text:
    TRUSTEES OF INTERNAL IMPROVEMENT FUND of the State of Florida, Appellants, v. E. N. CLAUGHTON et al., Appellees.
    Supreme Court of Florida. En Banc.
    March 28, 1956.

      Richard W. Ervin, Atty. Gen., Fred M. Burns, Asst. Atty. Gen., and Richard H. Hunt and Hunt, Salley & Roman, Miami, for appellants.
    Ward.& Ward, Miami, for appellees E. N. Claughton and wife.

      Lane, Muir, Wakefield, Frazier & Lane, Miami, for appellees A. Frank Katzentine and Ucola Katzentine, his wife, and Julio Sanchez and Willow Dean Sanchez, his wife.
    John E. Cicero and Olavi M. Hendrick-son, Miami, for appellee City of Miami.
    Fuller Warren, Miami Beach, amicus curiae.
   DREW, Chief Justice, and ROBERTS, Justice.

On June 20, 1916, the Trustees of the Internal Improvement Fund of the State of Florida sold a small island in Dade County and some of the submerged lands surrounding it to Ray G. Burlingame and his wife, Margaret R. Burlingame. On said date the deed conveying the same was prepared, drawn and executed by said Trustees. This property lay easterly from certain uplands owned at that time by Mary Brickell. Insisting that the title to the island and submerged lands was vested in her by virtue of her ownership of uplands along the shore of the mainland, Mary Brickell instituted a suit to enjoin the Trustees of the Internal Improvement Fund from delivering said deed to the Burlingames. In this litigation Mary Brickell attacked the validity of Chapter 6451, Acts of 1913 (now Sections 253.06-253.11, Florida Statutes 1951, F.S. A.), which vested in said Trustees title to certain islands, sand bars and banks located in the tidal waters of Dade and Palm Beach Counties under which Act the Trustees claimed the title to said lands and the right to sell the same to the Bur-lingames. The contentions of Mary Brick-ell were finally determined adversely to her by this Court in Brickell v. Trammell, 77 Fla. 544, 82 So. 221, on May 5, 1919. On July 7, 1919, the Trustees delivered the deed to the Burlingames, said deed reciting on its face that it had been prepared, drawn and executed June 20, 1916. The property conveyed was described in the deed as follows:

“That partially submerged tract or island lying in Biscayne Bay near the mouth of the Miami River, being more particularly described as follows:
“Commencing at a point which is-the intersection of the north line of Eighteenth (18th) Street and the west line of Brickell Avenue, City of Miami, Florida, thence easterly in projection of the said line of said Eighteenth (18th) Street five hundred and fifty-five (555) feet to the high water mark of Biscayne Bay; thence easterly continuing in projection of said line of said Eighteenth (18th) Street four hundred and twenty (420) feet; thence north six hundred (600) feet; thence east thirty (30) feet to a point in Biscayne Bay, this point being the point of beginning; thence east one hundred and sixty (160) feet; thence S. sixty-five (65) degrees E (two hundred and fifty (250) feet; thence S eighteen (18) degrees E.) five hundred and eighty-five (585) feet; thence west three hundred and fifty (350) feet; thence N. eighteen (18) degrees west seven hundred (700) feet more or less, to the point first above mentioned, being the point of beginning; containing five (5) acres, more or less, lying and being in the County of Dade, in the State of Florida, a plat being hereto attached.”

Following such description was this habendum clause:

“To Have And To Hold the above described property to the said Ray. G. Burlingame and Margaret R. Bur-lingame and their heirs and assigns, forever, together with all riparian privileges including the right to bulkhead and fill-in the said described lands as contemplated and provided under the Laws of this State.”

The following is the plat referred to in the foregoing deed:

Between the time the property was first sold to Mr. and Mrs. Burlingame in 1916 and the delivery of the deed to the Burlingames in July, 1919, the Legislature had enacted Chapter 8305, Sp.Acts of 1919, which Act became effective June 2, 1919. This Special Act purported to grant to the City of Miami, Florida, certain submerged lands in Biscayne Bay “for municipal' purposes only, all its right, title and interest, insofar as the same can be granted, * * * including water front and riparian rights, * * The area covered by the metes and bounds description in the foregoing Act encompassed the area described in the deed to Mr. and Mrs. Burlingame. The Act, however, provided:

“Nothing in this [Act] shall affect or be construed to apply to any Island or Islands within boundary lines above described.
“Sec. 2. That this grant shall not affect any other grant heretofore made to any individual or corporation and nothing herein shall be construed as depriving any riparian owner or proprietor of any rights under the laws of this State.”

In the early part of the year following the delivery of the deed to Mr. and Mrs. Burlingame a permit was issued by the War Department to bulkhead and fill in the entire area conveyed to the Burlin-games, which, with that portion of the island lying within the metes and bounds description, contained above 5 acres. No work was done under this permit and it expired on December 31, 1922. In April, 1923, a new permit was issued covering the same area as the original permit and some filling was done under that permit but the entire 5-acre area was not filled prior to the expiration date of that permit.

In April, 1925, E. J. Reed acquired title to the property described in the deed from the Trustees to the Burlingames and shortly thereafter secured a War Department permit to bulkhead and fill in, not only the original property but additional acreage surrounding it. Under this latter permit the original 5-acre parcel was filled in and bulkheaded. The actual fill did not extend beyond the original five-acre tract until in 1932, at which time bulkheads were built beyond said original area and a fill made behind such bulkhead. This fill-was completed in 1932 and resulted in the creation of an island of 20.7 acres, which had substantially within its borders the original five-acre area conveyed by the Trustees to the Burlingames. Graphically, the following situation then existed:

It will be observed from the above sketch that the said 20.7 acres lie within a triangle created by the three channels shown thereon.

With reference to the fill made in 1932 (the fill which resulted in the creation of the island as now existing and as outlined in the above drawing) the events leading up to and surrounding that action are pertinent and germane to the disposition of this cause. The Master who heard the evidence, related these facts (and they are not disputed in any material particular) as follows:

“In the latter part of 1929 and early 1930, during the height of the depression, the City of Miami became active in attempting to obtain a large appropriation from the United States for the deepening and widening of the Miami River. It was considered that this project would be of great benefit to the City as a much needed public improvement, to relieve the lack of employment and for other reasons mentioned in the resolutions of the City Commission adopted during that time.
“The 71st Congress made the appropriation ($800,000.00) on July 3, 1930, and authorized the Secretary of War to improve the Miami River with a view to securing a channel one hundred and fifty feet wide and fifteen feet deep for a distance from the mouth of three miles, thence one hundred and twenty-five feet wide and fifteen feet deep to a point four and one-eighth miles from the mouth, thence ninety feet wide and fifteen feet deep to a point five and one-half miles from the mouth; each section to have suitable side slopes, ‘Provided, that no expense shall be incurred by the United States for acquiring any lands needed for the purpose' of this improvement; Provided, further, that local interests shall provide all needed spoil disposal areas.’
“Thereupon the City, having guaranteed that all lands required for the right-of-way and spoil areas for the above mentioned project would be furnished without cost to the United States (Resolution 7164, Intervenor’s Exhibit #37) began casting about to acquire the necessary locations for the deposit of the spoil from the contemplated operations. Close-in areas were essential to eliminate the prohibitive expense of-hauling the spoil out to sea.' (Tr. 10 of 1-19-51.) At first the city selected as a spoil deposit area a large tract of submerged land claimed by the City under said Chapter 8305 [Sp.] Acts of 1919 lying opposite the City’s Bay front Park. (Resolution 7165, In-tervenor’s Exhibit 38.) Some spoil was deposited there but violent objections by a great many citizens and public bodies to such use of that area impelled the City to look elsewhere for a spoil site. (Tr. 10 of 1-19-51 and Resolution 7370, Intervenor’s Exhibit 40.)
“Burlingame Island by reason of its proximity to the dredging operations was a strategic site for spoil disposal.
“The City Commission prevailed on R. P. Clark the President of the Clark Dredging Company, which was part owner of the island to use the five acre island and the fifteen acres of bay bottom contiguous to the island as a site for the deposit of the spoil from the dredging operations. Application was made to the United States Engineers for permission to relocate the spoil area from the Bay Front Park site to Bur-lingame Island and its contiguous bay bottom. Consent to the change was granted by the United States Engineers on condition, however, that the substituted site be bulkheaded to prevent the spoil from running into the bay and blocking the channel to the Miami River entrance, it being anticipated and required that large quantities of material would be deposited on this location.
“It was then that the City petitioned R. P. Clark to cause to be bulkheaded the proposed spoil area. Clark consented and the City commission adopted Ordinance 7559, which among other things authorized the assignment to Clark of the outstanding City tax certificates on the island for the years 1929 and 1930 (together in the face amount of $3,690.00) and the payment to Clark of a sum of money equal to the amount of City taxes upon the island for 1931 and 1932,'amounting to-'-gether to $1,583.20.
“The bulkheading was done under contract with the M. F. Comer Bridge & Foundation Company. The witness Edward B. Comer, president of the company, could not recall at this late date whether the bulkheading contract was between his company and the Clark Dredging Company (part owner of the island) or R. P. Clark (the president of Clark Dredging Company) personally. Pie testified that the bulkheading was paid for by one or the other of them and at a contract price of around $4.00 per lineal foot. (Tr. 8 of 1-19-51.) The bulkhead encompassed the 20.7 acre island as it presently exists. The lineal footage of the bulkhead is 4,546.-28 feet. At $4.00 per lineal foot the cost of putting in this bulkhead must have amounted to the sum of $18,815.12 [sic]. The spoil from the dredging operations was deposited within this bulkhead and the 20.8 acre island was filled to its present height of five feet above mean low water. The new bulkhead constructed by the M. F. Comer Bridge & Foundation Company completely surrounds the original five-acre parcel (Tr. 18 of 1-19-51) and cuts it off entirely from access to the water for all practical purposes.”

