author: ALMON, Justice. MADDOX, Justice

text:
    In re James Ferril TURNER v. STATE of Alabama. Ex parte James Ferril Turner.
    SC 1803.
    Supreme Court of Alabama.
    Feb. 4, 1977.
    Charles C. Partin, III, Bay Minette, for petitioner.
    William J. Baxley, Atty. Gen. and Mary Lee Stapp and William S. La Bahn, Asst. Attys. Gen., for respondent, State.
   ALMON, Justice.

This case is before the court by writ of certiorari to the Court of Criminal Appeals. The prosecution was initiated by the State of Alabama against petitioner for non-support of his children under Tit. 34, § 90, Code of Alabama 1940, Recompiled 1958.

Petitioner contends that one of the elements required for a conviction under Tit. 34, § 90, is that there be a showing that the children are in “destitute or necessitous circumstances,” and that the State completely failed to make such a showing. We agree and reverse.

This case was originally tried in the Juvenile Court of Baldwin County and later tried de novo in circuit court. The circuit judge sentenced petitioner to 90 days in jail, suspended upon the provision that he pay $40.00 per week for child support. On March 9, 1976, the Court of Criminal Appeals affirmed the decision without opinion. Application for rehearing was overruled without opinion. In the application petitioner requested findings of fact and submitted his suggested findings pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure (ARAP).

Petitioner’s approach under Rule 39(k) was to set out all the pertinent facts in an effort to support his conclusion that the State failed to adduce proof that the children were in “destitute or necessitous circumstances.” We have found his statement and conclusion to be correct.

We adhere to the principle that on certiorari this court will only consider questions of law. “But if such tribunal misapplied the law to the facts as found by it, or if there was no evidence to support the finding, a question of law is presented which should be thus reviewed.” Ex parte Alabama Textile Products Corporation, 242 Ala. 609, 615, 7 So.2d 303, 308 (1942).

Tit. 34, § 90, Code, supra, denounces as criminal the failure to provide for a dependent wife or children. One of the elements of the crime is that the wife or children must be “then and there in destitute or necessitous circumstances.” Tit. 34, § 90. The petitioner’s proposed submission of facts contains no reference to the condition of the children. The State’s brief contains its statement of the facts of the case as required by Rule 28, ARAP; however, nowhere in its statement of the facts is any reference made to the condition'of the children, nor does the State argue that such facts exist. Rather, the State contends that a showing of economic need satisfies the requirement of destitute or necessitous circumstances, and the fact that the wife is out of work, that the husband has failed to fulfill his obligation under the divorce decree, etc., constitutes such a showing.

If the State’s contention were upheld a prosecution under § 90 could be successfully maintained even though the children were independently wealthy. Such a construction has never been placed upon the statute and conceivably, if it were, might be unconstitutional as suggested in Johnson v. State, 22 Ala.App. 160, 113 So. 480 (1927). In Johnson the court observed:

“The duty sought to be enforced in this prosecution is not the obligation running to the mother, but is a duty running to the state that defendant support his own children lest they become a charge upon the public. .
“This statute was-never ’ intended to make the criminal law an instrument for the enforcement of a civil liability in favor of the mother nor indeed could it do so under the Constitution. Its purpose is to protect the public. When a man has children who by his own contract or by order of the court have been placed in the custody of a third person who agrees to care for and support them, and so far as he knows such children are being so cared for, it cannot be said that he has willfully neglected them. If A sends his minor children to B, under an agreement, either expressed or implied, that B will support them, and B does so, A cannot be convicted on a charge of desertion or willful neglect, although a civil obligation may run to B as against A. So, in this case, the children are not being neglected, nor are they in want. Whatever liability there is runs to the mother as against defendant on his common-law duty to support his children, but under this evidence he cannot be convicted of willful neglect.
...” Id. at 161-162, 113 So. at 482.

More recently, in Rouse v. State, 43 Ala. App. 171, 175, 184 So.2d 839, 844 (1966), the court observed:

“It would thus appear that § 90, supra, is intended to provide the minimum standard for all children without regard to the station in life of the parents. That is, that it is a misdemeanor to allow a child to fall into destitute or necessitous circumstances. St John v. State, 22 Ala. App. 115, 113 So. 321.”

A conviction under Tit. 34, § 90, is a criminal conviction, and not a substitute for civil enforcement of a divorce decree. In fact, a party could be in compliance with a divorce decree and still be in violation of Tit. 34, § 90, if that party would be able to provide support (willfully fail to provide support or maintenance “without just cause” or “without lawful excuse”), but does not do so when his children are in “destitute or necessitous circumstances.” See Rouse, supra.

In the instant case, one can only surmise as to the actual condition of the children. