities an arbitrary discretion without prescribing definite rules and conditions for the guidance of the authorities in the exercise of their discretionary power.

The property there involved passed into the hands of the Midcentury Corporation; and in a suit filed by that corporation against the City of Miami Beach, Ordinance No. 973 was again attacked — this time on the ground that the provision of the ordinance restricting the use of multiple-level parking garages to the parking and servicing of cars, only, was arbitrary and unreasonable as to the plaintiffs in that case. The lower court held that it 'was and entered a decree finding and de- . crecing that “the challenged ordinance * * * insofar as it prohibits the use by ..the plaintiffs of the real property described in such bill * * * for tlie purpose of constructing thereon a building in which, on the upper floors, there shall be a multiple level garage and, on the ground floor, there shall be stores * * * and for the purpose of operating such garage and stores in such building when it shall have been constructed, is now, and was * * * unreasonable and void. The defendant municipality is therefore enjoined from enforcing the mentioned ordinance for the purpose of preventing or interfering with such use.” This decree was affirmed by this court without opinion. City of Miami Beach v. Midcentury Corp., 75 So.2d 606.

The plaintiff in the instant suit sought the same relief as did the plaintiffs in the Midcentury case, that is, a decree compelling the city to issue it a permit to construct retail stores on the ground floor of a proposed multiple-level parking garage and, in addition, permission to furnish servicing, such as gas, oil, and washing, to the cars utilizing the parking facilities of the garage. (The ordinance had been amended to provide that the parking garage could be used for the parking of cars, only, thus prohibiting the servicing of cars parked therein.) The property upon which plaintiff proposes to construct its parking garage is located between 38th and 39th Streets on Collins Avenue, some twenty blocks distant from the property involved in the Midcentury case. In the instant case, the lower court held that it was unreasonable and arbitrary for the city to withhold from plaintiff the right to furnish services ordinarily connected with a parking garage to the patrons thereof, and the ordinance was held to be invalid in this respect. The city has not cross-appealed from this portion of the decree. However, the decree also found that it was not unreasonable to deny to plaintiff the right to construct retail stores on the ground floor of the garage, and the ordinance was held to be constitutional and valid as to plaintiff in this respect. It is this portion of the decree which we here review, upon plaintiff’s appeal therefrom.

In the final decree here reviewed, the Chancellor found that the Midcentury case was “distinguishable on the facts.” He said: “The Court there found and determined, that the land there involved not only abutted directly upon business property but that other surrounding environmental facts and circumstances rendered the existing zoning in its application to that land unreasonable, and that any zoning other than business uses deprived the owners of the beneficial use of their property.” We will assume (without deciding, since it is unnecessary) that the Midcen-tury case is not decisive here, as found by the same Chancellor who heard and decided the Midcentury case, and will decide the question here presented on the basis of the facts developed in the instant case.

It appears that the ordinance in question was adopted by the city, in the exercise of its zoning powers, to meet the need for parking facilities by hotels and apartments in the areas designated as “RE”. It goes without saying that zoning restrictions must “find their justification only in some aspect of the police power asserted fairly and impartially in the interest of the public welfare, health, safety, and morals.” State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114, 116. That the public welfare required the opening up of certain hotel and apartment zones to the purely commercial venture here involved has not, to our knowledge, been questioned and was apparently with the full approval of the hotel and apartment owners in the surrounding area. So the question here is on the reasonableness, vel non, of the city’s determination that a parking garage without retail stores would serve the public welfare, but that it would be contrary to the public welfare, health, safety or morals to allow such garages to incorporate several attractive retail stores on their ground floors. We confess that we are unable to find any justifiable distinction between the two situations. To paraphrase the language of this court in City of Miami Beach v. 8701 Collins Ave., Fla.1955, 77 So.2d 428, 430 (where the question was whether there was any “justifiable distinction” between retail stores, on the one hand, and other commercial establishments, such as barber shops, drug sundry shops, and the like, on the other): “It is impossible to comprehend how a multiple-level garage with retail stores on its ground floor could be considered more obnoxious or detrimental to the public welfare than a multiple-level parking garage without such stores. If there be no justifiable distinctions, and none are indicated, then certainly the restrictions of the amendment, insofar as. the plaintiff here is concerned, are discriminatory, unconstitutional and void.” The one could not possibly be more offensive than the other to the hotel and apartment owners or guests, insofar as the use and looks of the building are concerned; and the comparatively negligible effect on traffic of the existence of the stores in such a situation- is immediately apparent.

The city defends the provision of the ordinance in question on the ground that to allow the operation of retail stores in the area would “create an island of stores completely surrounded by ‘ocean-front’ and ‘near-the-ocean’ hotels, and result in so-called ‘spot zoning’, which is ‘a practice universally condemned,’ ” citing City of Miami Beach v. Lachman, Fla., 71 So.2d 148,' 154. It also contends that the plaintiff has no standing to attack the zoning “because it can profitably use its land for hotel and apartment purposes, and is not being deprived of the beneficial use of its property.”

As to the latter contention, no.authority need be cited for the proposition that if a zoning ordinance is, in fact, unreasonable, as having no substantial relation to the public health, safety, morals or welfare, any deprivation by it of the free use of the property by the owner is a taking of property without just compensation, and thus unauthorized. As a matter of fact, this same contention was made by the city in the Midcentury case and was, of course, disallowed by the lower court in that case, and affirmed here.

As to the contention that this would amount to “spot zoning,” the city overlooks the fact that the “spot zoning”, if such it was, was initiated by it when it undertook to establish four areas within the city’s apartment and hotel zones where multiple-level parking garages would be allowed. The record shows that, even in those areas, only a few locations remain vacant and therefore available for such construction. The plaintiff is undertaking to construct a facility badly needed in the city to meet traffic and parking problems, but is confronted with the fact that such a project would be of doubtful financial feasibility without the assurance of rentals from retail stores or other business uses. And, in our opinion, it is unreasonable and arbitrary on the part of the city to insist that, if plaintiff undertakes to supply this facility, it must do so at the risk of financial loss on the project, simply because the city does not desire a few retail stores (200 feet) opening on to the street in the area in question, and when, as noted above, the installation of such stores in the multiple-level parking garage could not possibly be any more obnoxious or detrimental to the public safety, health, morals and welfare than the operation and use of such garage without such stores.

Since we can find no basis in the public welfare, health, safety or morals for the distinction sought tó be made by the city, we are driven irresistibly to the conclusion that the basis for the distinction is purely economic, that is, that the plaintiff here is to be denied the use of his property for retail stores in order to protect some other citizen who has made such an investment elsewhere. (It might be noted, parenthetically, that at the oral argument on this appeal it was stated that the City of Miami Beach has now amended its zoning ordinance to- authorize the installation of banking facilities on the ground floor of multiple-level parking garages. The fact was not before the lower court and is not considered in our review of the decree appealed from; it is mentioned only as corroboration of the conclusion which we have reached, solely on the basis of the record here, that by the restriction in question the city could have been activated only by economic reasons, rather than from considerations of the public health, safety, morals or welfare.) It is settled in this jurisdiction that zoning for economic reasons will not be sustained. Lippow v. City of Miami Beach, Fla.1953, 68 So.2d 827; Charnofree Corporation v. City of Miami Beach, Fla.1955, 76 So.2d 665. Under our system of government, we do not permit one citizen to be penalized in the use of his property, merely to protect the investment of another. But to permit the decree of the lower court to stand would lead to this odious result.

For the reasons stated, it is my opinion that, insofar as the ordinance prohibits the installation by plaintiff of retail stores on the ground floor of the multiple-level parking garage proposed to be constructed by it, it is arbitrary, unreasonable, and an abuse of administrative discretion.

Accordingly, that portion of the decree appealed from by plaintiff should be reversed.

TERRELL, J., concurs.


text:
    Carl C. CURTIS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    July 18, 1956.
    Rehearing Denied Sept 13, 1956.
    Charles J. Bodner and Rosenhouse & Rosenhouse, Miami, for appellant.
    Richard W. Ervin, Atty. Gen.; and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause came on to he heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

TERRELL, Acting Chief Justice, and THOMAS, PIOBSON and BUFORD, JJ., concur.


text:
    Charles John LEVENS and Margaret Philips Levens, husband and wife, Appellants, v. Joseph L. HERING and Anna Hering, husband and wife, Appellees.
    Supreme Court of Florida, Special Division A.
    July 18, 1956.
    Rehearing Denied Sept. 13, 1956.
    Angus W. Harriett, Palatka, for appellants.
    Berwick Anderson, Green Cove Springs, for appellees.
   PER CURIAM.

This cause came on to he heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

TERRELL, Acting Chief Justice, and THOMAS, HOBSON and ROBERTS, JJ., concur.


text:
    Laszlo BEKE and Maria Beke, his wife, Appellants, v. The ESTATE of Frank MOLNAR, and John H. Coker, Devisee under the Last Will and Testament of Frank Molnar and Piroska Gedon Molnar, Appellees.
    Supreme Court of Florida, Special Division A.
    July 18, 1956.
    Rehearing Denied Sept. 13, 1956.
    Philip G. Nourse, Fort Pierce, for appellants.
    Willes & Bittan, Fort Pierce, for Estate of Frank Molnar.
    Raymond E. Ford, Fort Pierce, for John H. Coker, Devisee.
    Sumner & Sumner, Fort Pierce, for Pi-roska Gedon Molnar.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

TERRELL, Acting C. J., and THOMAS, HOBSON and ROBERTS, JJ., concur.


text:
    T. L. WILLIAMS, Appellant, v. Felicia Williams TRAXLER et al., Appellees.
    Supreme Court of Florida, Division B.
    July 13, 1956.
    Rehearing Denied Sept. 13, 1956.
    Claude Pepper Law Offices and John M. McCants, Mitchell & Mitchell and Harry H. Mitchell, Tallahassee, for appellant.
    Jenkins & Jenkins and Clara Floyd Ge-han, Gainesville, for appellees.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38, 31 F. S.A., of the rules of this court and it appearing to the court from an examination of the record that said motion is appropriate and'seaso'nably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

. It is accordingly ordered, adjudged and decreed thqt the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

DREW, C. J.,’. and THOMAS, ROBERTS and O’CONNELL, JJ„ concur.


text:
    Isaac TAMPA, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    June 8, 1956.
    Jack E. Dadswell, of Snelling & Dads-well, St. Petersburg, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed on the authority of Longo v. State, 157 Fla. 668, 26 So.2d 818; Rogers v. State, 158 Fla. 582, 30 So.2d 625; and Brown v. State, Fla.1950, 46 So.2d 479.

DREW, C. J., THOMAS and THOR-NAL, JJ., and ANDERSON, Associate Justice, concur.


author: THORNAL, Justice.

text:
    Alice RANEY et al., Appellants, v. CITY OF LAKELAND and Garden Club of Lakeland, Inc., Appellees.
    Supreme Court of Florida. Special Division A.
    June 8, 1956.

      Raymond C. Smith, Lakeland, for appellants. ■ • ; .
    J. C. Rogers, Lakeland, for City of Lake-land.
    Bentley & Shafer, Lakeland, for Garden Club of Lakeland,' Inc.
   THORNAL, Justice.

Appellants Raney et al., who were plaintiffs below, seek reversal of a summary final decree denying an injunction and sustaining the validity of a 99-year lease of publicly-owned land by a municipality to a non-profit corporation, appellee Garden Club of Lakeland, Inc.

The question for determination is the validity of a long term lease of publicly-owned land by a municipal corporation to a non-profit corporation for purposes revealed by the record and subject to the restrictions- hereinafter set forth.

In 1952, at a cost of $12,500 the City of -Lakeland acquired the vacant land in question. The land is located in the vicinity of the Civic Center in downtown Lakeland and the record suggests that it was originally contemplated that the property would be used for off-street parking of motor vehicles, although this was not a restriction in the deed of acquisition. It was never so used to any extent.

On September 28, 1954, the city, as lessor, executed in favor of certain individuals, as trustees of the Garden Clul> of Lakeland, Inc., a 99-year lease covering the land at an annual rental of $1 and other considerations. Among other things the lease provided that the lessee would not permit any use of the land for any purpose “of industry or commerce for private gain but shall use said premises only in furtherance of the general objects of the Garden Club of Lakeland, Inc.”, as provided in the publicly-recorded charter of the non-profit corporation. The lease further provided that the lessee would establish and maintain upon the premises a public library dealing with the growing and propagation of flowers, ornamental shrubbery, plants and lawn grasses and allied subjects, that the lessee would maintain upon the premises a service for dissemination of educational information in the field of horticultural beautification and that such library and service “shall be available to the lessor and to citizens of Lakeland, Florida as a public service”. Lessee agreed to construct a suitable building to house the library and offices, to provide an auditorium, club rooms and exhibition facilities. The building was to be started within two years at the expense of the lessee. There were the usual clauses for protecting the lessor with public liability insurance, covenants against assignment ■ and subletting and cancellation on thirty: days notice upon breach of any covenant. - The improvements revert to the city with the land at the end of the term.

The execution of the lease was objected to by certain groups alleging themselves to be' citizens and taxpayers Of the City of Lakeland as well as others who were members of the Winter Tourist Club and Shuffleboard Club. The complaining groups appeared to be those who customarily used the Winter Tourist Club facilities at the Civic Center for such activities as lawn bowling, shuffleboard playing and other winter visitor entertainments and diversions typical to such groups all over Florida. The complaint is grounded on the alleged lack of authority of a municipal corporation to lease public property “for private purposes” and in addition, the plaintiffs alleged that the land was originally acquired as an off-street motor vehicle parking facility, that Lakeland needs such facilities, especially in the vicinity of the Civic Center, and that the lease to the Garden Club is an illegal diversion of public property to a purpose other than that for which it was allegedly acquired.

Upon the filing of an answer by the city, the parties agreed that the sole question was the validity of the lease, and on motion for summary judgment, the Chancellor, with a very thorough and lucid opinion, decreed that the lease was valid and that the complaint should be dismissed. Reversal of this decree is sought by this appeal.

Appellants contend here, as they did in the trial court, that the execution of this lease is prohibited by Section 10 of Article IX of the Florida Constitution, F.S.A., as well as by the general principle that under the circumstances outlined, public property cannot be diverted to “private purposes”.

Appellees contend that the Garden Club of Lakeland, Inc., is a non-profit quasi public corporation, that the execution of this lease is in fulfillment of a public municipal function of the City of Lakeland, and that the lease does not constitute the employment of public funds or the pledging of public credit for private purposes.

The decree of the Chancellor must be affirmed.

The applicable portion of Section 10, Article IX of the Florida Constitution reads:

“* * * The-Legislature shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association, institution or individual.”

Section 8, Chapter 10754, Special Acts of Florida, 1925, the same being the charter of the City of Lakeland, provides in part:

That it “may hold real estate * * * and dispose of the same for the .benefit of the city * * * and may sell, lease or dispose of said property for the benefit of the'city to the same extent that natural persons might do; * *

The validity of the acts of municipal officials must be tested by applicable constitutional provisions as well as the expressed or necessarily implied authorizations of the city'charter.

The lease involved recited that the city had no.present or anticipated need for the land for governmental purposes and that it was executed to permit the enlargement' of the program and 'facilities of the Garden Club for the furtherance of its work in behalf of the general welfare. Admitting the existence of the power, such decisions of municipal officials will not be disturbed absent a showing of fraud, bad faith or abuse of discretion.. None is shown here. In this connection the Garden Club agreed to construct an appropriate building at its own expense. It agreed to establish and maintain a public library dealing with the growing and propagation of flowers, ornamental shrubbery, plants and allied subjects. It agreed to maintain a service for the' dissemination of educational information in the field of horticultural beautification for the .benefit of the public generally. Construction of the building was required to begin within a reasonable time and the city retained the right to cancel in the event of a breach of any of the covenants.

There can be nó doubt that the beautification of a modern city by extensive and well-conceived planting of trees, flowers and shrubs is a proper function of municipal government. This observation is particularly appropriate to Florida, a state which by its very name preserves for history the natural beauty of the Easter Sunday (Pascua Florida) in 1513 when Ponce de Leon came upon our shores in quest of the fabulous Fountain of Youth. There is hardly a city of any size in Florida that does not maintain a well-staffed park department as a part of the public service. This is as it should be. Flowers, shrubs and trees are the “cosmetics” of the modern city. They perfume the atmosphere. They add color, charm and personality to the face of the community. They cover the wrinkles and conceal the blemishes. If Florida is the land of beauty that visitors and residents alike acclaim it to be, it is because ,of the activities of groups such as garden clubs and the beautification programs of progressive cities which have supplemented the indigenous flora and foliage with planned beautification programs, and with projects to replace the trees and shrubs which oftentimes have necessarily fallen before the march of progress. Such, therefore, is the nature of the public function involved. See Section 339.24, Florida Statutes, F.S.A.

The lessee, Garden Club of Lake-land, Inc., is not a private corporation for .profit. If it were, this lease could not stand. On the other hand, it is quasi public in nature. By this lease it obligates it-self to render a public service unlimited and unrestricted to its own membership. 'The lease is circumscribed by restrictions that preclude the exploitation of the land and contemplated improvements for private gain. There could be little, question that by a substantial additional expenditure of public funds the city could carry on the program which the Garden Club undertakes to effectuate without additional demands on the public treasury. Although the briefs refer us to cases in other states, we think it unnecessary to delve beyond .our own precedents which in principle give adequate support to the final decree of the Chancellor.

