author:
TERRELL, Chief Justice.
      DREW, Justice

text:
    In the Matter of Dubell B. DUKE and Hethie Duke, husband and wife, Adoption.
    Supreme Court of Florida, En Banc.
    June 12, 1957.
    D. J. Bradshaw and Geo. W. Scofield of Scofield & Bradshaw, Inverness, for appellants.
    Roger D. Flynn,’ Tampa, and Albert W. Graessle, Jr., Jacksonville, for appellee.
   TERRELL, Chief Justice.

Dubell B. and Hethie Duke, husband and wife, petitioned the Circuit Court of Hills-borough County to adopt a girl child about two and one-half years of age named Jeannie Marie Ellison. Mr. and Mrs. Duke were at the time of the petition 48 and 63 years old respectively. Both were shown to be in good health, of good moral character, industrious, of Christian conviction, owned a modest home free of incumbrances, had an annual income of considerably ■ more than $3,000, were respectable citizens and apparently well adjusted. They had been married 20 years without rift or separation in the domestic climate and the child in question had been in their possession for one and one-half years. It was turned over to them by the natural father, they had fed, nourished and restored it to normal health and had become attached to it.

At final hearing the chancellor denied the petition for adoption because (1) petitioners were not of suitable age; (2) petitioners’ financial structure was not such as to safeguard the welfare of the child; (3) the child’s natural mother did not give her consent to the adoption; (4) the best interest of the child would not be served by granting the adoption. The final decree further ordered that the care, custody and control of the child, be placed in the Tampa Children’s Home for the purpose of placement or adoption and that the State Welfare Board take immediate custody of and hold it pending delivery 'by the State Welfare Board to the Tampa Children’s Home for placement as ordered. This appeal is from the final decree so entered.

We think the chancellor applied the wrong test to determine the qualification of petitioners for adoption. It is true that the Dukes are not what we recognize as young people, but they are by no means old as that term is at present applied; they were shown to be in good health, were not in their dotage, had no children of their own and wanted this one. As already pointed out, the Dukes had been in possession of the child for a year and one-half during which, so far as the record discloses, their custody was not interfered with nor is there showing that their love and affection for it was not genuine. They voluntarily proposed to adopt it, enabling it to be a part of and to inherit from them. To be brought up in a modest home by poor but honest and industrious parents is a great heritage. That and performance of the daily chores is the means by which we imbibe courtesy and respect for the rights of others by precept and example. It is the means by which we become kind and considerate, even to dumb animals, grow into the well adjusted personality and leave no tracks for the sheriff or policeman to run down.

As to the income of petitioners, the record shows it to be well over $3,000 per year. I doubt if there is a man on this court whose father and mother had an income of more than $3,000 at the time he was being brought up. A study of the life of those who have made “Who’s Who” reveals that they invariably came from homes supported by very modest incomes, many of them as low as $500 or $600 per year. I do not overlook the fact that in those days dollars often looked like cart wheels and one of them would buy sirloin enough for Sunday dinner for a large family and leave enough for hash and gravy to make Monday’s grits fit for a king. We do not overlook the fact that income is an important consideration in providing for the care and rearing of an infant but there are other important factors. The intangibles — love, affection, instructive companionship and devotion to high principles — also play an important role in the development of good character and citizenship.

We do not discount the fact that what an infant eats and wears is important but in appraising that which is for his best interest, age and income of the proposed foster parents are relative and should not necessarily conclude the question. It would be mistaken logic to conclude that a man and wife the age and income of petitioners were not competent to adopt an infant child when other factors that enter into the transaction are present and press for consideration. One with ten times the income and much younger might not be near so good a risk.

In a democracy like ours many elements are essential to the making of a competent citizen; some are tangible, others are intangible; both are important; rarely if ever will the infant be exposed to all of them; potential parents are not usually packed with them. The skill and wisdom of the chancellor is best demonstrated by discerning where the infant will be exposed to most of them and placing him there. It is not a question of perfection but one of reducing error to the minimum in the light of the facts before him.

We do not think this rule was observed so the judgment is reversed with directions to enter judgment in favor of petitioners the record showing nothing to the contrary.

Reversed.

THOMAS, HOBSON, ROBERTS and THORNAL, JJ., concur.

DREW and O’CONNELL, JJ., dissent.

DREW, Justice

(dissenting).

In this case we are dealing with the whole future life of a little girl, not the right of the petitioners to the possession of a chattel. Our first and paramount consideration should be the welfare of the child. In all of the cases it has been said that this premise is the foundation on which these cases rest but I fear that the circumstances surrounding the early life of this child and the manner in which these petitioners received possession of her and nurtured and cared for her in her extreme infancy has blinded the court to such an extent that the majority opinion does violence to this cardinal concept.

This case was extensively heard on two separate occasions by an able trial judge. It is of profound importance that in our review the intangible and unreportable aspects of personality of the prospective parents are not available to us as they were to him. We have never looked into the eyes of either the petitioners or the child. The simple fact is that in this case the probabilities are that his judgment is better than ours.

This is not a case where a parent or other relatives seek adoption. Moreover, it is obvious that the child has not been in the possession of these petitioners for more than a year. The alternative to adoption by petitioners is indicated by the original order of the lower court granting custody and control of the child to the Tampa Children’s Home “for the purpose of future adoptive placement by the said licensed child placing agency.” An expert witness testified in the hearings that there were many more applicants than children at this placement agency.

Selecting foster parents who show the highest probability of being able to provide for the continuing spiritual, social and economic welfare of the child, is the main purpose of cases of this kind. The problems of today are not the same as they were a generation ago. A contrast of old settings with new is drawn by Robert P. Knight, M. D. in his article, Some Problems Involved in Selecting and Rearing Adopted Children: “Within the past twenty or twenty-five years there have been tremendous changes in the social attitudes and methods regarding children who have lost their parents. This sociological revolution can best be thrown into clear relief by contrasting the former distressing system of ‘orphan asylums’ and haphazard adoptions with the present system of temporary children’s institutions, foster homes and child placement agencies with highly trained personnel.” Bulletin of the Minninger Clinic, May, 1941, p. 65.

Mr. and Mrs. Duke rely heavily on In re Adoption of Brown, Fla.1956, 85 So.2d 617, but I am not persuaded that this case is authority for them. It is clear that the trial court did not rely on age alone but based its conclusion upon many factors which combined to make the adoption unsuitable. The trial court said:

“It is true, of course, that age is not the deciding factor in a proceeding of this kind, nevertheless, it is a factor to be considered in the entire picture, particularly the age of the adopting mother in relation to a girl child about 2i/¿ years of age. Likewise it is clear from the testimony that the income of the parties is limited.”

There is nothing in this record which reflects upon the good character and reputation of Mr. and Mrs. Duke. What they have done for this child is to be highly commended. They nurtured and cared for her as their own and it may well be said that the child is alive today because of their interest in her. Nevertheless, and in spite of my deep and profound sympathy for these two people, to me the conclusion is inescapable that the welfare of this child and its future will be better served by accepting the recommendations of the Welfare Board and affirming the decision of the learned chancellor below. It may well be that on mature reflection these people may reach the conclusion, as did the real mother in the famous trial before Solomon, that the chancellor’s disposition of the case was in the best interest of the child.

O’CONNELL, J., concurs.


source: Caselaw Access Project

author: THORNAL, Justice. PER CURIAM.

license: Public Domain

text:
    Peter DE GROOT, Appellant, v. L. S. SHEFFIELD et al., Appellees.
    Supreme Court of Florida, En Banc.
    May 29, 1957.
    As Amended on Denial of Rehearing June 26, 1957.

      Coffee & Coffee, Jacksonville, for appellant.
    Elliott Adams and McCarthy, Lane & Adams, Jacksonville, for appellees.
   THORNAL, Justice.

Appellant DeGroot, who was relator below, seeks reversal of an order of the Circuit Judge dismissing his petition for a writ of mandamus which was sought to compel the appellees to' reinstate the relator as án employee ■ of the Duval County School Board.

The determining question is whether the action of the County Civil Service Board, which supervises the county merit system, can be reviewed and collaterally assaulted as a defense to a mandamus proceeding.

Relator Peter DeGroot had been an employee of the Duval County School Board for about eighteen years prior to February 9, 1955. For the last ten years he held the position of “Supervisor of Construction. Since 1943 he was in the classified service under the Duval County Civil Service Act. See Chapter 22263, Laws of Florida, Acts of 1943. On August 4, 1954, the School Board, with the approval of the Civil Service Board, created the position of “Supervising Architect” and filled the job by appointment of a registered architect named Broadfoot. On February 9, 1955, the School Board adopted a resolution delineating the functions of the Supervising Architect, many of which had theretofore been performed by DeGroot, as Supervisor of Construction. By the same resolution the School Board proposed that the position of Supervisor of Construction be abolished.

Section 7, Chapter 22263, Laws of Florida, Acts of 1943, provides in part as follows :

“ * * * No position in the classified [service] shall be abolished without the approval of the Civil Service Board. Positions may be abolished only in good faith.”

Pursuant to this requirement, the School Board resolution was submitted to the County Civil Service Board which, after an extended hearing, declined to approve the resolution defining the duties of the Architect and abolishing the position of Supervisor of Construction.

Despite the action of the Civil Service Board, the School Board proceeded to dismiss DeGroot from his employment. Pie .thereupon instituted this action in mandamus to compel reinstatement. In the mandamus proceeding the parties stipulated that .the .transcript of the testimony offered before the Civil Service Board could be filed in evidence. A motion to quash the alternative writ was likewise filed. Upon consideration of the record thereby presented, the trial judge concluded that regardless of the judgment of the Civil Service Board, the action of the School Board in resolving to abolish the position of Supervisor of Construction was taken in good faith and that therefore DeGroot was subject to dismissal. He thereupon granted the respondents-appellees’ motion to dismiss the petition in mandamus and entered final judgment in their favor. Reversal of this judgment is here sought.