In January, 1937, A. Frank Katzentine and Julio Sanchez acquired title to the 20.7-acre island aforesaid. In November, 1943, Katzentine and Sanchez conveyed said 20.7-acre tract to E. N. Claughton. The description in the deed to Sanchez and Katzentine and in their deed to Claughton was:

“All of the Island commonly known as Burlingame Island, lying in Biscayne Bay, near the mouth of the Miami River, more particularly described as follows: ”

thence followed a metes and bounds description of the 20.7 acres, concluding with the following language:

“Together With all riparian privileges, including the right to bulkhead and fill in said lands as contemplated and provided for under the laws of this State; ”

Parenthetically, the 20.7-acre island has been carried on the tax books of both the City of Miami and the County of Dade as an island of that size since it was filled in in 1932. The owners have paid to said political subdivisions nearly $20,000 in taxes up to the time of the trial below. In litigation between said city and the owners in 1941, the city admitted that the title to all of said 20.7 acres was vested in the then owners, and that was the effect of the final decree in that cause to enjoin the sale of the island for taxes. This litigation, and its effect from the standpoint of res ad judicata or estoppel by judgment, on the question now before us, will be considered at greater length in a subsequent portion of this opinion.

In 1947, after Claughton acquired title to the island, he instituted this suit against the City of Miami and the Trustees of the Internal Improvement Fund. The suit sought a decree quieting title in him in the 20.7-acre island and decreeing that as the owner of said island he had the right to bulkhead along the inside of the three channels surrounding the island and fill in the same behind said bulkheads, thus enabling him to enlarge said island from 20.7 acres to a little more than 70 acres. He averred he had the right to do this under the provisions of Chapter 8537, Acts of 1921, commonly known as the Butler Act. Chapter 271, Florida Statutes 1951, F.S.A.

In its answer the City of Miami claimed title to all the property, except the original 5-acre tract, including the bottom lands between the three channels, under the 1919 Act heretofore referred to. Later in the litigation, however, the City released all claims it had to the property involved in this suit to the Trustees, so the City is no longer interested in the litigation as a claimant to the property in question.

The Trustees answered and filed a cross-complaint. The Trustees contend that the island and the surrounding bottom lands conveyed originally to the Burlingames are the only lands owned by the plaintiffs as successors in title to the original grantee Burlingame and that the additional 15 acres of filled-in land and the title to the bottom lands lying inside the triangle formed by the three channels is vested in the Trustees. The Trustees further contend that Chapter 8305, Sp.Acts of 1919, and Chapter 11616, Acts of 1925, Ex.Sess. (the Acts granting certain bottom lands in Biscayne Bay to the City of Miami), are unconstitutional and void. The 1925 Act is not involved because it does not cover or affect the subject property. They further allege that under Chapter 6451, Acts of 1913, supra, now Sections 253.06 through 253.11, Florida Statutes 1951, F:S.A., and Chapter 7304, Acts of 1917, now Sections 253.12 through 253.15, Florida Statutes 1951, F.S. A. (to which we shall refer more fully hereafter), the Trustees acquired title to the property which they later conveyed to the Burlingames. They also contend that the right to fill in the tract conveyed to the Bur-lingames, to use the exact language of the answer, “was a special riparian right” and limited to the 5-acre tract; they say that no right existed in the Burlingames or their successors in title to fill beyond the boundaries of said tract and that the lands created by fill beyond said 5-acre tract as well as the bottom lands beyond- that and to the three channels are now -and have been since 1913 the property of the Trustees. They pray that the court quiet title in them (said Trustees) to all of said island beyond the boundaries of the original 5-acre tract and that the plaintiff Claughton be decreed to have no right, title or interest to said filled-in lands aforesaid or any of the low or submerged lands lying inside the triangle formed by the three channels, aforesaid. ■

More than three years after the complaint was filed and after the issues were made up by the original parties to the litigation, Katzentine and Sanchez and their spouses were allowed to intervene as former owners who warranted the title to said lands in their conveyance to Claughton, and filed their bill to quiet title to said property. The prayer of the complaint of Katzentine and Sanchez is, in part:

“2. That this Court find and decree that said deed from the Trustees of the Internal Improvement Fund of the State of Florida, to Ray G. Burlingame and Margaret R. Burlingame (Exhibit ‘C’ hereof)' vested title to the land therein described in said grantees together with all riparian privileges thereunto belonging or in anywise appertaining and that said riparian privileges included the right and easement to bulkhead and fill in said land and the submerged lands contiguous thereto out to the limits of said island as presently constituted and described in paragraph I of this bill of complaint and that upon the completion of said bulkheading and filling in the title to all of said island described in said paragraph I became vested in fee simple in the predecessors in title to the plaintiffs, A. Frank Kat-zentine and Julio Sanchez, * * *
“6. That this Court find and decree that the defendant Trustees of the In- • ternal Improvement Fund of the State of Florida are estopped to deny the superiority of the title of the plaintiffs A. Frank Katzentine and Julio Sanchez as of the date of the said deeds from Katzentine and Sanchez to Claughton (Exhibits “A” and “B” hereto attached) as to any part of the island as presently constituted and described in paragraph I of sáid bill of complaint.
“7. That this Court find and decree that neither the defendant Trustees of the Internal Improvement Fund of the State of Florida nor the defendant City ■of Miami had any right, title, interest, claim or demand of any nature whatsoever in or to the said island , as presently constituted and described in paragraph I of said bill of complaint, or any part thereof, at the time of the execution and delivery of the said warranty deeds from the plaintiffs Katzentine and Sanchez to the said E. N. Claugh-ton (Exhibits “A” and “B” hereto at-, tached). ,

The intervenors, it will be noted, pray for substantially the same reief as Claughton but eliminate from their prayer any reference to the low and submerged lands beyond the 20.7-acre filled in island.

On the issues thus made by the original parties and the intervenors, considerable evidence was taken and voluminous exhibits were filed. The Master, in his exhaustive report, concluded inter alia that Chapter 8305, Sp.Acts of 1919, and Chapter 11616, Acts of 1925, Ex.Sess., the Acts under which the City claimed title to the submerged lands, supra, (the 1925 Act as we have heretofore stated, is not involved) were valid but that the City of Miami was estopped from questioning the title to the 20.7 acres because of the facts heretofore set forth. He further concluded that the Riparian Rights Acts of 1856, amended by and referred to in the Butler Bill and now Chapter 271, Florida Statutes 1951, F.S.A., or similar statutes, do not apply to lands sold by the Trustees under the authority of Chapter 6451, Acts of 1913 (now Sections 253.06-253.11, Florida Statutes 1951, F.S.A.) or Chapter 7304, Acts of 1917 (now Sections 253.12-253.15, Florida Statutes 1951, F.S.A.) and that purchasers of such land are limited to the right to bulkhead and fill in the same as provided by Chapter 4370, Acts of 1895 (now Chapter 309, Florida Statutes 1951, F.S.A.).

The Master also held that Claughton had no right, title or interest, claim or demand in the submerged lands .inside the three channels but outside the filled in island of 20.7 acres, except the common-law riparian rights of, among others, ingress and egress, navigation, commerce and fishing, and such rights as might,be acquired by accretion, reliction, etc. He recommended the entry of an appropriate decree.

All the parties, except the City of Miami, which had quitclaimed its interest in said lands to the Trustees, filed exceptions to the Master’s report, all of which were overruled by the learned Chancellor. The decree entered by the Chancellor confirmed the findings of the Master in all respects but one. He found the Acts vesting title in Miami valid and constitutional; held the City and Trustees were estopped to question the title of Claughton or the intervenors to the land outside the original 5-acre grant but inside the face of The sea wall (bulkhead) consisting of 15 acres; quieted and confirmed .title of Claughton in Burlingame Island and dismissed the cross-complaint of the Trustees to the extent that it sought to quiet title to the land outside the original 5-acre grant.

With reference, however, to the Master’s conclusions that the plaintiff Claughton had not right, title, interest, claim or demand, etc., to the low submerged lands between Burlingame Island and the three channels aforesaid, the Chancellor held:

“8. With respect to the fifty-some odd acres of submerged land lying outside the said 20.7 acre Burlingame Island: There is not sufficient evidence in the record for the Court to determine the depths of water over said lands, or whether such lands slope gradually from the island to the government channels without intervening irregularities or obstructions or whether such lands should be classified as sand bars or shallow hanks or fall within any other of the classifications required to vest title to such lands in the Trustees of the Internal Improvement Fund under F.S. §§ 253.06 or 253.12 [F.S.A.]. . The Court is of the opinion that neither Chapter 8537, Acts of 1921 (‘Butler Bill’) nor the riparian Act of 1941 (F.S. | 271.01 [F.S.A.]) as carried forward, should be construed to permit owners of lands purchased from the Trustees of the Internal Improvement Fund pursuant to Chapter 6451, Acts of 1913 (F.S. §§ 253.06-253.11 [F.S.A.]) or Chapter 7304, Acts of 1917 (F.S. §§ 253.12-253.15 [F.S.A.]) to bulkhead, fill in and acquire title to lands abutting their holdings of the classifications mentioned in Chapters 6451 and 7305, and that the bulkheading and filling in rights of such purchasers are limited to the privileges granted by F.S. § 309.01 [F.S.A.]. However, the Court is also of the opinion that the benefits of the Butler Bill and F'.S. § 271.01 [F.S.A.] as extended, attach to lands purchased from the Trustees under F.S. § 253.06 or § 253.12 [F.S.A.] which abut lands, of ‘sovereignty land’ classification. The record of this case does not disclose whether the submerged lands surrounding Burlingame Island are of sovereignty land classification or are of the classification specified in Chapter 6451 Acts of 1913 or Chapter 7304 Acts of 1917, and until the nature of these submerged lands is made apparent the Court is unable to decide the issues raised by the Claughtons or the Trustees in their suit with respect to the title to such submerged lands.
“Accordingly:
“9. The Claughton bill as amended and the cross-complaints of the Trustees of the Internal Improvement Fund of the State of Florida in so far as the same seek to quiet the title to the lands1 lying outside the limits of the 20.7 acre Burlingame Island are dismissed without prejudice.”

From this decree both the Trustees and the intervenors appealed and the original plaintiff Claughton filed cross-assignments of error. To these alleged errors we now direct our attention.

We first consider the assertion by the Trustees in its answer that Chapter 8305, Sp. Acts of 1919, and Chapter 11616, Acts of 1925, Ex.Sess., (the acts granting certain bottom lands in Biscayne Bay to the City of Miami) are unconstitutional and void. While this position is assumed by the Trustees in its answer to the complaint in this cause, in its supplemental memorandum upon the second rehearing the Trustees argue that “ * * * the 1919 legislative grant to the City of Miami, being an unconditional and unrestricted grant of the State’s title left no field for operation of the 1921 Riparian Act or ‘Butler Bill’ wherein the State conditionally divested itself of its title in favor of riparian owners. As to the' submerged lands involved in the instant case the State had no title of which it could be divested, conditionally or otherwise, at the time of passage of the 1921 act.” It, therefore, appears that the Trustees have now abandoned the contention that the 1919 and 1925 acts are unconstitutional. Because of this and for the reason that our ultimate decision does not require us to pass upon the constitutionality of such acts, we refrain from doing so. Henderson v. Antonacci, Fla., 62 So.2d 5 and authorities cited there; Greene v. Alexander Film Co., Fla., 65 So.2d 53.

In Brickell v. Trammel, supra [77 Fla. 544, 82 So. 224], the origin of the small island lying partly within the 5 acres conveyed originally to the Burlingames is carefully traced and delineated. In that case it is recited, “In the digging of channel No. 2 a quantity of dirt was dug from the bottom of Biscayne and was thrown up on the east side of the said channel No. 2, and between said channels Nos. 1 and 2, forming a submerged tract of land which was gradually and imperceptibly added to by the action of the waters in Biscayne Bay and the Miami river, and still later,, about four years ago, during a certain dredging operation in and about the mouth of the Miami river and in said channel No. 2, more dirt was dug from the bottom of Biscayne Bay and was thrown upon the said submerged tract of land lying immediately east of said channel No. 2- until a part of said submerged island extended out of the water and was not covered by high tide, and since that time this island has been gradually and imperceptibly added to by the action of the waters of Biscayne Bay and the Miami river, until it is now an island at high tide of approximately one acre, not as much being exposed at high tide as is described in the particular description''above”. [The above matter is quoted from the original document of the opinion filed by this court; explaining minor deviations from other reports.] And so it is that this island which appears on the exhibit attached to the deed from the Trustees to the Burlingames was built up. from the bottom of Biscayne Bay, navigable tide waters in the State of Florida and,, therefore, constituted sovereignty lands the title to which became vested in the State of Florida in trust for its people when the State was admitted to the Union on an equal footing with the other sovereign states.

Durin'g the period when Florida was a territory, it was the policy of the Federal government to hold the title to lands under bodies of navigable waters and tide lands (lands covered and uncovered by the rise and fall of the tides) for the use of the public to inure to the State for the benefit of its people upon the formation of a state government. When Florida was admitted to the Union as a state, it became the owner by virtue of its sovereignty of all of such lands under navigable waters and tide lands within its territorial limits. Having acquired title to the land by virtue of its sovereignty and not by express grant or conveyance or patent, such lands became known and referred to as sovereignty lands. For a history of land grants and land titles in the State of Florida see Whitfield’s Notes, Division 2, pages 228 to 240, appearing in Volume 3, Helpful and Useful Matter, Florida Statutes, 1941.

With reference to these sovereignty lands, it was held, prior to the enactment of the Butler Bill and prior to the acts of the Legislature vesting the title thereto in the Trustees of the Internal Improvement Fund of the State, that “The trust with which these lands are held by the state is governmental, and cannot be wholly alienated. For the purpose of enhancing and improving the rights and interests of the whole people, the state may by appropriate means grant to individuals the title to limited portions of the lands, or give limited privileges therein, but not so as to divert them from their proper uses, or so as to relieve the state of the control and regulation of the uses afforded by the land and waters.” State ex rel. Ellis v. Gerbing, 56 Fla. 603, at page 612, 47 So. 353, at page 356, 22 L.R.A.,N.S., 337.

It is apparent from the record here that the island hereinabove referred to was not dealt with as such in the sale of the submerged lands by the Trustees to the Burlingames. This is obvious from the very fact that the tract of submerged lands conveyed to the Burlingames cut off the island at about its center. The .Trustees were selling and the Burlingames were buying a portion of the bottom of navigable tide waters. The provision in the deed granting “all riparian privileges including the right of bulkhead and fill in said described lands as contemplated and provided under the laws of this State” vested in the purchaser'the right to fill such submerged lands. The purchaser may not thereafter fill beyond the original lines without first obtaining the title thereto from the Trustees or the then owners of such submerged lands. We cannot ascribe to the Legislature, in the passage of either the Riparian Act of 1856 or the Butler Bill, the intention of authorizing one acquiring title to sovereignty lands from the Trustees to fill such lands beyond the boundaries conveyed without first acquiring the title to such additional lands created by such fill. The right to fill under the 1856 act and the Butler Bill attaches to what is often called uplands or lands other than sovereignty lands. See Holland v. Ft. Pierce Financing & Construction Co., 157 Fla. 649, 27 So.2d 76.

No authority need be cited for the proposition that a grant in derogation of sovereignty must be strictly construed in favor of the sovereign. And since the grant made by the Butler Bill, as construed by this Court,' appears to have gone far beyond the original intention of the 1856 Riparian Rights Act — which was limited to filling in and bulkheading as an aid to commerce and navigation only — it is even more important that the grant therein made should not be extended beyond its terms. Despite the language of the Butler Bill that the grant therein was made “subject to any inalienable trust under which the state holds all submerged lands and water privileges within its boundaries,” this Court knows, since everyone knows it, that the Butler Bill has operated to divest the State of its sovereign lands just as effectively as though a grant thereof without such limitation had been made to a riparian owher. And it would, in our opinion, do violence to the legislative intent to construe the Riparian Rights Act of 1856 and 1921 as applicable to the “islands, sand bars and shallow banks,” the title to which was vested by the Legislature in the Trustees for the purpose of sale, Sec. 253.06 et seq., Florida Statutes 1953, F.S.A.

In the first place, the grantees of such lands are not, in any true sense, “riparian proprietors” at all. The very nature of a grant of submerged land is such that it cannot be “actually bounded by, and extending to, high water mark on” the navigable stream, bay or harbor in which the submerged tract is located. As stated in Turner v. People’s Ferry Co., C.C., 21 F. 90, 92, 93:

* * * none of the premises occupied by the complainant were any part of the original shore; they were a part of the harbor of the city of New York, and far below even low-water mark. Riparian rights do not attach, as a matter of course, to a grant of such lands under tide-water. A right of wharfage in such cases, as an incorporeal hereditament, must be derived either from the express terms of the grant, [citations] or from the clear and manifest intent of the grant, as shown by the surrounding circumstances, such as prior use, or the declared intention of the grant [citations], In the absence of an express grant of wharfage, or of such manifest intention, the city or the state, as the case may be, may ‘make successive grants of its lands under water, each in front of the former, to different grantees, without any violation of the rights of either; and neither the first nor the last grantee will acquire any exclusive riparian privileges. None of such grantees are in any proper sense riparian owners at all; and riparian rights do not attach to such grants. Weber v. [Board of] Harbor Com’rs, 18 Wall. 57, 67 [21 L.Ed. 798].” (Emphasis is supplied.)

And there can be no difference in principle between a grant of such submerged land by the Trustees and a grant by them of a dredged-up island or a sand spit, which are ordinarily surrounded by water bottoms of the character we are here discussing.

It is our opinion, then, that the very nature of the “islands, sand bars and shallow banks”, the title to which is vested in the Trustees under the 1913 and 1917 Acts, Chapters 6451 and 7304, now Sections 253.06 et seq., Florida Statutes 1953, F.S.A., refutes any claim by the grantees of the Trustees that they are “riparian” proprietors included within the grant of riparian rights made by the 1856 and 1921 Riparian Rights Acts, supra; and that, even though such Acts may be held to apply to islands the meander of which were established by the U. S. Government Survey and which in 1856 were owned by “a citizen of the United States or by the United States for public purposes” and which in 1921 were owned by “the United States or by any person, natural or artificial, or by any municipality, county or governmental corporation”, they should not be construed to apply to “islands, sand bars and shallow banks” which are not of that character. It is suggested that this conclusion is not in accord with our holding in State ex rel. Buford v. City of Tampa, 88 Fla. 196, 102 So. 336, but we find this not to be so. In the Tampa case the islands involved were not and never had been owned by the Trustees of the Internal Improvement Fund by virtue of the so-called “Tidelands Acts”, Chapter 6451, Acts 1913, and Chapter 7304, Acts 1917 (now appearing as Sections 253.06-253.15, Florida Statutes 1953, F.S.A.). Reference to the original file in the City of Tampa case shows that both of these islands were originally parts of the surveyed lands of the United States and passed into the hands of private owners, from whom they were subsequently purchased by the City (under statutory authority) and Davis. They were tracts of land “owned by a citizen of the United States or by the United States for public purposes,” at the time of the enactment of the 1856 Riparian Rights Act, Chapter 791. The “island” with which we are here concerned is not of that character.

In the second place, it should be noted that there is no authority under the Butler Bill to fill in and bulkhead the submerged tidal lands granted to the Trustees under the Tidelands Acts. This is so because the Riparian Rights Act of 1921, c. 8537, the Butler Bill, expressly reserved such “islands, sand bars and shallow banks” from the terms of the grant therein made. This it did by providing in Section 9 thereof that:

“Nothing in this Act contained shall affect or repeal Sections 1056 [through] 1064, of the Revised General Statutes. [Chapter 6451, Acts 1913 and Chapter 7304, Acts 1917]”

This reservation has been expressly recognized by this Court. In Holland v. Ft. Pierce Financing & Construction Co., supra, 27 So.2d at page 82, we said:

“Appellants [the Trustees and the State] also apparently contend that the submerged land in front of appellee’s upland was of such character and formation as to come within the reservations of Chapter 8537, Acts 1921, and by Section 9 of said Act, the same being Sections 253.12 and 253.13, Florida Statutes 1941, F.S.A., and that the same constituted shallow banks and bars along the shore within the provisions of said sections.
“We do- not agree with appellants in this contention. The proof shows without contradiction that the submerged land in front of appellee’s property sloped gradually from zero' at high water mark to a depth of approximately six feet at the bulkhead, without intervening irregularities or obstructions. This character of submerg-ed land does not come within the classification of the cited sections and consequently was not within the reservar tion specified therein. On the contrary, it was of the very character intended by the Riparian Act to1 be qualifiedly vested in the upland owner.” (Emphasis is supplied.)

This reservation was in line with the previous reservation of the swamp and overflowed lands from the .grant made by the 1856 Riparian Rights Act, which reservation was again made in the Butler Bill. In other words, by the Riparian Rights Acts of 1856 and 1921, the Legislature, for a special and limited purpose, divested the state of the title to lands under the navigable waters therein specified which the state holds in its sovereign capacity in trust for the benefit of all the people. “Such lands are not held for purposes of sale or conversion into other values, or for reduction into several or individual ownership, but for the use of all the people of the state for purposes of navigation, commerce, fishing, and other useful purposes afforded by the waters thereon.” Headnote, State ex rel. Ellis v. Gerbing, supra. But it did not intend to part with the title to the swamp and overflowed lands (the title to which had been vested in the Trustees in the year 1855 by Chapter 610, which Act also authorized the sale thereof) and the tidal lands, the title to which it had vested in the Trustees for the very purpose of “sale or conversion into other values [and] for reduction into several or individual ownership.” And, by the same token, it did not intend that the riparian rights granted by the Butler Bill should apply to such lands.

It is true that the 1913 and 1917 Acts vesting title in the tidal lands in the Trustees specifically provided that “ * * * if it shall appear that the sale of such islands and submerged lands and their ownership by private persons would interfere with the rights granted to riparian owners by the laws of Florida, * * * it shall be the duty of the Trustees to withdraw the said lands from sale. * * * ” But since, by definition, the tidal lands which were the subject of the 1913 and 1917 grants, as originally enacted, were required to be “separated from the shore by a channel * * * not less than five feet deep at high tide,” Section 253.06, Florida Statutes, F.S.A., and since this Court in Brickell v. Trammell, supra, which case confirmed in the Trustees the title to the five-acre tract of land here involved, as against the claim of the riparian owner that title vested in her under the Riparian Rights Acts of 1856, — held that a five-foot channel marked the limit of the riparian rights granted by that Act, there would seem to be no field for operation of this particular provision, insofar as the statutory riparian rights granted by the Butler Bill are concerned; there could not possibly be an “interference” with such riparian rights, because no right existed. Cf. Brickell v. Trammell, supra.

Thus, the Legislature in enacting the 1913 and 1917 Acts, supra, must have intended only to preserve to riparian owners “The right of access to the property over the waters, the unobstructed view of the bay, and the enjoyment of the privileges of the waters incident to ownership of the bordering land * * *.” Thiesen v. Gulf F. & A. Ry. Co., 75 Fla. 28, at page 78, 78 So. 491, at page 507, L.R.A.1918E, 718. These are the common-law rights of a riparian owner which “ * * ' * would not, in many cases, be exchanged for the price of an inland lot in the same vicinity.” Ibid., and they are rights which the courts will protect. Compare Deering v. Martin, 95 Fla. 224, 247, 116 So. 54, in which it was held that the plaintiff stated a cause of action for interference with these rights by a proposed sale of submerged land allegedly owned and subject to sale by the Trustees under the provisions of the 1913 Act, supra.

We are cognizant of the provisions of the 1913 and 1917 Acts, which give to the Trustees’ grantees of tidal lands the right to “bulkhead and fill in same, as provided by § 309.01, without, however, being required to connect the same with the shore or with a permanent wharf,” Florida Statutes 1951, F.S.A., and which, it is. contended, gives to such grantees the right to bulkhead and fill in up to the edge of the three channels here in question. But Section 309.01 merely provides the manner in which filling in and bulkheading should be done; and since the right to fill in and bulkhead was limited to the provisions of Section 309.01, under the familiar rule of expressio unis exclusion est, this particular section cannot be construed as a grant of anything other than a “special riparian right” to fill in and bulkhead the lands actually granted by the Trustees under the authority of the 1913 and 1917 Acts, which “special riparian right” was clearly necessary in order to reclaim these lands and turn them into useful property. It did not operate to bring such lands within the terms of the 1856 and 1921 Riparian Rights Acts, for the reasons hereinabove stated.

We hold, then, that the Riparian Rights Acts of 1¿56 and 1921 were not applicable to and granted no rights to the grantees of sovereignty lands from the Trustees of the Internal Improvement Fund, so that Claughton’s predecessor in title had no right to fill in, and bulkhead anything except the 5-acre tract actually conveyed to him by the Trustees^

It is contended'by the appellants that applying the doctrine of estoppel against the Trustees or the City of Miami, as was done below, results in transferring vested rights held in trust for the public from the Trustees to the present owner of the original 5-acre tract; and that such result is clearly unjustified under the facts revealed by the record in this cause. We are wholly unable to agree with this contention. Our analysis, of the record in this case from the beginning of the Brickell suit to the present time leads us inevitably to a conclusion exactly opposed to the contention of appellants. The facts constituting the basis for the estoppel are set forth in great detail in this opinion and it would serve no useful purpose to again delineate them. We shall proceed to examine the question of the appropriateness of invoking the doctrine of equitable estoppel in the instant case and shall first direct our attention to the basic question of whether such doctrine may in any instance be invoked against the State or its subdivisions.

It is said in 19 Am.Jur., Estoppel, paragraph 166:

“ * * * an estoppel may arise against the state out of a transaction in which it acted in a governmental capacity if an estoppel is necessary to prevent loss to another and the perpetration of a fraud and if such estop-pel will not impair the exercise of the sovereign powers of the state.”

While the doctrine is not applied against the State or its subdivision as. freely as against an individual, there is no doubt that it may be invoked even against the exercise of governmental powers where it is necessary to prevent manifest injustice and wrongs to private individuals; provided that the restraint placed upon such governmental body to accomplish such purpose does not interfere with the exercise of governmental power. It is said for example, that, “A municipality is subject to the rules of estoppel in those cases where equity and justice require their application, and may be estopped under certain circumstances by its acts and conduct.” 19 Am.Jur., Estoppel, paragraph 168. This Court long ago recognized that estoppel may be invoked against the State. Lee v. Lang, 140 Fla. 782, 192 So. 490, 493. In the last cited case we quoted from State ex rel. Landis v. Sovereign Camp, Woodmen of the World, 131 Fla. 867, 180 So. 33, as follows:

“ ‘There has in times past existed some confusion in the law as to whether Or not the doctrine of estoppel could be raised against-'the state, but as to the facts shown here, there seems no doubt that it may be done.’

If any doubt at all remained that such doctririe could be invoked against the State or its subdivisions, that doubt was completely removed by the holding of this Court in Daniell v. Sherrill, Fla.1950, 48 So.2d 736. Later in Trustees of Internal Improvement Fund v. Bass, Fla.1953, 67 So.2d 433, we held that although the tax assessment against lands of the Trustees of the Internal Improvement Fund there involved was not authorized by law, the then owner had been in possession for more than 11 years under such deed issued by the State and “Under such a state of facts, even if his title is not good by adverse possession, the State is estopped to question it.” The authority cited for such conclusion was Daniell v. Sherrill, supra.

In Florida Livestock Board v. Gladden, Fla.1954, 76 So.2d 291, we again affirmed the principle that equitable estoppel may be invoked against the State when justified from the facts.

It is said in 19 Am.Jur., Estoppel, paragraph 34.

“Equitable estoppel or estoppel in pais is a term applied to a situation where, because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact. Any more exact or complete definition than this is difficult to formulate for the reason that an equitable estoppel rests largely on the facts and circumstances of the particular case, and consequently, any attempted definition usually amounts to •no more than a declaration of an estoppel under those facts and circumstances. The cases themselves must be looked to and applied by way of analogy rather than rule.”

In a footnote under that portion of his work dealing with the doctrine of equitable estoppel Dr. Pomeroy quotes at great length from the opinion of Perley, C. J. in the case of Horn v. Cole, 51 N.H. 287, 289, 12 Am. Rep. 111. The comments of Justice Perley so completely summarize our views of the doctrine as applied to the facts in this case that we, as did Dr. Pomeroy, quote from it at length:

“The ground on which a party is precluded from proving that his representations on which another has acted were false in, that to permit it would be contrary to equity and good conscience. * * *
******
“ * * * It thus appears that what, ■has been called an equitable estoppel, and sometimes with less propriety an-estoppel in pais, is properly and peculiarly a doctrine of equity, originally introduced there to prevent a party from taking a dishonest and unconscientious-advantage of his strict legal rights,— though now with us, like many other-doctrines of equity, habitually administered at law. * * *
“* * * Jt would have a tendency to mislead us in the present inquiry, as. there is reason to suspect that it has-sometimes misled others, if we should confound this doctrine of equity with the legal estoppel by matter in pais. The equitable estoppel and legal es-toppel agree indeed in this, that they both preclude from showing the truth in the individual case. The grounds, however, on which they do it are not only different, but directly opposite. The legal estoppel shuts out the truth, and also the equity and justice of the individual case, on account of the supposed paramount importance of rigorously enforcing a certain and unvarying maxim of the law. For reasons of general policy, a record is held to import incontrovertible verity, and for the same reason a party is not permitted to contradict his solemn admission by deed. And the same is equally true of legal estoppels by matter in pais. * * *
“ * * * Legal estoppels exclude evidence of the truth and the equity of the particular case to support a strict rule of law, on grounds of public policy.
“Equitable estoppels are admitted on the exactly opposite ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth. The facts upon which equitable estoppels depend are usually proved by oral evidence; and the evidence should doubtless be carefully scrutinized, and be full and satisfactory, before it should be admitted to estop the party from showing the truth, especially in cases affecting the title to land. But where the facts are clearly proved, the maxim that es-toppels are odious, — which was used in reference to legal estoppels, because they shut out the truth and justice of the case, — ought not to be applied to these equitable estoppels, as it has sometimes been, inadvertently as I think, from a supposed analogy with the legal estoppel by matter in pais, to which they have, in this respect, no resemblance whatever. * * *
“In this equitable estoppel, the party is forbidden to set up his legal title because he has so conducted himself that to do it would be contrary to equity and good conscience. As in other cases .of fraud and dishonesty, the circumstances out of which the question may arise are of infinite variety; and, unless courts of law are willing to abdicate the duty of administering the equitable doctrine effectually in the suppression of fraud and dishonesty, the application of it cannot be confined within the limit of any narrow technical definition, such as will relieve courts from looking, as in other cases depending on fraud and dishonesty, to the circumstances of each individual case.
* ' * - , * fc * *
•“*' * * the doctrine has not in equity been limited to cases where there was an actual intention to deceive. The cases are numerous where the' party who was estopped by his dec- - laration or his conduct to set up his legal title, was. igncirant of it at the time, and-of course could have had no actual intention to deceive by concealing his .title. - 'Yet, if the circumstances were such that he ought to have inform'ed himself, it has been held to be contrary to equity and good conscience to set up his title, though he was in fact ignorant of it when he made the representation. * * * Nor is it necessary in equity that the intention should be to deceive any particular individual or individuals. If the representations are such, and made in such circumstances, that all persons interested in the subject have the right to rely on them as true, their truth cannot be denied by the party that has made them against any one who has trusted to them and acted on them.”

Also Pomeroy Equity Jurisprudence, Sth Edition, paragraphs 801 to 821, as applied in, among others, the following decisions of this Court: Coogler v. Rogers, 25 Fla. 853, 7 So. 391, 394; Hagan v. Ellis, 39 Fla. 463, 22 So. 727; Coram v. Palmer, 63 Fla. 116, 58 So. 721; Watkins v. Emmerson, 88 Fla. 86, 102 So. 10.

The doctrine of equitable estoppel was developed for the purpose of preventing such injustices as would inevitably result were we to agree with the contentions of the appellants concerning that portion of Burlingame Island lying outside the boundaries of the original 5-acre tract. Through all the years, the State and the City of Miami, the United States government acting through its War Department, and the various owners of Burlingame Island, have dealt with each other in the plain assumption that neither the State nor the City had any title whatever to, or right in, that portion of Burlingame Island constituting the present 20.7 acres. The application of the doctrine of equitable estoppel is so plainly indicated in this case that we do not find it necessary to pursue the question of whether the actions of the City in connection with the litigation over taxes and the consequent judgment in that case hereinbefore discussed amounts to res ad-judicata, or estoppel by judgment. If it doesn't, such litigation and its results is evidence of most persuasive character to support the application of the doctrine of equitable estoppel. It is to be here observed that so far as the doctrine is concerned, it is equally applicable to both the City of Miami and the Trustees of the Internal Improvement Fund.

And so we hold that the application of the doctrine of equitable estoppel prevents the Trustees of the Internal Improvement Fund and the City of Miami from asserting their title to any of what now constitutes Bur-lingame Island as described herein as against the title of the appellees. Indeed, we think that in any case where, as here, the grantees from the Trustees of sovereignty lands have heretofore in good faith and with a bona fide belief of their right to do so under the law, expended money in enlarging, improving and developing their grants and the Trustees and the public have over a long period of time, as here, acquiesced in the ownership by the citizen of the filled-in tract not actually included in the grant, they cannot now be heard to question the ownership of the land as enlarged and developed. Compare Florida Livestock Board v. Gladden, supra.

All former opinions in this case are hereby withdrawn and receded from and shall not be published in the official reports.

Affirmed in part and reversed in part.

TERRELL, THOMAS, HOBSON, THORNAL and O’CONNELL, JJ., concur.


source: Caselaw Access Project

author: TERRELL, Justice. THORNAL, Justice

license: Public Domain

text:
    Randolph P. MYERS, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and W. R. Davis, Appellees. Randolph P. MYERS, as Administrator of the Estate of Susan A. Myers, deceased, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and W. R. Davis, Appellees. Harold B. BENDER, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and W. R. Davis, Appellees.
    Supreme Court of Florida. En Banc.
    April 11, 1956.

      Wm. McHardy Berson of Sanders, McEwan & Berson, Orlando, for appellants.
    LeRoy B. Giles, Edward K. Goethe and David W.'Hedrick, Orlando, for appellees.
   TERRELL, Justice.

These cases were the consummation of a railroad crossing accident within the corporate limits of Winter Park, Florida. Mársha C. Bender ■ and Susan A. Myers, seniors in Edgewater -High School, Orlando, were traveling in -a'Jeepster convertible sedan over Minnesota Avenue, their objective to visit-, friends at Winter Park High School, about four miles distant, during the noon recess. At the intersection of Minnesota Avenue and the Atlantic Coast Line Railroad, they collided with the Champion, one of the fast passenger trains of the railroad. The Jeepster was demolished and both -girls were rendered unconscious; Susan A. Myers died in a few ■hours without regaining consciousness and Marsha C. Bender regained consciousness after several hours but received severe injuries.

Randolph P. Myers, father of Susan A. Myers, brought suit against Atlantic Coast Line Railroad Company and W. R. Davis, the engineer, for the wrongful death of his daughter and recovered a judgment for $47,500. He brought, a second suit as administrator of the estate of Susan A. Myers and recovered- a judgment for $5,300 against the Atlantic Coast Line Railroad Company, being the present value - of her estate, had she lived her normal life expectancy of fifty years. Harold B. Bender brought suit against, Atlantic Coast Line Railroad Company, and W. R. Davis to recover damages for the value of his Jeep-ster, including doctors, hospital and other bills incurred by bis daughter, Marsha" C. Bender, as result of the accident and recovered a judgment of $2,000.

The three cases were tried together toy order of the court and separate verdicts were entered in each case. At the conclusion of the trial, the court granted motion on the part of defendants for a new trial in each case pursuant to sec. 59.07(4), Florida Statutes, F.S.A., his order stating:

“The motion for new trial is herein granted on the 'ground that the verdict for the plaintiff is contrary to the manifest weight of the evidence. The court is of the view that the statutory presumption of negligence of the defendant has been overcome by defendants’ evidence, and the burden of showing negligence proximately contributing to the collision must rest on a preponderance of the evidence. The only evidence of negligence of defendants presenting a jury question concerns the conflict in the evidence respecting giving of appropriate warning of the approach of defendants’ train. The evidence on this question, while legally sufficient to present a jury question, so preponderates in defendants’ favor that the court is of the view that the manifest weight of the evidence in this cause establishes the negligence of the driver of the vehicle involved as the sole proximate cause of the collision, consequently, a verdict for the plaintiff is not approved by the Court and a retrial is ordered. It'is the Court’s view that this case is controlled by Covington v. Seaboard A. L. Ry. Co. [99 Fla. 1102], 128 So. 426. Being of this view, no other grounds assigned in motion for new trial are considered.”

These appeals are from the orders granting new trial in each case. -Appellees filed cross-assignments of error in each case which were identical except that cross-assignment No. 9 was included only in the two Myers cases and not in the Harold B. Bender case. By stipulation of counsel and order of the court, a single transcript has been filed for all cases. Since it is agreed that the questions in each case are identical, a single brief for all cases has been filed. We approve this practice.

Appellants state their first question ■ as follows:

“Where trial court, in order granting a new trial, finds that there is ‘evidence of negligence of the defendants presenting a jury question’ concerning ‘the conflict in the evidence respecting giving of appropriate warning of approach of defendant’s train,’ and that the evidence on this question is ‘legally sufficient to present a jury question,’ but that it so preponderates in defendant’s favor that the court is of the view that ‘the manifest weight of the evidence — establishes the negligence of the driver of the vehicle as the sole proximate’ cause of the collision,’ and where there was no finding that the jury was misled, motivated by prejudice, passion or any other improper cause, and no finding that the verdict was contrary to the probative force of the evidence or the justice of the cause, may the trial court grant a new trial?”

The orders denying motion for directed verdict and granting a new trial in each case axe the same as the order quoted above. An examination of the first question shows that1 appellants challenge that part of the order of reversal reading, “the verdict for the plaintiff is contrary to the manifest weight of the evidence. The only evidence of negligence of the defendant presenting a jury question concerns the conflict in the 'evidence respecting the giving of appropriate warning of the approach of defendant’s train. The evidence on this question so preponderates in defendant’s favor that the court is of the' view that the manifest weight of the evidence in this case establishes the negligence of the driver of the vehicle as the sole proximate cause of the collision, consequently -a verdict for the plaintiff is not approved toy the court and a retrial is ordered.”

Appellants contend that the quoted part of the order granting a, new trial should be reversed because in finding that the “verdict was contrary to the manifest weight of the evidence,” said order should have further found that the “jury was misled, motivated by prejudice, passion or any other improper cause,” or some equivalent finding. The statute, sec. 59.07(4), Florida Statutes, F.S.A., provides in substance that in every case where motion for new trial is granted, the trial court shall indicate in his order the ground on which the new trial was granted. See also Common Law Rule 39(d), now appearing as Rule 2.6(d) of the 1954 Florida Rules of Civil Procedure. No doubt the purist could have clothed the order in words more nearly approaching the Queen’s English, but unfortunately they (the purists) do not frequent the bench or bar so we are impelled to say there is no merit to the contention. When the trial judge finds that the verdict is contrary to the manifest weight of the evidence or words of similar import, it becomes his duty to grant a new trial. Tampa Waterworks v. Mugge, 60 Fla. 263, 53 So. 943; Aberson v. Atlantic Coast Line R. Co., 68 Fla. 196, 67 So. 44; Richbourg v. Hilton, Fla., 56 So.2d 539; Garrison v. Florida Power & Light Co., Fla., 65 So.2d 2; Schneider v. Cohan, Fla., 59 So.2d 644; Farrell v. Solary, 43 Fla. 124, 31 So. 283; Clary v. Isom, 55 Fla. 384, 45 So. 994, and many others.

These and many other cases commit this court to the doctrine that where the trial court grants a new trial on the ground that the verdict is contrary to the manifest weight of the evidence, his decision will not be overthrown absent a clear showing of abuse of discretion. The evidence in this case amply supports the court’s finding that the sole proximate cause of the accident was the negligence of the driver. It is shown that the train approached the crossing where the accident took place from the south going 43 miles per hour while the Jeepster approached from the west traveling 23 to 25 miles per hour. The driver had recently been li-rensed to drive and at the time was driving with a silk scarf over her head and tied under her chin. The time was 12:47 p. m., February 3, 1953. 'Susan A. Myers was seated to the right of the driver with her back to the right door of the Jeepster and was facing .the driver opposite the direction the .train was. approaching and in the driver’s line of vision to the approaching train. • Both girls were familiar with the crossing and had passed over it frequently in the days preceding the accident. While there were obstructions distant from the crossing, the; last 115 feet before reaching it were clear and open and either girl could have seen the train if.she had looked, but they drove straight ahead into its path without changing speed or looking to the right or left, despite the fact that the manifest weight of the evidence shows that the 'bell was ringing and the diesel horn sounded constantly the last 744 feet before the point of impact. The fireman saw the Jeepster when it was in 40 feet of the crossing and deeming that it was not going to stop immediately signalled the engineer who applied' the emergency brakes at once but too late to avoid the collision though the brakes were in good condition and functioned properly. At least six witnesses saw the tragedy, four of whom were not employed by defendant. The gist of their testimony -was ’ that Susan A. Myers and Marsha C. Bender disregarded the repeated sounding of the diesel horn, the ringing of the bell and drove headlong in front of the engine without reducing speed, looking or listening for its approach. There was the negative testimony of Mrs. Gandee who was seated in her bedroom 333 feet east of the crossing near the north window fronting west toward the track. The windows and doors were closed and the radio was on. The net result of her testimony on cross was that the train may have blown but she did not hear it.

Appellants place much emphasis on the testimony of Mrs. Gandee. In their third question they also contend that the gravest error committed by the trial court was in its holding that the speed of a train at a city crossing could not be negligence. We do not so interpret the finding of the trial court. We thinlc he necessarily found that the agents of the railroad company exercised reasonable care in handling the train. It is true that no one was standing at the crossing to warn motorists of the approach of the train but there was a “cross buck sign” to warn every one to be careful and it was in plain view. The crossing was not in the congested part of the city but was in the suburbs where the slightest caution would have averted the accident. The cases generally impose this duty on the motorist. The record reflects ample support for the trial court’s finding.

Inspection of the record discloses that this question comprehends other points raised in the case, including the legal sufficiency of controverted evidence. In many aspects this case is not materially different from McAllister v. Tucker and Seaboard Airline Railroad Co., Fla., - So.2d -. In that case we cited and discussed many cases which we think foreclose most of the points raised in this case. We do not repeat them here but content ourselves with a discussion of the points of difference in the two cases. What took place at the crossing and immediately approaching it controls the disposition of both cases. Everything else discussed amounts to little more than prologue.

After all is said, it can not be escaped that the sole proximate cause of the accident was driving onto the tracks in front of the oncoming train without looking, listening or exercising the slightest safety precaution. The speed of the train did not relieve the duty to look for it. Motorists in this case were familiar with the crossing; warnings of it only put them on notice of its presence. It then became their duty to look and guard their safety. The manifest weight of the evidence establishes negligence of the driver, so the judgment is affirmed.

Affirmed.

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

DICKINSON, Associate Justice, concurs in judgment of affirmance.

THORNAL, J., dissents.

ROBERTS, J., not participating.

THORNAL, Justice

(dissenting).

The order granting the new trial conceded that there was evidence of negligence presenting a jury question and at the same time renders a judicial finding that negligence of the driver was established as the sole proximate cause. I am of the view that under the comparative negligence rule the case was properly one for the jury which by their verdict disposed of the matter. I, therefore, respectfully dissent.


author: ROBERTS, Justice. THOMAS, Justice

text:
    Henry Junior OGBURN and Taylor Ogburn, Appellants, v. Florence P. MURRAY and her husband, Wilson Albert Murray, Appellees. Henry Junior OGBURN and Taylor Ogburn, Appellants, v. Ida SINGER, Appellee.
    Supreme Court of Florida. En Banc.
    April 11, 1956.

      Cooper, Cooper & Killian, Tampa, for appellants.
    J. B. Patterson and Morris C. Tucker, Fort Lauderdale, and Mabry, Reaves, Carlton, Fields & Ward, Tampa, for ap-pellees.
   ROBERTS, Justice.

We here review verdicts and judgments in favor of three plaintiffs in actions' for damages brought by them against the- defendants, appellants here, because of the alleged negligence of the defendant, Henry Junior Ogburn. The suits arose out of the same accident, were tried together in the lower court, and have been consolidated on this appeal. None of the errors assigned here for reversal relates to the liability of the defendants for the negligent operation of the truck by Henry Junior. The defendants complain only of the sufficiency of the evidence as to damages to support the, awards made by the jury, and errors of the court relating to and allegedly affecting the amounts awarded to the plaintiffs, Florence P. Murray and her husband, Wilson Albert Murray.

The jury’s verdicts were as follows: Wilson Albert Murray, $8,000; Florence P. Murray, $4,000; and Ida Singer, $1,000. We have carefully examined the record as to the damages awarded the plaintiffs, Florence P. Murray and Ida Singer, and have concluded that they were not excessive. Nor do we find reversible error as to the allegedly improper remarks of counsel for the plaintiff, Florence P. Murray, in discussing the evidence relating to the injuries suffered by her. Accordingly, the judgments in favor of the plaintiffs, Florence P. Murray and Ida Singer, are affirmed.

As to Wilson Albert Murray, in addition to the general question of .the sufficiency of the evidence to support the award, the defendants argue that the lower court erred in refusing to grant their motion for new trial as to this plaintiff on the ground that Wilson gave false and perjured testimony during the trial as to his previous earnings. This contention must be sustained.

At the trial, Wilson testified that before the accident he had done body and fender work, requiring lifting, and had earned on the average from $125 to $150' per week; but that after the accident he had been forced to do work in which lifting was not required, and had earned only $68 per week for three or four weeks and then $60 per week, which were his wages at the time of trial. He was employed by Sawyer Motor Company as a body and fender man before the accident, and went to work for Abernathy Paint & Body Works as a painter or foreman after the accident, for whom he.was still Working at the time of trial. In support of the motion for new trial, the defendants offered the affidavits of officers of the two employers above mentioned, showing that Sawyer had paid Wilson an average of $56.69 per week, and that Abernathy had employed him at a flat salary of $80 per week and was still paying him that amount. The motion for new trial was denied, without comment, by the trial judge.

It is the rule in this state that a new trial should be granted on the ground of newly discovered evidence if “supported by a showing that neither the plaintiff nor his attorneys were at fault in securing the evidence, and that it was material to the issue and not cumulative, and was of such character as that if believed by the jury would have necessitated a different result * * *.'' Clair v. Meriwether, 1937, 127 Fla. 841, 174 So. 591, 594. We agree with counsel for defendants that it could not have been anticipated that Wilson would give false testimony, as to his earnings, even though it might have been expected that counsel for Wilson would attempt to prove loss of past and future wages as one element of the damages sought in the action under the allegation of Wilson’s complaint that he had “been permanently disabled from attending to his usual duties as an automobile repairman and painter. * * * ” But even if defendants and their counsel were technically at fault in failing to have this evidence available at the trial, this court has said that the rules as to newly discovered evidence “are not Inflexible and must sometimes bend in order to meet the ends of justice”, Gaither v. Anderson, 103 Fla. 1190, 135 So. 840, 139 So. 587, 588; and we think of no more appropriate situation for “bending” the rules than the one presented here, where the only reasonable and logical inference is that Wilson deliberately falsified his earnings. Other courts have so held in analogous situations. Cf. Candelore v. Glauser, 291 Pa. 582, 140 A. 525; Harris v. Wall, 144 Va. 774, 130 S.E. 899.

The false statements were material to the issue of damages, in view of the emphasis placed upon “lost income” by Wilson’s counsel in his closing argument to the jury. After stating that Wilson was entitled to -recover about $800 for his and his wife’s medical bills and damages for past and future pain and suffering in the total amount of $1,965, counsel made the following remarks:

“Now, the main item, gentlemen, is lost income, and this I want you to please get — hold this against me if it is wrong. This man was earning from $125 to $150 a week doing the job he has done for 30 years. No man would change from that job to one earning sixty a week as foreman doing paper work if he could help it. He can’t even get his car repaired, he can’t pay all his bills. If he was fired from that $125 a week job or left for any other reason than his back trouble, as the doctor said, there would have been testimony from somebody who knew it in his old job or at his new one. And you and I both know it. And the fact that a man took such a decrease in work had to be because of his back, that he couldn’t lift as required on his old job.
“Now, the Judge will tell you that he is entitled to that money he lost, and how much is it? Since the accident happened he has already lost in wages $6,500. Now, he wouldn’t lose that if he didn’t have to or if he could lift those things. No man would do that. Now, he is entitled to lost income in the future. * * * There again we can’t come back. He has still got the $60 a week job right on. Let’s say he could work until he is sixty, that is six more years. He is going- to lose six years income. He can’t come back here in court on it. You’ve got to do something about it today. That lost income for the next six years come to nineteen thousand. That’s what he is going to lose, even though you foraget about the case by 2 o’clock this afternoon. He is also entitled to lost services and consortium of his wife. Gentlemen, I don’t know what that is worth. What is it worth to have a wife who is happy and contented and then fussy and always in pain ? * * *. I don’t know what he is entitled to that’s why I am going to leave it blank. The Court will tell you you have to reduce all these figures to the present income, and if you reduce these it will come to about $20,000. * * * ”

In the light of this closing argument, it is unrealistic to believe (as counsel for Wilson would have us do) that the jury’s verdict would have been the same if the true facts as to his wages before and after the accident had been presented. Townsend v. Gibson, Fla.1953, 67 So.2d 225, is not controlling here because the facts are different. There, the plaintiff suffered a serious brain injury as a result of the accident, which was shown to have disabled him 50 percent as to his ability to “sense things and express himself and things like that” and 100 percent as to his ability “to carry on his business and make a decent living compared with what he was able to do before * * Here, Wilson suffered a sprained or strained neck in the accident, but lost no time from work; and there was no clear or conclusive medical testimony that the ac-, cident had anything to do with aggravating pre-existing disabilities which, at the time of trial, amounted to a 5 percent permanent disability of the body as a whole.

The defendants’ motion for new trial as to Wilson was sufficient, within the rule of Clair v. Meriwether, supra, 174 So. 591, to support a new trial on the question of the damages to which this plaintiff was entitled, and it should have been granted by the trial judge.

Accordingly, the verdict and judgment in favor of the plaintiff, Wilson Albert Murray, is reversed insofar as the amount of damages is concerned, and the cause remanded for a new trial on the question of damages.

Affirmed in part and reversed in part and remanded for new trial on the question of damages sustained by the plaintiff, Wilson Albert Murray.

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

THOMAS, J., dissents.

THOMAS, Justice

(dissenting).

I think the judgments should be affirmed because there was not sufficient showing either of due diligence or the probability that a new trial would produce a different result.


author: THORNAL, Justice.

text:
    A. Max BREWER and O. L. Burton, individually and as State Representatives from Brevard County, Appellants, v. R. A. GRAY, as Secretary of State, Richard W. Ervin, as Attorney General, Charles D. Stewart, Bernie C. Papy, W. H. Carmine, Jr., and Walter O. Shepard, as State Representatives, Appellees.
    Supreme Court of Florida. En Banc.
    April 11, 1956.

      Butt & Abridge, Cocoa, and Crofton, Wilson & Brewer, Titusville, for appellants.
    Richard W. Ervin, Atty. Gen., and Howard S. Bailey, Asst. Atty. Gen., for appellees.
   THORNAL, Justice.

Appellants Brewer and Burton who were plaintiffs below appeal from a decree of the Chancellor sustaining the constitutionality of 'Chapter 31378, Laws of Florida, Extraordinary Session 1955, which reapportioned membership of the House of Representatives of the Florida Legislature.

The question before us on appeal and which was ruled on by the Chancellor below is whether Chapter 31378, supra, which reapportioned the membership of the House of Representatives of the State Legislature is unconstitutional or at least inoperative-until the Legislature reapportions the State Senate in accordance with the requirements of Section 3, Article VII, of the Florida Constitution, F.S.A. , No Act has yet been passed by the 1955 Legislature reapportioning the State Senate.

By Chapter 31378, supra, the ninety-five members of the House of Representatives werg apportioned among the several counties in accordance with the mathematical formula governing the House as set. forth in Section 3, Article VII, Florida Constitution. The ultimate effect of the Act so far as these parties are concerned was to reduce representation in the House, from two members each to one member each for Brevard and Lee Counties and simultaneously to increase representation in the House from one member each to two members each for Monroe and Okaloosa Counties. The apportionment was stated to be based on the 1950 Federal Census. Appellants Brewer and Burton presently represent Brevard County in the House of Representatives. Appellees Carmine and Shepard represent Lee County. Appellee Stewart represents Okaloosa County and appellee Papy represents Monroe.

In holding the Act under attack to he constitutional and operative in accordance with its provisions, the Chancellor stated:

“The existence of two duties (a) to reapportion the Senate and (b) to reapportion the House of Representatives, does not make the performance of one duty ineffectual until the other has been accomplished unless it is' clear from the Constitution that this was the intent of the people. I cannot find that intent clear in the Constitution.”

We hold that he ruled correctly and his decree must, therefore, he affirmed.

It is appropriate to consider certain basic principles that guide us to our conclusion. We have separated Article VII, Section 3, of the Florida Constitution into its four component sentences for convenience of analysis, and quote the same as fol-' lows:

“The Legislature that shall meet in regular session A.D. 192S, ■ and those that shall meet every ten years thereafter, shall apportion the Representation in the Senate, and shall provide for thi.rty-eight (38) Senatorial Districts, such Districts to be as nearly equal in population as practicable, but no county shall be divided in making such apportionment, and each District shall have one Senator; and, at the same time, the Legislature shall also apportion the Representation in the House of Representatives, and shall allow three (3) Representatives to each of the five most populous counties, and two (2) Representatives to each of the next eighteen more populous counties, and one Representative to each qf the remaining counties of the State at the time of such apportionment.
“Should the Legislature fail to apportion the Representation in the Senate atnd in the House of Representatives, at any regular session of the Legislature at any of the times herein designated, it shall be the duty of the Legislature or Legislatures succeeding such regular session of the Legislature, either in special or regular session, to apportion the Representation in the Senate and in the House of Representatives as herein provided. The preceding regular Federal or regular State Census, which ever shall have been taken nearest any apportionment of Representatives in the Senate and in the House of Representatives, shall control in making any such apportionment. In the event the Legislature shall fail to reapportion the representation in the Legislature as required by this amendment, the Governor shall (within thirty days after the adjournment of the regular session), call the Legislature together in extraordinary session to consider the question of reapportionment and such extraordinary session of the Legislature is hereby mandatorily required to reapportion the representation as required by this amendment before its adjournment (and such extraordinary session so called for reapportionment shall not be limited to expire at the end of twenty days or at all, until reapportionment is effected, and shall consider no business other than such reapportionment.)” (Emphasis added.)

Appellants rely upon the language emphasized to support their contention that the effectiveness of the reapportionment of the House of Representatives is contingent upon reapportionment of the Senate.

The statute under attack comes to this court clothed with a presumption of validity. One wlio challenges the constitutionality of an Act of the Legislature must clearly demonstrate its invalidity. All doubts are resolved in favor of the constitutionality of legislative action and as between two possible theories of interpretation, the courts are bound to adopt the one which results in upholding the Act if such interpretation is consistent with reason. See Ball v. Branch, 154 Fla. 57, 16 So.2d 524.

The duty imposed upon the Legislature to apportion representation in the Legislative branch of the government is political and administrative. . It involves the exercise of judgment and discretion within the orbit prescribed by the organic law. It is a governmental function in the sense that it is commanded by the Constitution pursuant to the responsibility of providing for the actual structure of the government itself. The Florida Constitution mandatorily places upon the Legislature the duty to take the initiative to apportion representation in both Houses of the Legislature in accordance with the constitutional requirements.

It is clear from an examination of the second and fourth sentences of Article VII, Section 3, quoted above, that this is a continuing duty. See Smith v. Holm, 220 Minn. 486, 19 N.W.2d 914; Parker v. State, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119, 18 L.R.A. 567; and 11 Am.Jur. Constitutional Law, Sec. 70, p. 688.

Under our democratic system equality of representation is essential to the preservation of Democracy itself. The thought is well expressed by the Supreme Court of Oklahoma in Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, 569, from which we quote as follows:

“ * * * The principle of equality of representation lies at the very heart of representative government. 18 Am.Jur. 192, #17. This principle was enjoined upon the Legislature by the cited constitutional provisions. At the ballot box, in a representative government, each citizen is supposed to be, and should be, the equal of every other citizen, and all are entitled to approximately an equal voice in the enactment of laws through elected Representatives. * * * ”

Despite the importance of this legislative responsibility and despite • the fact that the provisions of our Constitution are clearly mandatory, we are nevertheless forced to the conclusion that, the responsibility rests with the Legislature and not with this court. The Legislature is a coordinate branch of the government and even though the performance of a duty is required by the Constitution, the courts, being another coordinate branch of the government, are not authorized to compel the Legislature to exercise a purely legislative prerogative. We are not here intending to' hold that 'once the legislative discretion is exercised and crystallized into a statute, the courts do not have the power to examine the statute and measure its validity by the prescriptions of the organic law.

We here intend to hold, and do so hold, that the Florida Constitution places upon the Legislature two related duties. One is to apportion the membership of the State Senate and the other is to apportion membership in the House of Representatives. The Legislature has performed one of these duties by passing the statute under attack. We cannot read into the Constitution a provision which is not there. There is nothing in the Constitution which provides that reapportionment of the House is contingent upon reappor;tionment of the Senate, or vice versa. While a casual examination of the quoted constitutional provision might lead one to the thought that both branches of the Legislature should be reapportioned simultaneously or at least within such proximity of time as to be originally effective at the sáme general election, a more careful1 analysis will reveal that no such stipulation is written into the organic law and we are without power to provide one.

On the relationship between the Legislature and the courts with reference to reapportionment statutes, see Donovan v. Suffolk County, 225 Mass. 55, 113 N.E. 740, 2 A.L.R. 1334 (note 1337), and also 37 Illinois Law Review 20.

As was stated in Smith v. Holm, 220 Minn. 486, 19 N.W.2d 914, 916:

“ * * * The remedy lies in the political conscience of the legislature, where lies the burden of the constitutional mandate.. It is not within the province of this court to prompt the action of that conscience. It is usually sensitive enough to promptings from the electorate.” . .

The exceedingly "able briefs- of counsel for all; parties have failed to reveal any really direct precedents that would be considered conclusive. Possibly the most closely analogous decision is Stenson v. Secretary of State, 308 Mich. 48, 13 N.W.2d 202, 208. In construing a constitutional provision somewhat similar to our own, the Supreme Court of Michigan held:

“We are not in accord with the intervening plaintiffs’ further contention that since the Constitution, Art. V, § 4, provides for ‘rearrangement’ of senatorial districts, as well as reapportionment of representative districts once in each ten years, the 1943 reapportionment act as to representative districts should be held invalid as an ‘abuse of legislative discretion’, because the 1943 legislature did not also rearrange senatorial districts.”

Like the court in the case last cited, we are not in a position to conclude that the Florida Legislature has abused its legislative discretion by enacting Chapter 31378, supra, without enacting a companion measure for the reapportionment of the Florida Senate. As pointed out above, the courts are without power to order legislative action. A contrary ruling would destroy our system of “checks and balances.” We judicially know that pursuant to a gubernatorial call issued in accord with the fourth sentence of Section 3, Article VII, the Legislature of 1955 is still technically in extraordinary session and is scheduled to reconvene on June 4, 1956. We must assume that the Legislature will do its duty as its discretion dictates within the limits of the fundamental law.

What we have heretofore said disposes of the problem before us except as to the contention of appellee Stewart to the effect that by the enactment of Chapter 29615, Laws of Florida 1955, Regular session, which adopted the 'Florida Statutes of 1955, F.S.A. §' 16.19, the • Legislature in effect reapportioned the Florida Senate- by including Section 10.01, Florida Statutes 1955, F.SA., in the 1955 Revision. Section 10.01, Florida Statutes, F.S.A., is nothing more,than the codification of Chapter 23614, Laws of Florida, 1945, reapportioning the State Senate as of November 5, 1946. While we have held, that the inclusion of .a general Act of the Legislature in the statutory revision will cure a defect in the title of the Act, as it originally passed the Legislature, see State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So.2d 804, we cannot conclude that the Legislature of 1955 can perform the constitutional duty imposed upon it in 1955 by including in the Revision a reapportionment Act enacted in 1945. The third sentence of Article VII, Section 3, of the Florida Constitution, provides that the preceding regular Federal or State Census which shall have been taken nearest any apportionment shall control in the making of any such reapportionment. An examination of Section 10.01, Florida Statutes 1955, F.S.A., will reveal that it became effective at the general election on the 5th day of November, 1946. It could hardly be logically contended that a reapportionment effective in November, 1946,. could have been based upon the Federal Census taken in 1950, which we judicially know to be the last preceding regular Federal Census and the one which would control any reapportionment made by the 1955 Legislature. We dispose -of this point by adopting the reasoning of the Supreme Court of Alabama in Re Opinion of the Justices, 1950, 254 Ala. 185, 47 So.2d 714, 717, where the following conclusion was reached.

“We judicially know that the population of the various counties of this state has changed during the years which have intervened since the Constitution of 1901 was adopted, so that the representation as provided in §§ 1 and 2 of Title 32, Code 1940, cannot be said to be on a population basis. The contention is without merit that by bringing forward into the Code of 1940 the provisions of previous Codes as to the Division or apportionment -of representation in this state constitutes apportionment of the representation of the legislature within the purview of Sections 198-201 of the Constitution of 1901.” ■ ■

Chapter 23614, Laws of Florida 1945, remains the law of Florida until repealed or superseded. However, in and of itself, it cannot be construed as amounting to a compliance with a constitutional requirement that could not he performed until 1955 at the earliest.

All parties are commended for the enlightening and helpful briefs filed in this cause.

We find no error in the ruling of the Chancellor and his decree is therefore

Affirmed.

DREW, C. J., TERRELL and THOMAS, JJ., and PRUNTY, Associate Justice, concur.

ROBERTS and HOBSON, JJ., agree to conclusion.


author: O’CONNELL, Justice.

text:
    Will Henry BAKER, Appellant, v. A. William MORRISON, Dewey H. Johnson, S. E. Simmons, Russell J. Davis and Clyde Morris, as Members of and constituting the Florida Board of Pharmacy for the State of Florida, Appellees.
    Supreme Court of Florida. Division B.
    April 11, 1956.
    Horton & Horton, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., Phillip Goldman, and James L. Graham, Jr., Asst. Attys. Gen., for appellees.
   O’CONNELL, Justice.

Appellant here was plaintiff in the court below, appellees were defendants below. In this opinion the parties will be referred to as plaintiff and defendants. Plaintiff sought a declaratory decree to construe his rights under the provisions of Chapter 28150, Laws of Florida, Acts of 1953, now Chapter 465, F.S.1953, F.S.A. and in particular the provisions of Section 465.071 of said Chapter.

It was stipulated between the parties, for the purpose of this appeal only, that the plaintiff possessed the requirements of the statute as to age, citizenship and good moral character; that plaintiff had 25 years actual experience in drug and pharmaceutical work; that plaintiff had been employed as an apprentice to a registered pharmacist in a retail drug store subsequent to his 16th birthday and that he has engaged in the compounding of prescriptions and the sale of drugs, etc., for more than 2,080 hours as required by the statute, but that none of such experience was had after receipt of a degree from a school or college of pharmacy. Plaintiff admitted he did not have the educational qualifications prescribed in subparagraph (b), Subsection 1, of Section 465.071, supra.

The pertinent section of the statute is copied here in its entirety:

“465.071 Qualifications of applicants for examination
“(1) The board of pharmacy shall examine by written and practical laboratory examinations under such rules and regulations as the board may prescribe, every person who shall have:
“(a) applied for examination and registration in accordance with sec. 465.061, and shall have paid the fee required by said section, and
“(b) submitted proof satisfactory to the board that he is not less than twenty-one years of age, a citizen of the United States, of good moral character, and he is a recipient of a degree from a school or college of pharmacy financially supported by the . state of Florida or from a school or college of pharmacy in the United States or any of its territories or possessions including the District of Columbia, which school or college of pharmacy required the applicant to complete not less than four academic years of higher educational training consisting of not less than three thousand hours of instruction in cultural, foundation, and professional courses for the degree in pharmacy and which courses and school or college of pharmacy have been found by the Florida board of pharmacy to satisfactorily supply the cultural, foundation, and professional education necessary in training a pharmacist for the protection of public health.
“(c) submitted proof satisfactory to the board that he has been employed, subsequent to his sixteenth birthday, as an apprentice to a registered pharmacist, in a retail drug store or in the pharmacy of a hospital with an outpatient department, and while so employed was engaged in the compounding of prescriptions and the sale and distribution of drugs and medical supplies, for a total of not less than two thousand and eighty hours of which not less than one thousand and forty hours occurred ¡ífter such applicant was granted his degree from said school of pharmacy or college of pharmacy, and
“(d) shall have met such additional requirements as to age, education, experience and moral character as the board may have prescribed;1 ' for the purpose of carrying into effect the provision of this section.
“(2) The board may permit an applicant, who has satisfied all requirements of subsection (1) and of the board except those relating to age or experience, to take such written examinations as may be given by the board, but no applicant shall be allowed to take a practical laboratory examination until such applicant has satisfied all- the requirements of subsection (1) and of the board and the successful passing of the written examination shall confer no rights or privileges upon the applicant in connection with the practice of pharmacy in this state. Laws 1953, c. 28150, § 1.”

The plaintiff contends that the provisions of subparagraphs (b), (c), and (d) of Subsection (1) of the above quoted statute should be construed as being alternative rather than cumulative when applied to an applicant who does not possess the educational qualifications contained in subparagraph (b) thereof. He relies principally on the fact that a period was placed at the end of the content of said subpara-graph (b).

This court has said that the legislature is presumed to know the meaning of words and the rules of grammar and that the court must derive the intention of the legislature from what it said, not only from considering the phraseology of an act, but also the manner in which it is punctuated. Florida State Racing Commission v. Bourquardez, Fla., 42 So.2d 87.

The case cited, howpver, involved pri-. marily the use of words rather than punctuation. In fact an examination of that opinion of this Court fail's to show how the matter of punctuation was involved. In 50 Am.Jur., Statutes, Section 253, page 249, it is stated:

“In the interpretation of statutes, the punctuation thereof is not seriously regarded. It is a minor, and not a decisive or controlling element in the interpretation of a statute. Indeed, punctuation is generally regarded as a fallible standard of the meaning of a statute, and the last resort as an aid in its interpretation. Where the true meaning of the legislature is manifest, the courts will not permit punctuation to control, but will disregard the punctuation of a statute or repunctuate, if need be, to give effect to what otherwise appears to .be its .true meaning. * * *”

It is conceded that there are cases where the punctuation of a statute should be considered as an aid in interpreting doubtful provisions. It- is also true that courts ' should not give to the statute a meaning different from that indicated by the punctuation unless as punctuated the statute is inconsistent, absurd, or ambiguous. 50 Am.Jur., supra, page 250. We believe that this is a case where this Court is warranted in giving the statute a meaning. different than that indicated by the punctuation. - .

To adopt plaintiff’s view that the period placed after subparagraph (b) makes the provisions of section 465.071 • alternative rather than cumulative would thwart the clear intent of the legislature in enacting the statute in question. Plaintiff contends that if the provisions were in the alternative, orié could qualify under subparagraph (c) by obtaining the required hours of experience under a registered pharmacist, plus meeting such additional requirements as to age, education, and experience as the board may prescribe [subparagraph (d) ]. Plaintiff relies on the placing of a period after subparagraph (b) for this contention but he also relies on addition of the words “if he received such a degree” following the words “after such applicant was granted his degree from said school of pharmacy or college of pharmacy”. The former words do not appear in the statute but without them subpara-graph (c) would be meaningless if plaintiff’s view was followed. To interpret subparagraph (c) as being cumulative to (a) and (b) gives (c) a logical meaning. To interpret the period after (b) as disallowing the cumulative connection renders (c) so absurd or ambiguous as to authorize the Court to give the statute a meaning inconsistent with that indicated by the punctuation by changing, in effect, such punctuation.

Even- if plaintiff’s interpretation of the legislative meaning of subparagraph (c) was correct in that the words “if he received such a degree” were necessarily incorporated therein, subparagraph (d) must necessarily follow as a cumulative requirement to subparagraph (c), otherwise one could qualify under the statute solely by having one year’s experience (2,080 hours is equivalent to fifty-two forty hour weeks) as an apprentice under a registered pharmacist. Certainly, this was not the intent of the Legislature. But an examination of subparagraph (d) reveals that it applies to “this section”. This clearly means subparagraph (d) applies to section 465.071 in its entirety, not just to one subparagraph of such section. Furthermore, under (d) the Board merely has the power to set additional requirements “for the purpose of carrying into effect the provision of this section”.

We believe it was the intention of the Legislature, in spite of the placing of a period after subparagraph (b), to make' the provisions of section 465.071 cumulative rather than alternative and that it is nec- ■ essary for a candidate for examination by the Board of Pharmacy to have both a degree of pharmacy from a qualified school and also the required number of hours of experience. This interpretation is logical and would appear to better protect the public interest than the interpretation sought by the plaintiff.

The decree appealed from is affirmed.

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