In Bailey v. City of Tampa, 92 Fla. 1030, 111 So. 119, we held that under a provision in the charter of the City of Tampa similar to the Lakeland charter quoted above, that city had the power, consistent with the provisions of Section 10, Article IX of our Constitution, to convey a parcel of land to the Tampa Board of Trade which agreed to build a building without expense to the City of Tampa. The building was to be financed by borrowing money against a mortgage thereon which would be liquidated within 35 years, after which the building would be turned over to the city subject to the continued use of such part thereof as would be needed by the Board of Trade. We call on the historical knowledge of Mr. Justice Terrell who wrote for this court in Bailey v. City of Tampa, supra, that the reason for the constitutional provision under consideration was to forbid municipal governments to engage directly or indirectly in private commercial ventures for profit and to restrict them to participating only in public services and governmental activities. It was there pointed out that the constitutional provision was occasioned, in the early days of our State, by the practice of cities and counties in becoming stockholders or bondholders in railroads, banks and other commercial enterprises which in the event of poor management and ultimate failure would burden the public with the responsibility of liquidating their indebtedness.

In the case last cited there was no suggestion that the municipality become a stockholder in the quasi public corporation or that it obtain or appropriate money for it or lend to it or any other association the public credit. Similarly, we find no such obligation imposed upon the City of Lake-land in the matter before us. Undoubtedly, Bailey v. City of Tampa, supra, was a pilot authority for the growth and development of the Chambers of Commerce that have contributed so extensively to the economic, social and cultural advancement of Florida, both at the state and local level. In that instance the City of Tampa was employing the facilities of a quasi public non-profit corporation to cooperate in the performance of a worthwhile and proper function of municipal government.

Possibly an even stronger precedent in support of the decree below was our decision in State v. City of Miami, Fla.1954, 72 So.2d 655. There it was held that the City of Miami could actually issue $100,000 of warehouse revenue certificates for the purpose of constructing a warehouse which would be leased to a non-profit organization known as the “Orange Bowl Committee” for the purpose of storing floats, material and equipment necessary for the annual Orange Bowl Festival and Pageant, which has become a national attraction of inestimable economic value to the entire state. An observation of this court in that case is in substantial measure appropriate to the matter before us. We quote from 72 So.2d at page 656 of the opinion:

“In the instant case, there is no use by the city of its authority ‘for private gain by a private corporation.’ As noted above, the Committee is a nonprofit organization whose members derive no pecuniary gain whatsoever from their activities, although we have no doubt that the personal satisfactions and spiritual values which accrue from their unselfish devotion to this public service are far more rewarding to them than would be any monetary compensation.”

The issuance of the warehouse revenue certificates for the stated purpose was held to be well outside of the prohibitions of Section 10, Article IX of the Florida Constitution.

We wish to clothe this opinion with the protective observation that it is not to be construed as carte blanche authority to municipal corporations to exploit publicly owned land or extend the favor of the pub-lie funds and credit directly or indirectly to promotional schemes or devices aimed immediately or ultimately at lining the pockets of private business or individuals. When such situations appear this court would undoubtedly adhere to its pronouncements in State v. Town of North Miami, Fla. 1952, 59 So.2d 779. We think that the same rule would apply to a project designed purely for the private benefit of the individual members of a quasi-public or eleemosynary association or corporation. Certainly such is not the situation now before us. On the contrary, we find a useful public purpose being served by the municipal government in cooperation with progressive citizens at no profit to the latter except the satisfaction of improving the community as a place in which to live. See also -Sunny Isles Fishing Pier v. Dade County, Fla.1955, 79 So.2d 667.

We find support for our conclusion in the decisions of courts of other states. See International Garden Club, Inc., v. Hennessy, 104 Misc. 141, 172 N.Y.S. 8, cited with approval in Bailey v. City of Tampa, supra. See also Moore v. Valley Garden Center, 66 Ariz. 209, 185 P.2d 998; Blaser v. Dalles City, Or., 137 P.2d 991, and a helpful annotation in City of Clovis v. Southwestern Public Service Co., 49 N.M. 270, 161 P.2d 878, 161 A.L.R. 504, at page 520.

The parties are commended for their helpful briefs and the Chancellor for his well-considered decree.

Finding no error, the .decree appealed from is—

Affirmed.

DREW, C. J., TERRELL, J., and CARROLL, Associate Justice, concur. ;


text:
    SUNSHINE STATE FAIR, Inc., a Florida corporation, Appellant, v. Nicholas R. JENIN, Appellee.
    Supreme Court of Florida. Division A.
    June 8, 1956.
    Warren, Klein & Moore, Miami Beach, for appellant.
    Curtin R. Coleman, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on authority of Clements v. Leonard, Fla. 1954, 70 So.2d 840.

DREW, C. J., and TERRELL, HOBSON and THORNAL, JJ., concur.