It is contended by the appellant-relator that the decision of the Civil Service Board was not subject to collateral attack 'by the respondents in the mandamus proceeding. He further contends that if review of that order were desired by the respondents, they should have proceeded by way of certiorari and that in all events the trial judge could not re-weigh the evidence presented to the Civil Service Board.

It is the position of the appellees that the order of the Civil Service Board should not be enforced in the absence of supporting substantial evidence and that the decision of the Board could be reviewed by the Circuit Judge regardless of the nature of the proceeding to determine whether there was substantial evidence in support thereof.

We are here squarely confronted with the problem of determining the appropriate procedure for obtaining review of an order of an administrative agency. Although administrative agencies have been known to the law for many years, it has only been within fairly recent years that a substantial body of jurisprudence has developed with reference to so-called “administrative law.” Because of the expansion of the number of boards, commissions, bureaus and officials having authority to make orders or determinations which directly affect both public and private rights, there has been an increasing number of cases involving the extent of the authority of these agencies as well as the validity or correctness of their conclusions in particular instances. We are told that in our state government there are over one hundred boards, bureaus and officials engaged in administrative activities affecting the rights and property of individuals as well as the public. See French’s Research in Florida Law, p. 54; 1 Florida Law and Practice, Administrative Law, Sec. 30. In addition there are innumerable county and city boards and agencies such as Civil Service Boards and other boards that perform similar functions.

Although over the years many cases in one form or another have come to this court involving the correctness of orders of administrative agencies, we are unaware of any that has squarely and directly raised the problems presented by the instant appeal. Despite the local nature of the particular problem at hand, it appears to us that it is appropriate to undertake to reconcile many of our previous apparently divergent opinions in an .effort to establish for the future some orderly procedure in disposing of problems of this nature. We dó this also in fairness to the trial judge who undoubtedly was confronted with some of these conflicting viewpoints 'but who did not have available the opportunity for detailed research that accompanies appellate review. Nonetheless, as pointed out by Kenneth Culp Davis in 44 Illinois Law Review p. 565, “No branch of administrative law is more seriously in need of reform than the law concerning methods of judicial review.” This author then observes, “No other branch is so easy to reform.” The review-ability of an administrative order depends on whether the function of the agency involved is judicial or quasi-judicial in which event its orders are reviewable or on the contrary whether the function of the agency is executive in which event its decisions are not reviewable by the courts except on the sole ground of lack of jurisdiction. In the latter event the order is, of course, subject to direct or collateral attack.

It is in some measure insisted in the case before us that the decision of the Civil Service Board is beyond the scope of judicial review. The contention to this end is that the ultimate decision of the Board is executive in nature and beyond the reach of the courts. In Bryan v. Landis, 106 Fla. 19, 142 So. 650, it was pointed out that where one holds office at the pleasure of the appointing power and the power of appointment is coupled with the power of removal contingent only on the exercise of personal judgment by the appointing authority, then the decision to remove or dismiss is purely executive and not subject to judicial review. In the same opinion, however, we pointed out that if removal or suspension of a public employee is contingent upon approval 'by an official or a board after notice and hearing, then the ultimate judgment of such official or board based on the showing made at the hearing is subject to appropriate judicial review. The reason for the difference is that when notice and a hearing are required and the judgment of the board is contingent on the showing made at the hearing, then its judgment becomes judicial or quasi-judicial as distinguished from being purely executive. See also, Owen v. Bond, 83 Fla. 495, 91 So. 686; Sirmans v. Owen, 87 Fla. 485, 100 So. 734; State ex rel. Tullidge v. Hollingsworth, 103 Fla. 801, 138 So. 372; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392; State ex rel. Pinellas Kennel Club v. State Racing Commission, 116 Fla. 143, 156 So. 317. In the same cases and similar ones it was held that where an officer or employee is removed pursuant to purely executive authority, the courts will do no more than examine into the existence of jurisdictional facts to determine only the question of the existence of executive jurisdiction.

Applying the rule of these cases to the situation before us it is perfectly obvious that in deciding upon the advisability of abolishing a position in the classified service, the Civil Service Board was exercising a quasi-judicial function. This is so for the reason that it arrived at its decision after a full hearing pursuant to notice based on evidence submitted in accordance with the statute here involved. This being so its ultimate decision was subject to judicial review in an appropriate proceeding. State ex rel. Williams v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705, 95 A.L.R. 1416; West Flagler Amusement Co. v. State Racing Commission, 122 Fla. 222, 165 So. 64; State ex rel. Hathaway v. Williams, 149 Fla. 48, 5 So.2d 269; Hammond v. Curry, 153 Fla. 245, 14 So.2d 390.

Having determined the nature of the order under consideration we next proceed to ascertain the appropriate method of obtaining review as well as the scope of review available. It must be conceded that over the years orders of administrative agencies have been placed under scrutiny in Florida in both mandamus and certiora-ri cases. Admittedly, little attention has been given to the propriety of the procedure in particular cases. Hence the resultant confusion. We interpolate that we pretermit in this instance any discussion of the proper use of the equity injunction and the writ of prohibition. Injunction has been many times employed to assault legislative action at the state and local level where such action allegedly impinged on some constitutional right. Attacks on municipal zoning ordinances are typical. Prohibition has at times been employed as against quasi-judicial action of administrative agencies where the agency proposed to exceed its jurisdiction or exercise jurisdiction which it did not have. We further mention that we are discussing herewith appellate review in situations where applicable statutes fail to provide specific methods of review as was the case here. When the statute provides the appellate procedure, that course should be followed. Curry v. Shields, Fla.1952, 61 So.2d 326, 327; State ex rel. Coleman v. Simmons, Fla. 1957, 92 So.2d 257.

Recurring to the problem at hand we are reminded that certiorari is a discretionary writ bringing up for review by an appellate court the record of an inferior tribunal or agency in a judicial or quasi-judicial proceeding. The writ is available to obtain review in such situations when no other method of appeal is available. Lorenzo v. Murphy, 159 Fla. 639, 32 So.2d 421. In certiorari the reviewing court will not undertake to re-weigh or evaluate the evidence presented 'before the tribunal or agency whose order is under examination. The appellate court merely examines the record made below to determine whether the lower tribunal had before it competent substantial evidence to support its findings and judgment which also must accord with the essential requirements of the law. It is clear that certiorari is in the nature of an appellate process. ' It is a method of obtaining review, as contrasted to a collateral assault.

We have used the term “competent substantial evidence” advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Becker v. Merrill, 155 Fla. 379, 20 So.2d 912; Laney v. Board of Public Instruction, 153 Fla. 728, 15 So.2d 748. In employing the adjective “competent” to modify the word “substantial,” we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. Jenkins v. Curry, 154 Fla. 617, 18 So.2d 521. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be “competent.” Schwartz, American' Administrative Law, p. 88; The Substantial Evidence Rule by Malcolm Parsons, Fla. Law Review, Vol. IV, No. 4, p. 481; United States Casualty Company v. Maryland Casualty Company, Fla. 1951, 55 So.2d 741; Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126.

As contrasted to certiorari, mandamus is an original proceeding to enforce a clear legal right to the performance of a clear legal duty. It is not an appellate writ. As in any original proceeding the record and evidence are made and offered in that proceeding. While it is by nature discretionary it is not an appropriate process to obtain a review of an order entered by a judicial or quasi-judicial agency acting within its jurisdiction. When thus analyzed it is obvious that certiorari and mandamus serve two entirely different functions.

In delineating the distinctions between certiorari and mandamus we disclaim any allegiance to the formalities and technicalities of the past. Procedural formalities are not necessarily sacrosanct merely because they are time-honored. Nonetheless, in situations such as the one before us, the distinctions have a present and vital importance in determining the issues presented by the litigants and considered by the trial court. We'think the lines of demarcation are justifiable in a field such as administrative law which is still in its formative stages of development.

Applying the foregoing general rules to the situation presented by this record it becomes apparent that the assault made by the réspondents-appellees on the order of the Civil Service Board as a defense to the mandamus proceeding was entirely collateral to the quasi-judicial proceeding had before the Civil Service Board itself. No direct review of the order of the Civil Service Board was sought by the appellees. The Civil Service Act specifically required the approval of the Civil Service Board as a condition precedent to the abolition of the job in the classified service. Prior to dismissing the appellant-relator the School Board had failed in its effort to obtain such approval. If it had been dissatisfied with- the -order of the Civil • Service Board such order was subject to appropriate review by certiorari. When the mandamus proceeding was filed by the relator, the order of the Civil Service Board declining to abolish the job held by the relator was in full force and effect. There is no assault on the jurisdiction of that board. The job therefore had not been legally abolished. This, being so, the relator under the Civil Service Act was entitled to continue to fill the job and his dismissal was without justification. Freeman on Judgments (Sth ed.) Vol. 3, Sec. 1258; 42 Am.Jur., Public Administrative Law, Sec. 159, 160; State ex rel. Spruck v. Civil Service Board, 226 Minn. 240, 32 N.W.2d 574.

We mention in passing that there were no charges before the Civil Service Board that relator had failed in any measure to perform his job well. The sole issue revolved around abolishing the job that he held.

In view of the foregoing, from the showing made by this record, the relator was en-. titled to the issuance of a peremptory writ. It was error to dismiss his petition therefor. The judgment under review is therefore—

Reversed.

TERRELL, C. J„ and THOMAS, HOB-SON, ROBERTS, DREW and O’CON-NELL, JJ., concur.

On Rehearing

PER CURIAM.

The last sentence of our opinion of May 29, 1957, is amended to read as follows:

“The judgment under review is therefore reversed without prejudice to any rights which the appellees may have under the rules announced in State ex rel. Dresskell v. City of Miami, 153 Fla. 90, 13 So.2d 707”.

When addressed to the opinion as amended, the petition for rehearing is denied.

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


author: PER CURIAM.

text:
    Pierre BOURGEOIS, Appellant, v. MERCANTILE NATIONAL BANK OF MIAMI BEACH, Florida, a United States corporation, Appellee.
    Supreme Court of Florida, Special Division B.
    June 5, 1957.
   Appeal from Circuit Court, Dade County; Vincent C. Giblin, Judge.

PER CURIAM.

Affirmed.


text:
    George STAMOS and J. A. McCarthy and Guarina Alvarez, d/b/a Alvarez & McCarthy, Appellants, v. Logan O. TURRENTINE and Ruth B. Turrentine, his Wife, Appellees.
    Supreme Court of Florida, Division B.
    April 12, 1957.
    Rehearing Denied June 28, 1957.
   Appeal from Circuit Court Dade County; Marshall C. Wiseheart, Judge.

PER CURIAM.

Affirmed.


text:
    B. M. SALZMAN and Lee Salzman, doing business as Lee’s Luggage, Appellants, v. ARKIN CONSTRUCTION COMPANY, a Florida corporation, and City of Miami, a municipal corporation, Appellees.
    Supreme Court of Florida, Division B.
    May 29, 1957.
    Rehearing Denied June 28, 1957.
   Appeal from Circuit Court, Dade County; Marshall C. Wiseheart, Judge.

PER CURIAM.

Affirmed.


text:
    Cornelia B. NICHOLS, Appellant, v. William Paul NICHOLS, Appellee.
    Supreme Court of Florida. Division B.
    April 24, 1957.
    Rehearing Denied June 20, 1957.
   Appeal from Circuit Court, Polk County; D. O. Rogers, Judge.

PER CURIAM.

Affirmed.


text:
    R. C. SINGER, Appellant, v. BONACKER & LEIGH, Inc., a Florida corporation, B. B. Leigh, Harry Goyen, J. B. Winter and Jack W. Bell, Appellees.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
   Appeal from Circuit Court, Dade County; William A. Herin, Judge.

PER CURIAM.

Affirmed.


text:
    Mary BLANK, as Administratrix of the Estate of Mae Lebow, Deceased, Appellant, v. Grace June MURDOCK, Appellee.
    Supreme Court of Florida, Division A.
    May 29, 1957.
   Appeal from Circuit Court, Dade County; Robert L. Floyd, Judge.

PER CURIAM.

Affirmed.


text:
    Henry E. TORNWALL, Appellant, v. Sherry CARTER, a minor, by her next friend, Morris W. Carter, Appellee.
    Supreme Court of Florida, Special Division B.
    May 29, 1957.
   Appeal from Circuit Court, Hillsborough County; L. L. Parks, Judge.

PER CURIAM.

Affirmed.


text:
    BORDEN COMPANY, a corporation, Appellant, v. John G. HENTZ, Jr., and Ruth M. Hentz, Appellees.
    Supreme Court of Florida, Special Division B.
    May 29, 1957.
   Appeal from Circuit Court, Bay County; D. Stuart Gillis, Judge.

PER CURIAM.

Affirmed.


text:
    Herman LEIBOWITZ et ux., Appellants, v. John CHRISTO, Appellee.
    Supreme Court of Florida, Special Division B.
    May 29, 1957.
   Appeal from Circuit Court, Alachua County; John A. H. Murphree, Judge.

PER CURIAM.

Affirmed.


text:
    Lena SABELLA, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
   Appeal from Criminal Court of Record for Dade County, Ben Willard, Judge.

PER CURIAM.

Affirmed.


text:
    F. W. CLARKE, Jr., and James K. Lawrence, Appellants, v. Elmo D. JARRETT and Emma Jean Jarrett, Appellees.
    Supreme Court of Florida, Special Division B.
    May 29, 1957.
   Appeal from Circuit Court, Volusia County; Robert H. Wingfield, Judge. ^

PER CURIAM.

Affirmed.


text:
    Kenneth A. ROUSE, Appellant, v. William M. GUILIANO and Albert Del Conte, Appellee. Kenneth A. ROUSE, Administrator of the Estate of Dominicia Marie Rouse, Deceased, Appellant, v. William M. GUILIANO and Albert Del Conte, Appellees.
    Supreme Court of Florida, Special Division B.
    May 29, 1957.
   Appeals from Circuit Court, Dade County; Grady L. Crawford, Judge.

PER CURIAM.

Affirmed.


text:
    A. H. CALLIS, Appellant, v. Clay TAYLOR and Annie Belle Taylor, his wife, Appellees.
    Supreme Court of Florida, Division A.
    May 31, 1957.
   Appeal from Circuit Court, Orange County; Terry B. Patterson, Judge.

PER CURIAM.

Affirmed.


text:
    Sonia GLAZER and Ralph Glazer, her husband, Appellants, v. KESANDRA CORP., a Florida corporation, Appellees.
    Supreme Court of Florida, Special Division A.
    May 22, 1957.
    Rehearing Denied June 20, 1957.
   Appeal from Circuit Court, Dade County; Vincent C. Giblin, Judge.

PER CURIAM.

Affirmed.


author: GREMILLION, Judge.

text:
    INTERNATIONAL PAPER COMPANY, INC. v. Sheriff William Earl HILTON, et al.
    No. 06-895.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 2006.
    Rehearing Denied Jan. 10, 2007.

      Steven G. Durio, Robert L. Broussard, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Plaintiff/Appellant, International Paper Company, Inc.
    Jerry R. Osborne, New Orleans, LA, Robert L. Bussey, Bussey & Lauve, Alexandria, LA, for Defendants/Appellees, Sheriff William Earl Hilton, Ralph Gill, Assessor, Ward 9 Recreation District.
    Dannie P. Garrett, III, Louisiana Municipal Assoc., Baton Rouge, LA, for Amicus Curiae, Police Jury Association of Louisiana.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

In this case, the plaintiff, International Paper Company, Inc. (IP), appeals the trial court’s judgment holding that the assessment of ad valorem taxes in favor of the defendants, Sheriff William Earl Hilton, in his capacity as tax collector for Rapides Parish; Ralph Gill, in his capacity as assessor of Rapides Parish; and Richard Ieyoub, in his capacity as Attorney General for the State of Louisiana, was proper. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2003, IP filed a petition for refund of ad valorem taxes paid under protest claiming that its property is located in an “industrial area” and is, therefore, not subject to taxation pursuant to La.R.S. 33:130.15, which was repealed and replaced by La.R.S. 51:1202.

IP’s industrial area was created in November 1973, and the recreation district was created in October 1976. IP urged that it has provided all of the services enumerated in La.R.S. 51:1202 (formerly La.R.S. 33:130.15), such as street lighting, water service, and garbage collection. The defendants filed an exception of prescription and peremption. Following a hearing on the exceptions, the trial court granted the exceptions on a limited basis pertaining to the validity of certain election and bond issues, but reserved the issue of whether IP should be subject to taxation.

The defendants filed a motion for summary judgment urging that IP’s petition for refund of taxes should be dismissed. IP filed a motion for summary judgment urging that there was no genuine issue of fact that it was entitled to a refund. Following a hearing, the trial court granted summary judgment in favor of the 12defendants, and denied IP’s motion for summary judgment without assigning reasons. IP now appeals.

ASSIGNMENTS OF ERROR

IP assigns as error:

1.The trial court’s failure to find that industrial areas are not subject to annexation, incorporation, or inclusion by any “newly created” municipality or district, and therefore, that IP’s property in Ward 9 is not “property subject to taxation” by the “newly created” Ward 9 recreation district, pursuant to La.R.S. 33:130.15-130.16 and La.R.S. 51:1202-1203.
2. The trial court’s failure to find that the Resolution of the Police Jury establishing the industrial area was a contract providing that the IP plant would not be subjected to ad valorem tax by any newly created political subdivision.
3. The trial court’s failure to find that IP is due a refund for all Ward 9 Recreation District taxes paid under protest with interest at the actual rate earned on money paid under protest in the escrow account during the period from the date such funds were received by the officer to the date of such refund, pursuant to La. R.S. 47:2110, and its failure to declare that the industrial area should be removed from the assessment rolls of the recreation district.

DISCUSSION

Appellate review of a question of law is simply a decision as to whether the trial court’s decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. If the trial court’s decision was based on its erroneous application of law, its decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). When an appellate court finds that a reversible error of law was made in the lower court, it must redetermine the facts de novo from the entire record and render a | ¿judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

ASSIGNMENT OF ERROR NUMBER ONE

The issues presented in this case are difficult partially due to the poorly worded statutes enacted by the legislature and its failure to fully repeal certain other statutes. IP’s argument primarily relies on a literal reading of the statutes in question. However, having reviewed the statutes, jurisprudence, and briefs, we find that the trial court’s grant of summary judgment in favor of the defendant was correct. We note that the industrial area in question was created in November 1973, and the recreation district was created in October 1976.

Louisiana Revised Statute 33:130.15, which was enacted in 1964, but repealed in 1995, stated:

Those industries located within the boundaries of any industrial area shall furnish and maintain individually or as a group the following services usually provided by parish or local governments: the construction and cleaning of streets, street lighting, sewers and sewerage works, water service, fire protection, and garbage and refuse collection and disposal. Any industrial area which furnishes and maintains all of the above enumerated services shall not be subject to annexation.

(Emphasis added).

Louisiana Revised Statute 33:130.16, which has not been expressly repealed, states:

No portion of an industrial area may be included within any newly created special service district furnishing any of the services enumerated in R.S. 33:130.15.

(Emphasis added).

Louisiana Revised Statute 51:1202, which was enacted in 1995, replaced La. R.S. 33:130.15, and states:

4Those industries located within the boundaries of any industrial area established pursuant to Subpart b-1 of Part IV of Chapter 1 of Title 33 of the Louisiana Revised Statutes of 1950 shall furnish and maintain individually or as a group the following services usually provided by parish or local governments: the construction and cleaning of streets, street lighting, sewers and sewerage works, water service, fire protection, and garbage and refuse collection and disposal. Any industrial area which furnishes and maintains all of the above enumerated services shall not be subject to annexation or incorporation. Any industrial area heretofore designated which complies with the provisions hereof shall be considered validly designated hereunder and any agreement or resolution with respect thereto shall be considered to include all services herein enumerated though not specifically included therein. Agreements between industries located within the boundaries of an industrial area and the governing authority of the parish and/or any municipality or municipalities situated therein may be made for mutual fire protection in grave emergencies.

(Emphasis added).

Louisiana Revised Statute 51:1203, also enacted in 1995, states:

No portion of an industrial area that provides any of the services enumerated in R.S. 51:1202 shall be included within any newly created municipality.

(Emphasis added).

The Louisiana Supreme Court recently summarized the rules of statutory interpretation in Pumphrey v. City of New Orleans, 05-979, p. 10-12 (La.4/4/06), 925 So.2d 1202,1209-10 (citations omitted):

The fundamental question in all cases of statutory interpretation is legislative intent and the ascertainment of the reason or reasons that prompted the Legislature to enact the law. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Legislation is the solemn expression of legislative will, and therefore, interpretation of a law involves primarily a search for the Legislature’s intent.
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. When the language of the law is susceptible of different | ¿meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the Legislature in enacting it. The statute must, therefore, be applied and interpreted in a manner, which is consistent with logic and the presumed fair purpose and intention of the Legislature in passing it. This is because the rules of statutory construction require that the general intent and purpose of the Legislature in enacting the law must, if possible, be given effect. Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. It is likewise presumed that the intention of the legislative branch is to achieve a consistent body of law.
La.Civ.Code art. 13 provides, where two statutes deal with the same subject matter, they should be harmonized if possible. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Under general rules of statutory construction, the latest expression of the legislative will is considered controlling and prior enactments in conflict are considered as tacitly repealed in the absence of an express repealing clause.

LOUISIANA REVISED STATUTES

33:130.16

Accordingly, pursuant to Article 13 and Pumphrey, and the rules of statutory construction, we find that La.R.S. 33:130.16 has been tacitly repealed and replaced by La.R.S. 51:1203.

IP’s main argument is that by providing the enumerated services set forth in La.R.S. 51:1202, it is exempt from any inclusion into a special service district/municipality/other type of governmental entity, and, is therefore, exempt from taxes because it cannot be included in the jurisdiction. However, pursuant to Article |fi13 and the analysis in Pumphrey, La.R.S. 33:130.16 has been tacitly repealed, which leaves La.R.S. 51:1203 as the last expression of legislative will. A plain reading of La.R.S. 51:1203 leads to the conclusion that any business located in an industrial area that provides the listed services for itself is, thereafter, immune from being included in any newly created municipali ty. A simple analysis would lead to the conclusion that the recreation district is not a municipality, and therefore, La.R.S. 51:1203 has no application to the facts at hand, and IP is subject to the recreation district’s ad valorem tax. Although we disagree with IP’s assertion that a recreation district falls within the definition of a municipality, we find the distinction in this instance irrelevant as fully explained below.

In interpreting the meaning of these statutes, the question boils down to whether the mere existence of an industrial area provides a blanket tax exemption due to exclusion from any newly created municipality or whether the nature of the services provided by the district determines exclusion. There have been few cases involving the statutes in question, however, we addressed similar issues in a case involving the same plaintiff in International Paper Co. v. Hilton, 96-212 (La.App. 3 Cir. 12/11/96), 685 So.2d 567, writ denied, 97-0119 (La.3/7/97), 689 So.2d 1377 {IP1). In IP1, the trial court granted summary judgment in favor of IP in a suit for the refund of ad valorem taxes assessed for the benefit of Fire Protection District Number 4. On appeal, we concluded that the trial court improperly granted summary judgment because we found there was a genuine issue of material fact as to whether the police jury intended to create a new district providing new services or reorganize an existing fire protection district with existing services. We further expounded as 17to La.R.S. 33:130.16, that it is:

[N]ot an exemption from taxation but a limitation upon a special service district’s power to impose a tax upon an “industrial area” in the first place. An exemption is, by definition, an exception to an entity’s obligation to otherwise pay an existing, legally enacted tax. La.R.S. 33:130.16 is not an exemption from taxation; it imposes a prohibition on a newly created special service district’s jurisdictional power to tax an “industrial area.” Id. at 574.

Additionally, we quoted the trial court’s judgment, which stated:

Obviously, the primary purpose of RS 33:130.15 and 130.16 is not to offer tax incentives or to grant immunity or exemptions from taxation, but to prevent those industries which provide their own utilities and other customary public services from being subsequently annexed into or included within any entity which also provides these services.

Id. at 569.

Interestingly, IP argues that IPl supports its proposition that the nature of the services is irrelevant. Although counsel puts forth a persuasive argument, we are still undeterred in our conclusion that the basis of the exclusion is the benefit of avoiding double taxation for services a business in an industrial area already provides for itself.

