author: TERRELL, Justice. THOMAS, Justice HOBSON, Justice DREW, Chief Justice

text:
    Richard W. ERVIN, as Attorney General of the State of Florida, Appellant, v. LeRoy COLLINS, individually, R. A. Gray, as Secretary of State of the State of Florida, and Peaslee Streets, Appellees.
    Supreme Court of Florida. En Banc.
    March 5, 1956.
    See also 85 So.2d 833.

      Richard W. Ervin, Atty. Gen., and Howard S. Bailey, Asst. Atty. Gen., for appellant.
    R. A. Gray, Secretary of State, Tallahassee, in pro. per.
    Chas. S. Ausley, D. Fred McMullen, Ben C. Willis, Tallahassee, and William A. Mc-Rae, Jr., Bartow, for appellee LeRoy Collins, individually.
    Damon Yerkes, Jacksonville, for appel-lee Peaslee Streets.
   TERRELL, Justice.

This is a suit for declaratory decree instituted by Peaslee Streets against LeRoy Collins, individually, and as Governor, R. A. Gray, as Secretary of State, and Richard W. Ervin, as Attorney General. The complaint prays the court to take jurisdiction of the subject matter and the parties and determine whether or not Honorable LeRoy Collins having been elected Governor in 1954 for the unexpired term of Honorable Dan McCarty, deceased, is eligible to reelection for the four-year term beginning on the first Tuesday after the first Monday in January, 1957. A rash of pleadings and orders followed the complaint but we refrain from detailing them as this would serve no useful purpose. At final hearing the chancellor found and decreed that the election of Honorable LeRoy Collins in 1954 to complete the unexpired term of Honorable Dan McCarty, deceased, did not render him ineligible to run for and be elected Governor of Florida for the four-year term commencing in January, 1957. The Attorney General has appealed from the declaratory decree which was entered January 11, 1956.

The primaries for which all state and county candidates are required to qualify will be held May 8 and 29. Candidates for Governor and other state officers must qualify during the period from noon, February 21, to noon, March 6, 1956. The authority of the Attorney General to prosecute this appeal is not challenged. It is admitted that the question of eligibility of Collins to run for Governor at this time is of vital concern to the electorate of Florida and is of such public interest that it should be settled without delay. Section 12 of the complaint so alleges and the same section of the answer admits this allegation to be true. It is also admitted, or not questioned, that the Attorney General, being the legal representative of the people, should bring this question to the attention of the court for final adjudication. Section 16.01, Florida Statutes, F.S.A., State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929, and State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823, recognize the Attorney General as the chief law officer of the state and absent express legislative restriction to the contrary, may exercise his power and authority in the premises as the public interest may require. When the public interest is involved a more liberal rule governs who may appropriately bring an action of this kind and prosecute it to this court, if need be. Chapter 87, Florida Statutes 1953, Declaratory Judgments, F.S. A., and other extraordinary remedies govern the procedure. We think the case is properly here. Watson v. Claughton, 160 Fla. 217, 34 So.2d 243; Holland v. Watson, 153 Fla. 178, 14 So.2d 200; Reiter v. Wallgren, 28 Wash.2d 872, 184 P.2d 571; Capital Stages, Inc., v. State, 157 Miss. 576, 128 So. 759.

This is the first time we have been confronted with the main question presented by the appeal. It is our view that the answer to it is found in the interpretation of Sections 2, 3 and 19, Article IV of the Constitution, F.S.A., the said provisions being as follow:

“Sec. 2. The Governor shall be elected by the qualified electors of the State at the time and places of voting for members of the Legislature, and shall hold his office for four years from the time of his installation, but shall not be eligible for re-election to said office the next succeeding term; Provided, That the first election for Governor under this Constitution shall be had at the time and places of voting for members of the Legislature and State officers, A. D. 1888, and the term of office of the Governor then elected shall begin on the first Tuesday after the first Monday in January after his election.
“Sec. 3. No person shall be eligible to the office of Governor who is not a qualified elector, and who has not been ten years a citizen of the United States, and five years a citizen and resident of the State of Florida, next preceding the time of his election; Provided, that these limitations of time shall not apply to the President of the Senate or Speaker of the House of Representatives when, under this Constitution, the powers and duties of Govern- or shall devolve upon them.
* * * * * *
“Sec. 19. In case of the impeachment of the Governor, his removal from office, death, resignation or inability to discharge his official duties, the powers and duties of Governor shall devolve upon the President of the Senate for the residue of the term, or until the disability shall cease; and in case of the impeachment, removal from office, death, resignation or inability of the President of the Senate, the powers and duties of the office shall devolve upon the Speaker of the House of Representatives. But should there be a general election for members of the Legislature during such vacancy, an election for Governor to fill the same shall be had at the same time.”

We are called on to construe the terms of the Constitution, an instrument from the people, and we are to effectuate their purpose from the words employed in the document. We are not permitted to color it by the addition of words or the engrafting of our views as to how it should have been written. The point of our concern at this time has to do solely with the eligibility, election and term of Governor. As pointed out by the chancellor, it must be presumed that those who drafted the Constitution had a clear conception of the principles they intended to express, that they knew the English language and that they knew how to use it, that they gave careful consideration to the practical application of the Constitution and arranged its provisions in the order that would most accurately express their intention.

Guided by the principles stated in the preceding paragraph, let us examine the quoted provisions of the Constitution. Section 2 has to do with the election and term of Governor, fixes the beginning and length of his term and inhibits his election to “said office the next succeeding term”. Section 19 has to do with succession to the office of Governor in case of impeachment, death, resignation or inability of the Governor to discharge the duties of the office. It provides for filling the vacancy caused by death of the incumbent by election in .event there should be an election for members of the legislature during the vacancy.

Sections 2 and 19 are complementary in that Section 2 provides a four-year term and Section 19 provides for filling the office in the event of a vacancy from one of the extraordinary means enumerated therein. It is pertinent to point out that the makers of the Constitution imposed ineligibility for reelection only on those elected under Section 2, Article IV, and did not impose s'uch a restriction on those who succeeded to the office for the unexpired term as provided by Section 19, Article IV. The makers of the Constitution not having seen fit to impose ineligibility for reelection to the office of Governor on those succeeding to the office for the carxses stated in Section 19, Article IV, there is no authority for this court to impose such a restriction.

Section 3, Article IV, has to do with the eligibility ■ of one who aspires to be Governor. He must be a qualified elector, five years a citizen of the state and ten years a citizen of the United States. By proviso it removes these limitations from the President of the Senate and the Speaker of the House if the powers and duties of Governor devolve upon them. It follows that the inhibition against succession to the office under Section 3, Article IV, the qualifications of Governor, do not ap.ply to those succeeding under Section 19, Article IV, for the obvious reason that persons who may become President of the Senate and Speaker of the House and have the powers and duties of Governor devolve on them need only be qualified electors under Section 3, Article IV. The legislature has at no time, if indeed it has the power to do so, attempted to qualify said provisions of the fundamental law. Courts are law-interpreting and not law-making bodies and have no power to do so. The chancellor below, as did the Chancellor in Bryant v. Gray, Fla., 70 So.2d 581, decided February 23, 1954, reached this conclusion.

It is urged that the language, “shall not be eligible for re-election to said office the next succeeding term”, was included in the Constitution to prevent the incumbent exercising the powers of the office of Governor to aid his election for another term. Much talk has-been indulged about similar provisions which are found in other Constitutions but as to this case no such purpose is reflected by the Constitution or supported by those who suggest the charge. No such premise is established here and for this court to approve it unsupported would at ■least amount to charging the makers of the Constitution with being lax and careless.

The brief of appellant directs our attention to the fact that the provision of Section 2, Article IV, of the Constitution inhibiting the Governor from succeeding himself after a four-year term was included in the first Constitution of 1838, that it was not included in the Constitutions of 1861, 1865 and 1868, but that it then reappeared in the Constitution of 1885. This fact is of historical interest but for reasons not necessary to discuss it is not pertinent or material here. Appellant’s brief also suggests ambiguity of Section 2, Article IV. For the purpose of argument only, let it be assumed that said provision is ambiguous. The effect could do no more than cast a doubt on eligibility. If it amounted to this, under every accepted rule of interpretation, the doubt or ambiguity must be resolved in favor of eligibility. This court is committed to that doctrine. State ex rel. Fraser v. Gay, 158 Fla. 465, 28 So.2d 901, 904; State ex rel. West v. Gray, Fla., 70 So.2d 471. It may be that the insertion of a pronoun or connectives in the appropriate place would clarify Section 2, Article IV, but even so, we see no escape from the interpretation imposed on it so we conclude that the assault for ambiguity is without merit. To hold one ineligible to run for office where neither the Constitution nor the statute does so in express terms is contrary to every democratic precept.

Both parties to this cause invoke the aid of Fitzpatrick v. McAlister, 121 Okl. 83, 248 P. 569, and Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, to support their contention. Schardein v. Harrison had to do with a contest for mayor o.f Louisville. The Constitution of Kentucky, § 160 provided: “The terms of office of Mayors * * * shall be four years, and until their successors shall be qualified * * *. No Mayor * * * of any city of the first * * * class, after the expiration of the term of office to which he has been elected under this Constitution, shall be eligible for the succeeding term.”

In 1925 Arthur A. Will was elected Mayor of Louisville but his election was declared void and the office vacant. In June, 1927, O’Neal was appointed to fill the vacancy. He held the office under such appointment until November, 1927, when Harrison was elected to the unexpired term. In 1929, Harrison was a candidate for the full term. Plaintiff instituted suit to have Harrison declared ineligible for the office. The Supreme Court ruled Iiarrison eligible to run for the full term on the ground that the constitutional inhibition referred solely to one elected for a full four-year term. The court further held that neither the appointed mayor nor the mayor elected to fill the vacancy for the unexpired term was disqualified to run for a full term of four years. The Schardein case is pertinent and supports the conclusion reached here because of the similarity of the Kentucky Constitution to the Florida Constitution, Section 2, Article IV, in that both apply only to one elected to a four-year term. Both Constitutions treat a fixed term of four years and as the Kentucky court said, the fact that several persons may discharge the duties of the office during the four-year period, does not separate it into smaller terms or periods. In State ex rel. West v. Gray, supra, this court recognized the interpretation we impose in Section 2, Article IV, in re disability of a Governor for reelection who holds office for a four-year term.

In Fitzpatrick v. McAlister, supra, the point for determination was whether or not Trapp, the Lieutenant Governor who succeeded Walton, the impeached Governor, was eligible to run for and fill the office of Governor for the succeeding term. If the pertinent provisions of the Florida and ■Oklahoma Constitutions had been similar, we might have had a case in point. The controlling provision of the Oklahoma Constitution, Section 4, Article VI, provides that, “The Governor, Secretary of State, State Auditor, and State Treasurer shall not be eligible immediately to succeed themselves.”

The majority opinion of the Supreme Court of Oklahoma held in effect that when the Lieutenant Governor succeeded to the office of Governor, he was clothed with all the powers and duties of that office and that the inhibition against succession quoted above applied to him. Section 4, Article VI, of the Oklahoma Constitution is so different from Section 2, Article IV, of the Florida Constitution that we do not think the Oklahoma case is controlling-. The Governor of Oklahoma, regardless of the term for which he is serving, cannot succeed himself. In this holding we do not overlook Sections 15 and 16, Article VI and other provisions of the Oklahoma Constitution discussed in the opinion of that ■court but we do not think they are in point. In this we have not overlooked the contention of appellant in both his main and reply brief as to similarity of the Oklahoma case to the case at bar, but the terms of the applicable provisions of the Oklahoma Constitution and the approach of the court to it are not considered applicable to the case before us.

In Black v. Pate, 130 Ala. 514, 30 So. 434, the Supreme Court of Alabama applied the same rule of interpretation to the question of succession to office that we apply here. Section 26, Article V, Constitution of Alabama 1875 provides: “A Sheriff shall be .elected in each county by the qualified electors thereof, who shall hold his office for the term of four years, unless sooner removed, and shall be ineligible to such office as his own successor”. Said the Supreme Court in construing this provision, the person made ineligible is designated by the pronoun “who” which can have relation to no other than the person previously mentioned, viz., the sheriff elected by the qualified electors for the term of four years. Without an unwarranted extension of its terms, this provision cannot be made to include, or to render ineligible to succeed himself, one who has held the sheriff’s office only by appointment for a fractional term.

McGinnis v. Cossar, 230 Ky. 213, 18 S.W.2d 988, 989, follows the same reasoning as Black v. Pate. The pertinent part of the Constitution of Kentucky, § 99 provides, “ * * * but thereafter no Sheriff shall be eligible to re-election or to act as deputy for the succeeding term.” Said the Supreme Court of Kentucky, the contention that the words, “No sheriff shall be eligible to re-election or to act as deputy for the ■succeeding term,” limit and qualify the words “to act as deputy,” and not the word '“’reelection” is unsound. The words “for the succeeding term” plainly limit and qualify the word “reelection,” as well as the words “to act as deputy.” Any other construction would disqualify a sheriff who has filled the office for a full term forever thereafter. Sheriffs serving under appointment are not disqualified and, as said in Schardein v. Harrison, supra [230 Ky. 1, 18 S.W.2d 319], “Certainly it was not intended to prefer appointees to electees in this particular.” The words “succeeding term” imply a like term immediately preceding it. Wherever the word “term” appears in Section 99 of the Constitution, it is a full term that is referred to. “If the members of the constitutional convention had intended to render ineligible to succeed himself one who has held the sheriff’s office for a fractional term, apt language could have been used to express such intention, and undoubtedly one who has held the office by appointment for a fragment of a term likewise would have been disqualified from succeeding himself, since the same reason for disqualification would apply to him as to one who had been elected for a fragment of a term. Section 99, specifically provided that sheriffs elected in 1892 for the two-year term should be eligible to re-election in 1894, and this indicates an intention that disqualification should apply only to sheriffs elected for a full four-year term.” Bozeman v. Laird, 91 Miss. 719, 45 So. 722, under like circumstances and constitutional provisions applied the same rule of interpretation where the officer had served a fragment (one and one-half years) of a four-year term.

McGinnis v. Cossar, supra, concludes with the general rule that statutes and constitutions imposing restrictions upon the right of a person to hold office should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers. The only conclusion that one can draw from Black v. Pate, McGinnis v. Cossar, Schardein v. Harrison, and Bozeman v. Laird, supra, is that officers who have been elected to a full four-year term are ineligible for election to the succeeding term but that officers elected or appointed to serve the balance or fragment of an unexpired term are eligible for reelection to the succeeding term.

It would seem that the interpretation we have imposed on Sections 2, 3 and 19, Article IV of the Constitution, supported by Black v. Pate, McGinnis v. Cossar, Schardein v. Harrison and Bozeman v. Laird would conclude the main point in the case, but as heretofore pointed out, if there are ambiguities in Section 2, Article IV, or other applicable provisions of the Constitution, as asserted by the Attorney General under every known rule of constitutional interpretation such ambiguities should be construed in favor of Collins’ eligibility to run. No one, not even appellant relying on ambiguity, has attempted to overcome this rule and since it is the people’s Constitution we are interpreting, what could be more appropriate than to give them an opportunity to impose their views and say what they meant.

Stripped of surplus verbiage, appellant’s contention amounts to a “short cut” to amend the Constitution. He proposes to transpose the inhibition in Section 2, Article IV, “shall not be eligible for re-election to said office the next succeeding term”, to Section 19, Article IV, and effectuate it as to that section as if the makers of the Constitution did so when they made it. There are good reasons for not imposing this inhibition on one who succeeds to the office of Governor under Section 19, Article IV. The period for which he succeeds may be for a few weeks or months, depending on when the Governor dies or is for other reasons disqualified to serve. In this case the vacancy occurred about nine months after the Governor was inaugurated; the duties of the office then devolved on the President of the Senate until a general election intervened when Honorable LeRoy Collins was elected for the unexpired term of approximately two- years. In other words, three men exercised the powers of Governor during the four-year term for which Honorable Dan McCarty was elected. The Constitution is silent as to any inhibitions on those who completed the unexpired term of Honorable Dan McCarty. It would be ridiculous to impose such inhibitions on them for the reasons they are said to have been imposed by Section 2, there being no provision in Section 19 authorizing it. The method by which appellant proposes to amend the Constitution to speak where it is now silent does not comply with the pattern provided by Section 1, Article XVII, but if it did, it should be addressed to the legislature instead of to this court. For this and other reasons two able chancellors have rejected it and we feel impelled to follow their lead.

Honorable LeRoy Collins was elected to the unexpired term of Governor created by the death of Honorable Dan McCarty. Such election was pursuant to Section 19, Article IV, of the Constitution which has no provision, express or implied, against his running for the full term beginning in January, 1957. Even if there were doubts or ambiguities as to his eligibility, they should be resolved in favor of a free expression of the people in relation to the challenged provision of the Constitution. It is the sovereign right of the people to select their own officers and the rule is against imposing disqualifications to run. The lexicon of democracy condemns all attempts to restrict one’s right to run for office. The Supreme Court of the United States has approved the support of fundamental questions of law with sound democratic precepts. Florida is committed to the general rule in this country that the right to hold office is a valuable one and should not be abridged except for unusual reason or by plain provision of law. We have no such provision and to interpolate one into the Constitution is contrary to every rule of constitutional interpretation. It is beyond the power of this or any court to do.

The judgment appealed from is therefore affirmed.

Affirmed.

THORNAL and O’CONNELL, JJ., concur.

THOMAS, J., concurs specially.

DREW, C. J., and HOBSON and BUFORD, JJ., concur specially in judgment of affirmance.

THOMAS, Justice

(concurring specially).

I concur in the opinion of TERRELL, J.

But for emphasis I wish to state on my own account that two factors to my mind tip the scales of justice in favor of the eligibility of the present governor. One is the rule that even if uncertainty and ambiguity are present, as the attorney general states in his brief, construction should favor eligibility if that can be reasonably done in carrying out the intention of the framers, and the other is the result of that rule, namely, that if his eligibility is sanctioned, the electorate will have a broader field from which to choose an executive.

HOBSON, Justice

(concurring specially in judgment of affirmance).

Although I entertain considerable doubt concerning both the propriety of this appeal and the right of the plaintiff below to maintain this action, see my special concurring opinion in State ex rel. West v. Gray, Fla., 74 So.2d 114, 120-122, I accept without further comment the will of the majority upon this aspect of the case.

Most respectfully, however, I disagree with that portion of my revered brother’s opinion wherein it is stated in substance that our constitution is clear and permits of but one logical and reasonable construction, to wit: that the framers did not intend the prohibition contained in Section 2, Article IV to apply to a person who might be elected to the office of Governor for less than the full four-year term prescribed in and by the same section. In my opinion it is at least equally logical and reasonable to conclude that the framers of our constitution intended the prohibition against “reelection to said office [of Governor] the next succeeding term” (italics supplied) to apply to every person once elected to the office of Governor because there can be no reelection to office unless the one so reelected has theretofore been elected to such office. Moreover no one who might perform with constitutional sanction the duties of the office of Governor is in truth and fact “the Governor” unless he be elected by the people to such office. Anyone who performs the duties imposed upon a Governor by organic law other than a person elected by the people to such office does so by virtue of holding another constitutionally recognized office. The prohibition of Section 2 of Article IV is specifically directed against “the Governor”. It may readily be argued that there was no real necessity for, or reason to, repeat such prohibition in Section 19, Article IV.

In a case such as this wherein the eligibility of a citizen of this State to seek election to, and if elected, to hold the high office of Chief Magistrate i-s in question, the law, as well as the fundamental concept which gave birth to our form of government and which inheres therein, directs that we not guess or merely make a choice between two or more reasonable and logical constructions of the constitution’s provisions but, on the contrary, that we allow the doubt created by the lack of certain clarity of such provisions to be resolved by “the voice of the people”. Vox populi is the very essence of our democracy.

Certainly doubt does exist as to the true intent of the framers with reference to the question presented herein. At least two reasonable and logical constructions are deducible from a studied consideration of the pertinent provisions of our constitution. Moreover the fact that such doubt is present is made more certain when we consider the opinions of courts in foreign jurisdictions wherein a problem very similar to the one presented herein arose. We learn from briefs of counsel that courts of last resort in two sister states have been faced with an almost identical question and those courts reached diametrically opposite conclusions. See Fitzpatrick v. McAlister, 121 Okl. 83, 248 P. 569 and Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316.

In the case of State ex rel. West v. Gray, Fla., supra, I adopted the same view which I have expressed herein. Eligibility was not challenged in that case upon the same basis as here but in the West case as in this case, at least in my opinion, doubt existed as to the eligibility of a citizen to seék and, if chosen, to hold the highest office within the gift of the people of Florida. I quote from the special concurring opinion prepared and filed by me in the case of State ex rel. West v. Gray, supra [74 So.2d 123] :

“With the growth of our institutions the field of public law has today become a complex science, and in applying its principles to new situations the danger of falling into error, always to be considered in the operation of fallible human agencies, is aggravated by the possibility of far-reaching consequences. In a case such as this, where the question sought to be raised is whether or not a candidate for the highest office the State can bestow is to be barred at the outset from submitting his qualifications for the traditional and sovereign expression of the public forum, it is easy to sense the direction in which the greater danger lies.”

For the foregoing reasons I concur in the judgment of affirmance.

BUFORD, J., concurs.

DREW, Chief Justice

(concurring specially in judgment of affirmance).

I agree with all that is said in the foregoing opinion of Justice HOBSON except the first paragraph thereof. It is my view that not only is this matter properly before us on the appeal of the Attorney General but that it was his clear duty, having been made a party in the lower court, to prosecute a matter of this importance to a conclusion in this Court.


source: Caselaw Access Project

author: TERRELL, Justice. DREW, Chief Justice

license: Public Domain

text:
    George HORN, Appellant, v. Alma HORN, Appellee.
    Supreme Court of Florida. Special Division A.
    March 7, 1956.
    See also 73 So.2d 905,
    Fitzgerald & Wallace, Miami, and Victor M. Cawthon, Tallahassee, for appellant.
    Richard & Muroff, Miami Beach, for ap-pellee.
   TERRELL, Justice.

In August, 1953, appellee filed her complaint in Dade County praying for divorce from appellant on the ground of extreme cruelty and habitual intemperance. Defendant answered by denial and interposed the defense of separation from bed and board for abandonment in New York. Copy of the final judgment of the New York court entered April 30, 1953, was attached to the complaint. It awarded custody of their child, twenty-two months, to the mother and required the husband to pay $15 per week for its support.

At final hearing, the Circuit Court of Dade County ordered the husband to pay the wife $165, arrears due for support of the child under New York decree, and to continue such payments weekly. He granted the wife an absolute divorce, ordered the husband to contribute $20 each week for support of the child and to pay the wife’s attorneys fees, including cost of the litigation. The husband has appealed from that decree.

The primary question is whether or not the New York decree granting the husband a divorce from bed and board on the ground of abandonment bars the wife’s action for divorce in Dade County on the ground of habitual intemperance.

In our view this question requires a negative answer on authority of Gordon v. Gordon, Fla.1952, 59 So.2d 40; Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445, and Roy v. Roy, Fla.1954, 73 So.2d 294. These cases approve the doctrine that where one spouse brings separate maintenance proceedings on the ground of abandonment, the judgment secured is not res judicata or estoppel as to Florida divorce proceedings by the other spouse on grounds of alleged habitual intemperance or extreme cruelty since the actions are entirely different.

Other questions have to do with whether or not the evidence supports the final decree and whether or not the said decree was equitable as to right of visitation of the minor child by the father on account of the distance between the domicile of the mother and father.

These questions have been examined but we find no reversible error so the judgment is affirmed.

Affirmed.

DREW, C. J., concurs specially.

HOBSON and O’CONNELL, JJ., concur.

DREW, Chief Justice

(concurring specially).

I concur in the opinion and judgment above with the following observation:

The final decree in this cause contained a reservation of jurisdiction of “the right to grant alimony to the plaintiff in the future.” Appellant’s Fifth Assignment of Error was directed to this provision of the final decree but the same was not argued in the brief and we must, therefore, conclude that it was abandoned. 30 F.S.A. Supreme Court Rule 36(9).


author: PER CURIAM. PER CURIAM.

text:
    MACLOU CORP., a Florida Corporation, Petitioner, v. CITY OF MIAMI BEACH, a Municipal Corporation, Respondent.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.
    Rehearing Denied March 7, 1956.

      Morris Berick, Miami Beach, for petitioner.
    Joseph A. Wanick and Wilson C. Mc-gee, Miami Beach, for respondent.
   PER CURIAM.

By petition for certiorari the petitioner seeks reversal of an order of the Circuit Court affirming conviction of the petitioner in the Municipal Court of the City of Miami Beach.

The particular ordinance alleged to have been violated apparently was copied after Section 435-b of the Penal Law of the State of New York, McK.Consol.Laws, c. 40. The decisions of the New York courts are, therefore, especially applicable. Several New York cases involving substantially similar facts sustain the conviction of the petitioner by the Miami Beach Municipal Court. See People v. Leder, 258 App.Div. 879, 16 N.Y.S.2d 291; People v. Lewis, 138 App.Div. 673, 122 N.Y.S. 1025; People on Complaint of Waller v. Branfman, 147 Misc. 290, 263 N.Y.S. 629.

A careful examination of the record leads us to the conclusion that the Circuit Judge in the exercise of his powers as an appellate court had an adequate basis in the evidence as a whole to sustain his conclusion and he properly applied the law applicable in affirming the Municipal Court.

The petition is, therefore, denied.

DREW, C. J., and TERRELL, HOB-SON and THORNAL, JJ., concur.

On Petition for Rehearing

PER CURIAM.

By petition for rehearing our attention is invited to the fact that in the original opinion we made reference to Section 435-a of the Penal Law of the State of New York. The correct reference is and should be Section 435-b of the Penal Law of the State of New York. The original opinion has been corrected accordingly. The authorities cited, however, are equally applicable to the case at bar, and the petition for rehearing is therefore

Denied.

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


author: O’CONNELL, Justice.

text:
    Robert GATES, individually and for the use and benefit of John Gates, Appellants, v. Leonard J. ROBERTS and Virene Roberts his wife, Appellees.
    Supreme Court of Florida. Division A.
    March 7, 1956.

      J. W. Pettyjohn and John Paul Howard, Jacksonville, for appellants.
    Releford McGriff, Jacksonville, for ap-pellees. '
   O’CONNELL, Justice.

This appeal from a final decree for defendant in ejectment is before the Court upon a stipulated record. The material facts appearing therefrom are:

The appellant Gates, in 1912, acquired title to certain realty, and made his home there with his family until their house was torn down in 1935. Between 1934 and 1941 the title passed to the state when appellant ceased to pay taxes, and the appellees, owners of the neighboring tract, commenced in 1939 to farm appellant’s land with their own. In 1941 the appellant bought back his original parcel from the Trustees of the Internal Improvement Fund at sale to satisfy outstanding yearly tax certificates. He paid all taxes accruing thereafter, but did not bring any action to recover possession from appellees, who held adversely without color of title from 1941 through 1945.

In 1953 appellant instituted this action in ejectment and, by order on pre-trial conference, the court denied a motion by him to strike the defendants’ answer as insufficient in law for failure to allege compliance with F.S. §§ 95.18, 95.19, F.S.A., governing acquisition of title by adverse possession in this state. The case was presented to the jury upon instructions that if defendants were in “actual adverse possession” of the property on the date plaintiff acquired his tax deed, and so remained for four years thereafter, then plaintiff was estopped from asserting his claim for possession by action in ejectment, without regard to the fact that defendants had not returned the property for taxes, or laid claim to it for the statutory period of seven years prescribed by Chapter 95, supra. The issues were thus defined on the theory that plaintiff was limited by F.S. § 196.06, F.S.A., to a period of four years from the date of his tax deed in which to bring an action for possession, if in fact defendants’ allegations o-f hostile use and occupancy during that period were proven. (Sec. 196.06 provides that a tax deed holder, “where the said real estate is in adverse actual possession, occupancy and use of any person, shall not he entitled to recover possession of such real estate under such tax deed, unless suit for such recovery shall be brought within four years from the date of such tax deed.”)

Even assuming, as an abstract proposition, that the court properly construed the terms “adverse actual possession” appearing in section 196.06, it would seem, nevertheless, that under the circumstances it erred in applying the bar of the statute against appellant. The record shows affirmatively, as a conceded fact, that he held record title to the property in question, prior to his tax delinquency in 1935. The general rule laid down by our statutes, and repeatedly acknowledged in past decisions of this Court, is that the defaulting owner retains a sufficient interest in land so acquired by the state that he may, at any time before title passes by actual issuance of a tax deed to a purchaser, reacquire or clear his own title by redemption. Hightower v. Hogan, 69 Fla. 86, 68 So. 669; Fountain v. State ex rel. McCaskill, 94 Fla. 746, 114 So. 511; Banks v. Shaw, 144 Fla. 550, 198 So. 341. Such a right is not merely equitable in nature, but has been held sufficient to support an action of ejectment by the former owner to contest the validity of a tax deed issued by the state. Kester v. Bostwick, 153 Fla. 437, 15 So.2d 201.

In the situation at bar, the act of the original owner in obtaining a tax deed upon sale to satisfy outstanding certificates for taxes which it had been his duty to pay, should logically be regarded, in legal effect, as a redemption, reviving his title to its former status as if the default had not occurred. “There is a general principle * * * that a purchase made by one whose duty it was to pay the taxes, shall operate as a payment only * * * ” Cooley on Taxation, p. 315. Such has been the construction placed upon a tax deed purchase by a former owner even under legislation expressly designed to permit the creation of a new and independent title by tax deed validly issued thereunder. Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205. This seeming inconsistency is resolved by reference to “latent interests” of the former owner, and circumstances by which he was estopped to deny continuity of title, or a reviver. The fact that the former owner could not technically “redeem” under the terms of the statute did not prevent his purchase having the effect of redemption.

As stated in one case, expressly recognizing that a deed acquired by tax foreclosure initiates a new and independent title, “such new and independent title becomes ineffectual” when it is again vested in one who formerly had an interest in the property, the newly acquired title having its genesis in the default of the one obtaining new title. Torreyson v. Dutton, 137 Fla. 683, 188 So. 805, 190 So. 430.

The doctrine of merger has been applied in a wide variety of circumstances involving acquisition of tax title by a defaulting owner, as an illustration of “the policy of the law of this state to safeguard the rights of the property owner to the end that his property may not be sacrificed in proceedings to collect delinquent taxes”. Fountain v. State ex rel. McCaskill, supra [94 Fla. 746, 114 So. 513], See Haynes v. Woodward, 154 Fla. 111, 16 So.2d 736; Torreyson v. Dutton, supra; Andrews v. Andrews, supra.

The fact that title under such a deed is or may be “new and independent,” so far as claims by former owners adverse to the new title are concerned, cannot reasonably preclude its merging with the former record title, so as to bolster, reinstate, or restore continuity to it, no intervening rights having become vested or accrued. “The authorities generally hold that the presumption of law is that the party purchasing or redeeming tax certificates does so for the protection of his own interest.” 3 Cooley on Taxation (4th ed.), sec. 1263, Clermont-Minneola Country Club v. Coupland, 106 Fla. 111, 143 So. 133, 137, 84 A.L.R. 1354. The same presumption might be made in this case.

Appellant would therefore be entitled, in ejectment, to contest the sufficiency of the defense of adverse possession by reference to the g-eneral statutes on the subject of divestiture of title by that means, secs. 95.18, 95.19, supra, and the appellees’ answer was obviously subject to motion to strike for failure to state a sufficient defense in that respect.

For the reasons stated the cause is reversed with directions for further proceedings in conformance herewith.

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


author: THORNAD, Justice.

text:
    Mrs. Grace WEIR, Appellant, v. PALM BEACH COUNTY, and the State Road Department of the State of Florida, Appellees.
    Supreme Court of Florida. Special Division A.
    March 7, 1956.

      Anderson, Scott, McCarthy & Preston and Dwight Sullivan, Miami, for appellant.
    Harry A. Johnston and Henry F. Lilien-thal, West Palm Beach, for Palm Beach County.
    Bryan W. Henry, Miami, for State Road Department of Florida.
   THORNAD, Justice.

Appellant Weir who was plaintiff below appeals from a decree of the Chancellor sustaining a motion to dismiss her amended complaint.

The complaint in equity consisted of five “counts”. It alleges that plaintiff owned certain realty in Delray Beach bounded on the north by Atlantic Avenue and on. the east by Canal Avenue, which is paralleled on the east'by the Intracoastal Waterway. A building facing Atlantic Avenue was located on the property and a parking lot to the rear of the building was accessible from Atlantic Avenue via .Canal Avenue. - The two streets intersected.

Beginning in October, 1951, and continuing until early 1953 it is alleged that the defendants engaged in a highway construction program which included the resurfacing and widening of Atlantic Avenue and replacement of a bridge over the Intra-coastal Waterway. In count 1 appellant alleged that in the course of the construction program the defendants removed part of the public sidewalk; took part of plaintiff’s land and destroyed the lateral support for plaintiff’s land thereby causing the building to settle and crack. Count 2 claims damages for loss of business due to the prolonged period of construction. Count 3 claims damages for destroying the access to plaintiff’s parking lot from Atlantic Avenue via Canal Avenue which resulted from the building of a retaining wall across the north end of Canal Avenue where it intersects Atlantic Avenue thereby eliminating entrance-into Canal Avenue from Atlantic Avenue, except by a circuitous route running west and south of plaintiff’s property. Count 4 claims loss of business and damages through enforced reduced rentals resulting from the construction of the retaining wall along the south boundary of Atlantic Avenue and in front of plaintiff’s building forcing prospective customers to descend one of several flights of stairs in order to enter plaintiff’s building and also destroying the view from the building. Count 5 was a composite claim that by committing the acts alleged the defendants have taken part of plaintiff’s property for the benefit of the public without compensation to the plaintiff thereby resulting in unjust enrichment of the defendants to the damage of the plaintiff. The complaint prays for restitution of the benefits acquired at plaintiff’s expense or in the alternative a decree compensating plaintiff for loss of such benefits. Motions to dismiss the complaint were sustained and final decree entered for the defendants.

Although count 1 contains the bald allegation that the “defendants took part of plaintiff’s land,” it is not shown what part or how much of plaintiff’s land was taken and in actuality it is conceded that the defendants did not in fact physically appropriate any part of the land itself. The complaint is grounded on the theory that the damages suffered by the plaintiff as" a result of the improvement of the public way are tantamount- to a “taking” of plaintiff’s property without compensation in contravention of our constitutional requirements. The relief sought is to compel restitution by compelling the defendants to exercise the power of 'eminent domain whereby the damages suffered by the plaintiff might be assessed and restitution accordingly made. We are confronted with the question whether removal of lateral support from real estate upon which a building has been constructed or interference with ingress, egress and view or interference with convenient accessibility all resulting from improvement of a public way and not involving any actual taking or physical invasion of the land of the complaining property owner is com-pensable as a “taking” under the Florida Constitution.

Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A., reads:

“No person shall be subject to be twice put in jeopardy for the same of-fence, nor compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property he taken without just compensation.” (Emphasis ours.)

Section 29 of Article XVI of the Florida Constitution reads:

“No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.”

If the damage suffered by the plaintiff is the equivalent of a “taking” or an appropriation of plaintiff’s property for public use, then our_ Constitution itself recognizes the plaintiff’s right to compel compensation. On the other hand, if the damage suffered is not a taking or an appropriation within the limits of our organic law, then the damages suffered are damnum absque in-juria and compensation therefor by the defendants cannot be compelled.

Appellant relies on State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868, wherein the owner of a water-operated sawmill was allowed compensation for the raising of the water level in his millrace thereby reducing capacity of the mill as the result of the filling in of a swamp by the State Road Department. There is a difference which should be pointed out. In the Tharp case, the fill constructed by the Road Department actually resulted in physical invasion of the property owner’s millrace by causing an additional three feet of water to back up into the millrace itself. We had no such physical invasion in the case at bar. Here the government neither directly nor indirectly entered upon the actual property of .the appellant.

With reference to the alleged destruction of lateral support, the appellant apparently overlooked the proposition that the right to lateral support from adjoining land applies only to the land in its natural state and does not extend to lands burdened by a building. Some authorities make an exception that damages can be recovered if the excavation destroying the lateral support is negligently made. We are not concerned with this exception for the reáson that the complaint does not allege negligence in the excavation work in the case before us. See Crum v. Sumter County, 68 Fla. 122, 66 So. 723.

We find no Florida case directly on this point. However,, the Supreme Court of Alabama in H. H. Parker & Bro. v. Hodgson, 172 Ala. 632, 55 So. 818, 819, held:

“It is a settled principle of law that the right to lateral support applies to the land in its natural condition, and an adjoining landowner cannot by erecting buildings on the margin of his own land deprive the owner of the at-tingent lot of the right to excavate his own lot up to the'lirie of his neighbor’s property, though on account of the additional burden placed upon the land, by the erection of the house thereon, said house may fall, by reason of the withdrawal of the lateral support.”

The rule is well stated in 1 Am.Jur., Adjoining Landowners, Sec. 21, p. 519, as follows : . .

“The easement of natural support of the land of one by the land of the adjoining owner applies only to lands m their natural condition, and does not extend so as to give the owner of a building erected on the confines of his land the right to have support for his increased burden resulting in increased lateral pressure. One landowner cannot, by altering the natural condition of his land, deprive the adjoining proprietor of the privilege of using his own land as he might have done before; and consequently, he cannot, by building a house near the margin of his land, prevent his neighbor from excavating his own soil, even though it may endanger the house.” (Emphasis ours.)

See also Annotation to Prete v. Cray, 49 R.I. 209, 141 A. 609, 59 A.L.R. 1241.

The rule is also announced in Vol. 1 of Elliott on Roads and Streets, Sec. 229, as follows:

“It has been held that an owner whose land adjoins a public street is entitled to have the lateral support of his land remain undisturbed, and that a wrongful destruction of it is a taking within the meaning of the constitution. Lateral support is the right which soil in its natural state has to support from land adjoining it. One of the old principles of the law is that soil in its natural state is entitled to this support, but the rule does not go farther than this, for the right to support extends only to the soil, and not to structures placed upon it. There is, therefore, much reason for holding that the destruction of the right of lateral support, giving to the term its true legal signification, is a taking of property, but when we undertake to extend the doctrine so far as to embrace a right to support for the soil burdened with structures there is difficulty. The general rule is that, after the right to a street has been acquired, the municipal corporation may use it as a private owner may do his own property, and, as a private owner is not bound to leave support for soil burdened with buildings, it would follow that a public corporation is under no greater obligation.” (Emphasis ours.)

In applying a constitutional provision similar to our own, the Supreme Court of Indiana in Freigy v. Gargaro Co., 1945, 223 Ind. 342, 60 N.E.2d 288, 290, held:

“Public work resulting in withdrawal of lateral support does not constitute a taking within our constitutional provision that ‘No man’s property shall be taken by law, without just compensation * * *.’ * * * As said in Brown v. State [211 Ind. 61, 5 N.E.2d 527], this is settled in Indiana, although in other states and under varying constitutional provisions the rule is otherwise. See notes 7 A.L.R. 806, 38 A.L.R. 19 and 44 A.L.R. 1494.”

Any contrary view would enable an abutting property owner to construct a building on his land in such fashion that in many cases it would completely stultify the improvement of the public way in the public interest. For a helpful discussion on the question of damages to private property caused by negligence of government agents as a “taking” for public purposes see Annotation 2 A.L.R.2d 677.

As to “count 1” of the complaint in this case, therefore, we hold that under the language of the Florida Constitution, the alleged destruction of lateral support to the property of the plaintiff upon which a building had been established is not a taking or appropriation for which compensation must be paid.

The other counts of the complaint deal with alleged impairment of ingress and egress as well as previously existing view. The complaint does not allege that the plaintiff was totally deprived of ingress or egress to her property. It does allege that she has been deprived of the view of the Intracoastal Waterway.

The owner of property abutting a public way has a right of ingress to and egress from his property as well as a right to enjoy the view therefrom. However, these are rights which are subordinate to the underlying right of the public to enjoy the public way to its fullest extent as well as the right of the public to have the way improved to meet the demands of public convenience and necessity. If the improvement for the benefit of the public interferes with the pre-existing means of ingress and egress and view enjoyed by the individual property owner, without an actual physical invasion of the land of the property owner, then again we have a situation where the individual right is subordinate to the public good and any alleged damage suffered is damnum absque injuria. This is so for the simple reason that one who acquires property abutting a public way acquires it subject and subordinate to the right of the public to have the way improved to meet the public need. See Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 394; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L.R.A. 370; Dorman v. City of Jacksonville, 13 Fla. 538. Supporting authorities are cited in the able dissenting opinion of the late Chief Justice Mathews in State Road Dept. of Florida v. Lewis, Fla.1955, 79 So.2d 699, where the majority view was grounded on a question of pleading and not on the merits of controversy.

We, therefore, hold that the interference with the so-called consequential rights of the plaintiff under the facts alleged in this complaint are not tantamount to the “taking” or appropriation of plaintiff’s property for which the Florida Constitution requires compensation.

We have not heretofore commented on the problem of whether the claims of the plaintiff are grounded upon a tort against which both defendants are immunized from liability. Section 341.25, Florida Statutes, F.S.A., reads in part as follows:

“Suits at law and in equity may be brought and maintained by and against the state road department of the State of Florida on any claim under contract for work done; provided, that no suit sounding in tort shall be maintained against the said state road department.” (Emphasis ours.)

It has long been the rule that counties are not liable for torts. See Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372.

Although no negligence is alleged, at the same time the plaintiff fails to base her cause “on any claim under contract for work done” which is stipulated as a condition to suit against the State Road Department. Actually, the concluding prayer is “for restitution of the benefits which defendants have tortiously acquired at plaintiff’s expense”. Certainly, the alleged wrongful acts sound in tort and having heretofore determined that the alleged acts of defendants are not the equivalent of a taking or an appropriation of the plaintiff’s property that would enable the plaintiff to invoke the self-executing provisions of the Constitution in her behalf, we now also hold that the claims asserted sound in tort and that suit against both defendants upon such claims is barred by the immunity of the sovereign, absent statutory consent. No such consent is here present.

Other errors assigned have been carefully considered but have been found to be without merit.

Finding no error, the decree of the Chancellor is

Affirmed,

DREW, C. J., HOBSON, J., and MIL-LEDGE, Associate Justice, concur.


author: THORNAL, Justice.

text:
    Robert G. FAIRCLOTH, as Administrator of the Estate of Carswell E. Faircloth, deceased, Appellant, v. Walter E. HILL and Willey E. Allen, Appellees.
    Supreme Court of Florida. Special Division A.
    March 7, 1956.
    Butt & Abridge, Cocoa, for appellant.
    J. Thomas Gurney, Orlando, for Walter E. Hill.
    David L. Shannon, New Smyrna Beach, for Willey E. Allen.
   THORNAL, Justice.

Appellant Faircloth, who was plaintiff below, seeks reversal of a final judgment entered pursuant to an order sustaining appellee Hill’s motion to dismiss the amended complaint as to the said Hill.

The crux of the lawsuit is set forth in the complaint as follows:

“On or about January 1, 1953, at 3 :00 A.M. and prior to the time of the collision herein alleged, Carswell B. Faircloth was riding as a guest passenger in the automobile of Walter E. Hill which was being driven in a northerly direction on U. S. Highway Number 1, also known as Florida State Highway No. 5; that when the said Walter E. Hill was a distance of more than eighteen hundred (1800) feet to the south of the place where the aforesaid truck and trailer was parked as aforesaid, the aforesaid lights on the rear of said truck and trailer were plainly visible to the said Walter E. Hill and the said Walter E. Hill, in the exercise of slight care, knew or should have known, that the said truck and trailer of Willey E. Allen was parked on the highway as aforesaid in sufficient time to avoid collision, but that nevertheless thereafter for a distance of seventeen hundred and eighty (1780) feet the said Walter E. Hill drove his said automobile at seventy (70) miles per hour in wanton disregard of the safety of others on the highway including Carswell B. Faircloth, and without the slightest necessity or justification for so doing, the said Walter E. Hill, proceeded at said high and dangerous rate of speed in a straight line directly toward the large lighted rear end of the said truck and trailer of Willey E. Allen, parked and lighted as aforesaid without veering to the left, without applying his brakes in time to avoid collision, or without slackening of his speed in time to avoid collision, any one of which acts the said Walter E. Hill could have done and would have done, but for his wanton disregard for the safety of others as aforesaid, including Carswell B. Faircloth, and the said Walter E. Hill applied brakes on his automobile while he was still traveling at seventy (70) miles per hour, when he was twenty (20) feet from the rear of the aforesaid truck and trailer, although the lights on his automobile were shining brightly from six hundred (600) to nine hundred (900) feet down the highway in front of his said automobile and the lights were lighted on the rear end of said truck and trailer as aforesaid for half a minute before the crash, and as a result of the grossly careless and negligent operation of said automobile by Walter E. Hill as aforesaid, the front portion of said automobile collided squarely with the rear portion of said truck and trailer, and the said Chevrolet automobile was driven into the rear of said truck and trailer with such great speed and force that it was jammed six feet under the said trailer up against the rear axles of said trailer and it was necessary for the wrecker which removed said Chevrolet automobile to jerk hard five or six times before said Chevrolet automobile could be moved from under said trailer.”

In addition it was alleged that for at least a half-minute before the collision the following lights were burning on the rear end of the Allen trailer: (a) a light 2*/2 inches in diameter located in each of the upper rear corners, (b) a side marker light 2i/2 inches in diameter located near the rear of the trailer on each side, (c) a 3% inch tail light located near the center of the rear of the trailer, (d) a red reflector 3% inches in diameter located in each of the lower, corners of the rear of the trailer, (e) the left • turn blinker light 4%' inches in diameter had been flashing, (f) hearing the approaching car of Hill, the driver of the truck was pumping his brake pedal for fifteen seconds before the collision causing the two red stop-lights 6j4 inches in diameter'on the rear portion of the trailer to flash. ■

The collision occurred when the automobile operated by Hill was driven into the rear of the truck and trailer with such speed and force that it was jammed six • feet under the trailer against the rear axle thereof. Appellee Hill moved to dismiss the complaint for failure to state a cause of action as to him. The trial judge sustained the motion and upon appellant’s decision to rely upon his amended complaint without further amendment, a judgment was entered accordingly for the defendant-appellee Hill. Appeal is from that judgment.

The appeal presents the single question as to whether the amended complaint as tested by the provisions of Section 320.59, Florida Statutes, F.S.A,, alleges gross negligence on the past of Hill sufficiently to create a cause of action in favor of appellant whose decedent was a non-paying guest in the automobile of Hill. The pertinent part of the cited statute is as follows:

“No person transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a 'cause of action for damages against such owner or operator for injury, death-or loss, in case of accident, unless such accident shall have been caused by the gross negligence or will-' ful and wanton misconduct of the owner or operator of such motor vehicle, and unless such gro’ss negligence or willful and wanton misconduct was the proximate cause of the injury, death of loss for which the action is brought; * * ■

To support, the judgment, appellee Hill relies strongly on our decisions in O’Reilly v. Sattler, 141 Fla. 770, 193 So. 817; and Orme v. Burr, 157 Fla. 378, 25 So.2d 870. Orme v. Burr, supra, was decided by this court on an appeal from a judgment for the defendant after a jury verdict in his favor. We held that on the evidence presented, the jury’s verdict for the defendant automobile owner was justified. The case now before us tenders the question of whether gross negligence is pleaded sufficiently to enable the plaintiff to proceed to proof. O’Reilly v. Sattler, supra, presented for consideration the decision of a trial judge to direct a verdict for a defendant automobile owner after all of the plaintiff’s evidence had been offered. The court commented that there was no proof to show any conclusive clue or presumption as to just how the collision took place. The record clearly lacked the detail of all of the related facts which are present in the case before us.

We have held that excessive speed alone without other factual evidence of negligence is insufficient to sustain a complaint for gross negligence under the statute cited. See: Ayers v. Morgan, Fla.1949, 42 So.2d 2; Leslie v. West, Fla.1949, 38 So.2d 821. As a matter of fact it is exceedingly difficult, if not well-nigh impossible, to delineate the requirements of gross negligence with a decree of exactness that could lead us to a logical certainty. Although ordinarily “negligence” and “willfulness” are mutually exclusive terms (38 Am.Jur. Sec. 338, p. 692), we have held that the term “gross negligence” as used in this particular statute is in substantial measure synonymous with the term “willful and wanton misconduct” as used in the same statute as an alternative to gross negligence. The term is very well defined by the opinion of Mr. Chief Justice Drew in Bridges v. Speer, Fla.1955, 79 So.2d 679. In fairness to the trial judge, however, it should be noted that this opinion had not been handed down at the time of the trial of this case.

Although degrees of negligence appear to have been introduced into the common law from the civil law of the Middle Ages, modern authorities are leaning to the view that absent statutory requirements any effort to divide negligence into degrees is highly impracticable, primarily because of the difficulty in defining the line of demarcation between the several degrees. Our statute, however, requires the presence of gross negligence and such must be alleged and proved in order to sustain a cause of action in a case like the one before us.

It might be helpful to realize that the term “degrees of negligence” is actually a negative expression, the positive counterpart of which is “degrees of care”. By examining the presence or absence of various degrees of care, we oftentimes can come to a clearer understanding of the several degrees of negligence. For example, “slight negligence” involves a failure to exercise great care. “Ordinary negligence” is the failure to exercise ordinary care. By this same rule “gross negligence” is the absence of the exercise of “slight care”. It is the omission or commission of an act with a conscious indifference to consequences so far as other persons are concerned. See 38 Am.Jur., Negligence, Sections 43, 45, 46 and 47; also Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565.

We have held that all of the circumstances of each case entering into the particular happening must be considered in order to determine whether liability exists. See Dexter v. Green, Fla.1951, 55 So.2d 548. In the same case we held that while each separate act involved in the drama might not in and ■ of itself establish gross negligence, nevertheless, the entire course of conduct of the automobile driver under all of the circumstances and in the light of all of the related factors taken collectively might well establish the existence of gross negligence by pointing to the conclusion that the driver of the car knew or should have known that his conduct placed others in danger of grave injury and that under all of the circumstances he could be found guilty of a conscious indifference for the safety of others.

It appears to us that under the allegations contained in the amended complaint it was error to sustain the motion to dismiss. We cannot, of course, vouchsafe appellant’s ability to prove these allegations. However, we do feel that they were sufficient to require an answer and the submission of proofs. This is not a case where the driver of the automobile suddenly came upon an unlighted object in the dark and as the result of speed alone was unable to stop the vehicle in time to avoid the collision. See De Wald v. Quarnstrom, Fla.1952, 60 So.2d 919. Under the allegations of this complaint the automobile of the defendant Hill was being driven at a speed of 70 miles per hour on a clear night, with unimpeded visibility, on a road that was straight for a distance of 1800 feet. The truck into which he collided was lighted with almost every type of warning light imaginable. It is alleged that the red lights were visible this entire distance. While it is true that flares had not been placed on the road, we do not consider that the absence of flares materially affects the obvious lack of care on the part of the automobile driver alleged in the complaint in this instance. Also, we are not passing upon the question of the negligence of the truck driver. Appellee contends that the collision could have resulted from some momentary lapse or error in judgment on the part of the driver of the automobile. While these might be defensive matters that could be submitted to a jury in defense of the claim of gross negligence, we cannot infer them from the allegations of the complaint. So far as the complaint reveals, this tragic collision could have been avoided by the exercise of “slight care” on the part of the driver of the automobile and it appearing from the allegations that he failed to exercise the slightest degree of care commensurate with the circumstances, the complaint was at least sufficient to charge gross negligence within the limits of our prior decisions. See Shams v. Saportas, 152 Fla. 48, 10 So.2d 715; De Wald v. Quarnstrom, Fla.1952, 60 So.2d 919; Brown v. Roach, Fla.1954, 67 So.2d 201; Weiss v. Kamen, Fla.1953, 67 So.2d 761; Schneider v. Saxon, Fla.1955, 82 So.2d 501; Dexter v. Green, Fla.1951, 55 So.2d 548.

Upon careful consideration of the record and briefs we find that the able trial judge-committed error in sustaining the motion to dismiss.

The judgment is therefore reversed for further proceedings in accordance with this opinion.

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


author: PER CURIAM.

text:
    Andrew J. McGOWN, Appellant, v. Walter E. HILL, Appellee.
    Supreme Court of Florida. Special Division A.
    March 7, 1956.
    James W. Woodson, Eau Gallie, Walter E. Smith and S. Victor Tipton, Orlando, for appellant.
    J. Thomas Gurney, Orlando, for appellee.
   PER CURIAM.

Except for the party plaintiff-appellant, this cause involves the same questions of law and fact as are involved in the case of Faircloth v. Hill and Allen, Fla., 85 So.2d 870. On the authority of that opinion the judgment appealed from is reversed for further proceedings in accordance therewith.

DREW, C. J., HOBSON and THORNAL, JJ., and MILLEDGE, Associate Justice, concur.


text:
    Denver F. DICKS, Appellant, v. COLONIAL FINANCE CORPORATION, a corporation, Appellee.
    Supreme Court of Florida. Division B.
    March 7, 1956.
    Williams & Futch, Starke, and T. E. Duncan, Gainesville, for appellant.
    Adair, Ulmer, Murchison, Kent & Ashby, Jacksonville, and B. R. Bumsed, Macclen-ny, for appellee.
   O’CONNELL, Justice.

This is an appeal from a final summary judgment entered for the appellee, plaintiff below, Colonial Finance Corporation, in a replevin action instituted against the appellant, defendant below, Denver Dicks.

The facts are not disputed. They are set forth in a memorandum decision, entered by the Circuit Court, and are as follows:

“Findings of Fact
“The plaintiff and defendant entered into a stipulation respecting the facts. The determinative ones are now set forth:
“One K. W. O’Haver of Tampa, Florida, on January 4, 1952, sold a 1951 Chrysler Automobile to Neill-Howard Motors of Miami, Florida, at Val-dosta, Georgia, at Tom Hewitt Auto Auction. A check was given by Neill-Howard in payment therefor, and the automobile was delivered into the possession of Neill-Howard Motors. Five days later, on January 9, 1952, at Miami, Florida, Neill-Howard Motors sold the automobile to one Joe Howard on a conditional sales contract, and delivered possession to him. That same day the plaintiff, in good faith, bought and received an assignment of the conditional sales contract from Neill-Howard.
“The sales contract provided, among other things, for the payment of the principal sum of Two Thousand Three Hundred Eighty-Three and 20/100 Dollars ($2,383.20), with interest at 6%, payable in monthly installments of One Hundred Thirty-Two and 40/100 Dollars ($132.40) on the 9th day of each month. It also contained the usual default provisions allowing the conditional vendor to repossess the automobile in case of default.
“On January 15, 1952, the plaintiff, Colonial Finance, filed with the Trail Auto Tag Agency of Miami, Florida, for forwarding to the Motor Vehicle Commissioner at Tallahassee, Florida, the proper motor vehicle forms reciting the sale of the automobile to Joe Howard, and the assignment of the conditional sales contract to Colonial Finance. It was requested that a title certificate be issued to Joe Howard showing a first lien in Colonial Finance for Two Thousand Three Hundred Eighty-Three and 20/100 ($2,-383.20).
“Meanwhile the check, which Neill-Howard had given to O’Haver in payment of the automobile, was dishonored but was re-deposited by O’Haver and was finally dishonored again after January 9, 1952.
“Subsequently the automobile, unknown to Colonial Finance, was returned to the possession of O’Haver.
“On January 25, 1952, O’Haver resold the automobile to Murray Motor Company of Jacksonville, Florida, through Tom Hewitt Auto Auction of Valdosta, Georgia. Three days later, on January 28, 1952, at Jacksonville, Florida, Murray Motor Company sold the automobile to the defendant, Denver F. Dicks. The record is void of any showing that either Murray Motors or the defendant made any inquiry about the automobile at the Office of Motor Vehicle Commissioner prior to or after this purchase.
“On January 29, 1952, the Tallahassee Office of Motor Vehicle Commissioner received the title application of Colonial Finance dated January 9, 1952, and on February 11, 1952, issued a certificate of title to Joe Howard showing a first lien in favor of Colo- . nial Finance.
“Later on February 15, 1952, the Office of the Motor Vehicle Commissioner at Tallahassee, Florida, received' application for issuance of an original' Florida title certificate in favor of Denver F. Dicks, with a lien in favor of Consumers’ Finance Company of Jacksonville, Florida, for One Thousand Nine Hundred' Forty-Seven and 46/100 Dollars ($1,947.46).
“Despite the earlier issuance of title-on the same automobile to Joe Howard, the Commissioner issued a title to the defendant on April 1, 1952, showing a first lien in favor of Consumers’ Finance Company. ' When the Motor Vehicle Commissioner ascertained he had issued two title- certificates for the same automobile, both were cancelled.
“On May 9,' 1952, and again on June 9, 1952, Joe Howard failed to make payments on the conditional sales contract, whereupon the plaintiff, after locating the automobile in the possession of the defendant, brought the present replevin action.”

In taking his appeal the appellant raises three questions, to wit:

1. Is appellee estopped from asserting its lien against appellant by reason of its conduct in filing its lien for record? (Appellant did not file its lien, in the office of the Motor Vehicle Commission in Tallahassee, within 10 days as required by Section 319.23(5), F.S.A.)

2. When- are liens considered filed under the terms of Chapter 319, F.S.A., i. e. when submitted to an agent of the Motor Vehicle Commissioner in the field, or when actually received by the Motor Vehicle Commissioner in Tallahassee?

3. Was there a duty on the part of appellant to make inquiry to each of the private tag agencies in the State of Florida as to liens, or could he rely on the records of the Motor Vehicle Commissioner in Tallahassee?

The first question, that of es-toppel, is disposed of on technical grounds. The appellant, in paragraph 6 of his answer, pleaded estoppel as a defense. On motion of appellee, this portion of the answer was stricken by the court and appellant, was allowed to plead further, which he did not-do. Estoppel is an affirmative defense which must be specially pleaded and is waived if not pleaded. MacGregor v. Hosack, Fla., 58 So.2d 513. 30 F.S.A. Florida Common Law Rules, Rule 9(d). Further, the action of the court in striking the pertinent portion of appellant’s answer is not assigned as error, and therefore is not properly before us.

The second question raised by appellant does not appear to be based on any ruling or decision of the court below, and in any event we think it is unnecessary to be decided by us in reaching a decision since we do not agree, as contended by appellant, that Section 319.15, F.S.A., is applicable, but construe the following portion of Section 319.27(2) to be controlling in factual situations such as found here.

“ * * * Provided, however, that the lien shown on the application for original certificate of title shall take priority over all liens or encumbrances filed subsequent to the date shown on such application. * * * ”

We have previously held that Section 319.27, F.S.A., controls the rights of the owners of chattel mortgages, conditional sales contracts, or similar instruments covering a motor vehicle. McQueen v. M & J Finance Corp., Fla., 59 So.2d 49; Livingston v. National Shawmut Bank of Boston, Fla., 62 So.2d 13; Vincent v. General Motors Acceptance Corporation, Fla., 75 So.2d 778.

The third question raised by appellant need not be considered, since it does not relate to any ruling or decision of the court below, was not essential to its conclusion, and need not be determined by this Court in reaching a decision.

The basic question to be determined is whether the lien acquired by Colonial Finance Corporation was valid as against the appellant, who claims to be a good faith purchaser, for value and without notice of appellee’s lien.

We feel that the court below decided this question properly. Appellant does not contend that the conditional sales contract, which was assigned to appellee, was not valid as against K. W. O’Haver, through whom appellant must trace his title. In the absence of some intervening principle of estoppel, no one can convey better title than he has, and conversely, in the absence of some such intervening right, one cannot claim a better title than he, in fact, receives. Glass v. Continental Guaranty Corporation, 81 Fla. 687, 88 So. 876, 25 A.L.R. 312; Commercial Credit Co. v. Neel, 91 Fla. 505, 107 So. 639. As above stated the question of estoppel is ■not before us. Therefore, we must conclude that appellee’s lien was a valid first lien, subject to its being recorded, according to the statute, before any other lien was recorded.

Appellee did file the first application for ■original certificate of title and its lien was properly shown thereon. Its lien therefore was prior in dignity to the rights of ap-pellee. § 319.27(2), supra.

The judgment appealed from is affirmed.

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


author: TERRELL, Justice.

text:
    UNION TRUST COMPANY, a corporation, as Administrator of the Estate of Ora A. Glunt, deceased, Appellant, v. Katherine L. GLUNT, Roland D. Glunt, Warren A. Glunt, Appellees.
    Supreme Court of Florida. Division A.
    March 7, 1956.
    Harris & Wing, St. Petersburg, fot appellant.
    No appearance for appellees.
   TERRELL, Justice.

Ora A. Glunt, resident of St. Petersburg', Florida, died intestate January 3, 1955, and left surviving his wife and two adult sons by a former marriage, residents of a foreign state. At the time of his death, Glunt was head of the family consisting of himself and wife; he was seized of an improved parcel of land, less than one-half acre within the corporate limits of St. Petersburg which was occupied and used as the family home. In addition to the home there was located to the rear of the land in question a small one-story cottage and a two-story garage apartment, both separate and detached from the residence and used for rental purposes.

Mrs. Glunt seasonably filed in the appropriate Probate Court her election to take her dower or the statutory share accorded her from her late husband’s estate. The question then arose as to limitation of the homestead. The Probate Court ordered the administrator, appellant here, to bring suit for declaratory decree and thereby determine the status of or that portion of the property so described that should be set aside as the homestead. At final hearing the chancellor found that the said lands described as Lot 14, Cherokee Subdivision, as recorded in Plat Book 1, Page 8, public records of Pinellas County, Florida, “including the rental units on the rear of said lot,” constituted the homestead. This appeal is from the final decree so entered.

The point for determination is whether the homestead embraced the entire lot as above described with the two outbuildings or should it be limited to the residence and that part of the realty reasonably adjacent to or associated with it.

Section 1, Article X of the State Constitution, F.S.A., pertinent to this case, provides that a “homestead to the extent 0f * * * half of .one acre within the limits of' any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, * * *. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; * *

In declaring the homestead to include the entire parcel of land with the cottage and two-story garage apartment, the chancellor relied on Cowdery v. Herring, 106 Fla. 567, 143 So. 433, 144 So. 348. Appellant contends that the point is ruled by McEwen v. Larson, 136 Fla. 1, 185 So. 866. In McEwen v. Larson the head of the family erected an apartment house for rental purposes on a severable part of the homestead, 72.8 feet of the lot on which it was located embracing the homestead. That part of the lot was accordingly abandoned as homestead. We have examined O’Neal v. Miller, 143 Fla. 171, 196 So. 478, 129 A.L.R. 295; Jordan v. Jordan, 100 Fla. 1586, 132 So. 466, and other cases cited by appellant but we do not think they rule the case at bar.

We think the chancellor correctly held that the case at bar was ruled by Cowdery v. Herring, supra. Since the homestead was within the limits of a city or town, the real point with which we are confronted is whether or not the improvements on the land in question amounted to more than the “residence and business house of the owner” ? What constitutes the “residence and business house” of the owner is not defined in the Constitution but in Cowdery v. Herring, supra [106 Fla. 567, 143 So. 435], we said that the intent of this language was to “preserve as exempt a reasonable portion of the homestead improvements, in addition to the owner’s actual residence, when it appears that the improvements concerned are being used as a means of making the owner’s livelihood.” One’s business, trade, craft or other means by which he made his living might have much to do with determining what constituted his “residence and business house”.

As heretofore pointed out, the improvements consisted of a small cottage and two-story garage apartment. It would not be unreasonable to hold that the two-story garage apartment was a part of the homestead. It is a matter of common knowledge that garage apartments are frequently placed adjacent to the home for rental as well as utility purposes. From the record, the one-story cottage was a one room affair, 12 feet wide and 26 feet long. Its only purpose or design was to produce a small rental or contribution “as a means of making the owner’s livelihood.” “Residence and business house of the owner” and employed “as a means of making the owner’s livelihood” are flexible clauses that should be construed reasonably to effectuate their purpose depending on the trade, craft or occupation one pursues to make a living.

It follows that the judgment appealed from must be and is hereby

Affirmed.

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


author: ROBERTS, Justice.

text:
    STATE of Florida, Appellant, v. Julis SIMMONS, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 3, 1956.
    Richard W. Ervin, Atty. Gen., John S. Lloyd, Asst. Atty. Gen., John D. Marsh, County Sol. and A. C. Dressier, Asst. County Sol., Miami, for appellant.
    Emmett W. Kehoe, Miami, for appellee.
   ROBERTS, Justice.

This is an appeal by the State from an adverse judgment in proceedings instituted by it under Section 849.12, Fla.Stat.19S3, F.S.A., for the forfeiture of some $545 seized from the defendant-appellee, Julis Simmons, and allegedly being -used in setting up,- conducting and operating a lottery. The cause was tried by the trial judge' without a jury on the issues made by Simmons’ answer, denying that the money was so used or that it'was lawfully seized. The trial judge found in his amended final judgment that “both the arrest and the search of the person and property of Julis Simmons was unlawful” and dismissed the complaint for forfeiture. This appeal by the State followed.

In support of the claim for forfeiture, the State’s witnesses, who were Deputy Sheriffs of Dade County, testified that they had Simmons under surveillance on information received from an unknown source that he was engaged in bolita activities. On the afternoon in question, they followed him for some time, saw him get out of his car and enter a house, then come back out in a hurry, and re-enter his car. They said that he then started off at a terrific rate of speed and, after going several blocks at the same high rate of speed and weaving in and out of traffic, made a sharp turn to the left without giving a turn signal, causing cars coming from the north to come to a “screeching halt” in order to avoid hitting his car and endangering pedestrians at the intersection. They followed him for another block or two and then stopped him and told him he was under arrest for reckless driving. Further testimony of one of the deputies is as follows:

“Q. Then you say you drove opposite to him and motioned for him to stop? A. That’s right. I got out of the car on the left side and went to his side of the car and as I told him he was under arrest for Reckless Driving, I observed on the front seat, some bolita tickets. Then I also looked in the car and observed a paper sack with some bolita pads and envelopes.
“Q. What was the condition of the paper bag that you could see bolita 6ads and envelopes? A. It was open at the top.
******
“Q. What did you do after you saw the slips and the bag? A. I asked Julis Simmons what they were. He stated they were bolita tickets. I asked what he was going to do with them and he said that he was in a hurry to get to 26th Street and 27th Avenue where he was going to meet a white man to turn the slips over to him. I asked him what was the man’s name and where was the man going to be. He said he was going to be on the corner. I asked him what kind of car was he going to be driving and he wouldn’t answer. I brought him to the Sheriff’s office and charged him with Reckless Driving and Possession of Bolita Tickets.
“Q. What did you do with the contents of this bag? A. Prior to bringing him down I searched the Defen-ant — we will call him the defendant. He was arrested. Person now known to me as Julis Simmons. And in his pocket, I found a payoff sheet, a bolita ticket and $334.89.
* *****
“Q. Now, when you arrested him and found the bag on the front seat and the slips which you say were open to the eye or view, tell the Court then what happened? A. I placed him under arrest for having bolita slips besides the Reckless Driving.
“Q. Then what happened? A. I brought him to the County Jail.”

The defendant did not take the stand in his own defense, and rebutted the foregoing testimony only by putting in evidence his affidavit (taken in opposition to a motion for summary judgment filed by the State), denying that he was driving in the reckless manner charged by the State. The State’s evidence relating to the possession by him of the bolita tickets and other items must, then, be deemed to have been admitted by him.

The only question here argued by the parties is whether the trial judge erred in refusing to admit into evidence the bolita tickets, money, and other items seized from the defendant’s car and his person. The defendant contends here that he was not guilty of reckless driving and that “stopping his car at the point of a gun and charging him with ‘reckless driving’ was merely a subterfuge and pretext to search. the appellee’s car without a search warrant which is clearly a violation of his constitutional rights against unreasonable search and seizure.”

It is true, as contended by defendant, that this court has held that an officer may not stop a person on a pretext of a traffic violation for the sole purpose of searching his person or car for evidence of ■another crime, and that a search and seizure made in such circumstances is “unreasonable” within the meaning and intent of Section 22 of the Declaration of Rights of the Florida Constitution, F.S.A. Graham v. State, Fla., 60 So.2d 186. It has also been held by this court that “the search [without a warrant] of the trunk of [the driver’s] car was not appropriately incident to making effective a lawful arrest for driving while intoxicated,” so that evidence found in the trunk could not be used in a subsequent prosecution of the driver for violation of the lottery laws. Courington v. State, Fla.1954, 74 So.2d 652, 653. But the circumstances of the instant case are different; and the test of whether a search was or was not reasonable must be determined upon “due consideration of the circumstances and manner under which the search is made.” Brown v. State, Fla., 46 So.2d 479, 481; Haile v. Gardner, 82 Fla. 355, 91 So. 376.

Here, the defendant was not only arrested for “reckless driving”; he was also arrested for possession of bolita tickets. The search of his person was made as an incident to his possession of the bolita tickets, and not as an incident to his arrest for a violation of our traffic laws. As noted above, the defendant admitted his possession of the bolita tickets, which were lying in full view on the seat of his car, before he was searched by the officers or the material seized; and, we think the officers would have been derelict in their duty if they had failed to arrest him and subsequently to seize the contraband. It then became their duty to search his person and “to seize anything found on his person or in his possession or control tending to show that the person is guilty of a violation of the law.” Brown v. State, Fla., 46 So.2d 479, 481. It is not clear from the record whether the defendant was formally charged by the officers with a violation of law arising out of his possession of the bolita tickets, before or after he was searched, but we think the search was valid in either case. Fie was already under arrest for violation of the traffic laws; and it would appear to be a purely technical matter, not affecting the validity of the search, to require the officers to charge him formally with something he had already admitted, before proceeding with a search of his person for further evidence of his violation of the lottery laws.

We think that, in all the circumstances here, the search of the defendant’s person and the seizure of the gambling material found in his car and on his person was “reasonable”, within the meaning and intent of Section 22, supra, and that the lower court erred in refusing to admit it into evidence.

Accordingly, the judgment appealed from should be and it is hereby reversed and the cause remanded for further proceedings.

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


text:
    Joseph H. GUERIN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division B.
    Jan. 4, 1956.
    Rehearing Denied Feb. 29, 1956.
   PER CURIAM.

Affirmed.


author: PER CURIAM,

text:
    Tom STILWELL, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    March 2, 1956.
   PER CURIAM,

Affirmed.


text:
    Theodore HARTRIDGE, Jr., Appellant, v. Patricia Ruth HARTRIDGE, Appellee.
    Supreme Court of Florida. Division A.
    March 2, 1956.
   PER CURIAM.

Affirmed.


text:
    Ora Lee WALKER, Appellant, v. Maude Stevens TULK, Appellee.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.
    Rehearing Denied March 15, 1956.
   PER CURIAM.

Affirmed.


author: PONDER, Justice.

text:
    229 La. 304
    In re Anthony AMORELLO and Mrs. Elizabeth L. Amorello Applying for Adoption of Ophelia Horton.
    No. 42476.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.
    J. Minos Simon, Lafayette, Robert W. Williams, Jr., Baton Rouge, for petitioners-appellants.
    Horace Pepper, Baton Rouge, for Department of Public Welfare.
    Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for respondent-appellee.
   PONDER, Justice.

The plaintiffs have appealed from a judgment denying their demand to revoke an interlocutory decree of adoption granted in favor of the defendants.

Ophelia Horton was born out of wedlock on June 28, 1950, to Ophelia Pourceau, who at the time was living with L. A. Horton. The mother of the child, Ophelia Pourceau, died a short time after her birth and her natural father, L. A. Horton, formally surrendered the child to the State Department of Public Welfare on July 17, 1950, by an act of surrender duly executed in accordance with Act 227 of 1948, LSA-R.S. 9:401 et seq. The Department of Welfare, through an authorized representative, accepted the surrender of the child on the same day. On April 10, 1951, the child being then ten months old, the Department of Welfare placed her in the home of the plaintiffs, Mr. and Mrs. Renard, under a foster home arrangement contract, wherein ■ it was agreed that the Renards were to be compensated monthly for the care of the child and that the Renards could not adopt the child. In June of 1953 a similar contract was entered into between the Welfare Department and the Renards wherein the monthly compensation was increased. Some time in 1953 the Renards expressed their desire to adopt the child to a case worker of the Department of Welfare. They again expressed this desire to a representative of the Welfare Department in 1954 when they were informed that, they were not eligible under the foster home agreement to adopt the child.- On June 14, 1954, the Department of Welfare secured a decree in the Fifteenth Judicial District Court, sitting as a Juvenile Court, for the Parish of Vermillion, declaring Ophelia Horton an abandoned child and decreeing the child available for adoption. The child was removed from the home of the Renards on December 6, 1954 and placed with the Amorellos for the purpose of adoption, the Amorellos having made formal application to- the Department of Welfare for .the adoption of a child some two years previously. On December 16, 1954, the Amorellos instituted proceedings in the Family Court for the Parish of East Baton Rouge for the adoption of' the child and after all of the requisites of law had Been satisfied, an interlocutory decree of adoption was entered in their favor on January 28, 1955.

The Renards instituted this suit in March, 1955, for the revocation of the interlocutory decree, for custody of the child and asked to be allowed to adopt her. The child had. resided in their home some three years and eight months at the time she was removed. It appears that the Renards became very much attached to the child, that the child regarded them as her father and mother and that they were apprehensive that the removal of the child would upset her and injure her mental and physical health.

The Amorellos interposed an exception of no cause or right of action based on the ground that the Renards have no legal right to the custody of the child. The Renards contend that they have a right to institute this action as persons interested in the child under the provisions of LSA-R.S. 9:431 and that it is for the best interest of the child that she be placed in their custody and’ that they be allowed to adopt her.

It appears from the evidence that both the Renards and the Amorellos are persons of moral fitness and above reproach. The Renards are not educated people and of extremely modest circumstances. The Amor-ellos are persons of financial means, living in a nice home in an ideal community. It appears that both families are greatly attached to the child.

Adoption is a creature of statute and only what the law makes it and must be established strictly in accordance with the statutory requirements. Green v. Paul, 212 La. 337, 31 So.2d 819 and the authorities cited therein. The statutory requirements have been complied with fully in this case. The act of surrender in favor of an accepting agency gives the irrevocable control and custody of the child to that agency with the privilege of placing it for adoption. Ball v. Campbell, 219 La. 1076, 55 So.2d 250.

The Renards contend that what is for the best interest of the child should govern in this case. They take the position that the child regards them as her mother and father and that it would be detrimental to her welfare if they were not permitted to regain her custody.

The Department of Welfare was delinquent in allowing the child to remain with the Renards for such a long period of time before placing it for adoption and had they expeditiously placed this child for adoption the present litigation might not have ensued. While the Department of Welfare is given great latitude in the placing of children for adoption it is nonetheless subject to judicial restraint in cases of abuse of its powers. While it appears from the evidence that the child was upset when it was taken from the Renards and placed with the Amorellos yet it has remained, because of protracted litigation, with the Amorellos for more than a year and they also are greatly attached to her. The thing that gives us the greatest concern is whether or not it would be to the best interest of the child to take her away from the Amor-ellos and return her to the Renards. Evidently the trial judge took into consideration these facts in arriving at his conclusion and we are not prepared to say that he is in ■error in his ruling. We are loathe to uproot this child again from her present surroundings since there is no means for us to know that she has not become adjusted to them. This child will be under observation of the Welfare Department and the Family Court up until the final decree of adoption and we feel confident that her welfare will be amply protected by them.

For the reasons assigned, the. judgment is affirmed at appellants’ cost.