In Allied Signal v. Jackson, 96-0138, p. 11 (La.App. 1 Cir. 2/14/97), 691 So.2d 150, 158, writ denied, 97-0660 (La.4/25/97), 692 So.2d 1091, the appellate court affirmed the trial court’s finding that certain industrial areas could not be included in the area proposed to be incorporated as the municipality of Geismar and stated:

IsThe Louisiana constitution provides that the legislature may authorize parishes to create and define industrial areas within their boundaries in accordance with procedures and subject to regulations set forth by the legislature. LSA-Const. Art. VI, § 18. In 1964, the legislature enacted LSA-R.S. 33:130.11 et seq. pertaining to industrial areas, in which it granted parish governing authorities the ability to establish industrial areas composed of territory wholly within the parish boundaries and without the boundaries of any municipality. LSA-R.S. 33:130.11. Subject to the written approval of 51% in interest of the landowners of the proposed industrial area, such areas may include any compact body of land which is used exclusively for industrial purposes or is primarily suited for industrial development. LSA-R.S. 33:130.11 and 130.12. Industries within a designated industrial area are required to furnish and maintain the following services: the construction and cleaning of streets, street lighting, sewers and sewerage works, water service, fire protection and garbage and refuse collection and disposal. LSA-R.S. 51:1202, formerly LSA-R.S. 33:130.15. The statute was enacted to enhance industrial development by allowing industries to provide for themselves certain services normally provided by parish and local governments, thus freeing the parish or local government from having to provide these services. In return for providing these services, these industries are not subject to annexation by an existing municipality or incorporation into a newly formed municipality. LSA-R.S. 51:1202 and 1203.

(Emphasis added).

The defendants then argued that La. R.S. 51:1202 and 1203 violate a municipality’s constitutionally granted power to assess an ad valorem tax and are, therefore, unconstitutional. The appellate court disagreed stating:

Clearly, the residents of an unincorporated area do not have greater rights than the residents of a municipal corporation. Like municipal corporations, their powers are also within the province of the legislature, such that the legislature is free to limit the territory that is subject to incorporation. Pursuant to its authority under LSA-Const. art. VI, §§ 2 and 18, the legislature certainly has the power to limit the territory to be included in a new municipality. By enacting LSA-R.S. 33:130.11, 51:1202 and 51:1203, the legislature has exercised powers given to it by the state constitution.

Id. at 159.

IflWe agree with the trial court’s assertions in IPl and the reasoning of Allied Signal. In ascertaining the intent of the legislature and in reading all of the statutes in pari materia, we do not believe that the legislature intended to provide a blanket tax exemption for businesses in an industrial area. Dispensing with all forms of taxation necessary to ensure that parish needs and improvements are met, would, as the police jury pointed out in its amicus curiae brief to this court, cause complete chaos across the State of Louisiana. Further, if the legislature intended that businesses in industrial areas should be exempt from any further taxation whatsoever by excluding those areas from being included in various districts or municipalities, it needs to make its intentions clearer in its legislation. Our analysis of the various statutes leads us to conclude that the legislature intended to exempt an industrial area only from being annexed, incorporated, or included in a municipality if the entity located in the industrial area already provides the various services for itself so that it may not have to pay the governmental entity for services that it has already provided. We believe the legislature changed the terminology to “municipality” in La.R.S. 51:1203 because a municipality, as opposed to a special service district, is the governmental body that usually provides the services enumerated.

IP further argues that a “municipality” and a special service district such as the recreation district at issue are one in the same for purposes of the statute. Our interpretation of the statute is that the legislature intended to exclude industrial areas from being taxed for services it already provides for itself. On the other hand, it does not exempt the industrial area from any and all taxes, such as those for a recreation district. Because the issue here is taxes for a recreation district, as opposed to taxes | inlevied to provide one of the enumerated services, we find that the distinction between a municipality and a special service district is irrelevant. The tacit repeal of La.R.S. 33:130.16, as replaced by La.R.S. 51:1203, would only confer the exclusion from municipalities.

IP strongly argues that Allied stands for the proposition that La.R.S. 51:1203 assures against subsequent taxation regardless of the nature of the service for which the taxation is based. We disagree. As we quoted from Allied above, we hold the exclusion from the municipality is based on the fact that the business located in the industrial area has provided these basic services for itself, “thus freeing the parish or local government from having to provide these services,” via a general ad valorem tax. If our interpretation violates legislative intent, the legislature may clarify the breadth of the benefits it seeks to give to businesses located in an industrial area by subsequent legislation.

ASSIGNMENT OF ERROR NUMBER TWO

IP’s second assignment of error is essentially a reiteration of its first. IP argues that it has contractual rights based on the resolution of the Rapides Parish Police Jury which created the industrial area in which IP is located. The resolution merely confers the status of “industrial area” with the benefits of the statutes in question. The question remains, however, as to the legislature’s intent in creating the statutes. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Based on our previous findings, we find the trial court did not err in failing to order the defendants to return the sums paid in protest by IP. Accordingly, lathis assignment of error is without merit.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of the defendants-appellees, Sheriff William Earl Hilton, in his capacity as tax collector for Rapides Parish; Ralph Gill in his capacity as assessor of Rapides Parish; and Richard Ieyoub, in his capacity as Attorney General for the State of Louisiana, is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, International Paper Company, Inc.

AFFIRMED.

      . The supreme court in In re Pitre, 93-2322 (La.1/14/94), 630 So.2d 700, found that a statute which provided an exemption from ad valorem taxation was in derogation of the 1974 Louisiana Constitution and was, therefore, unconstitutional.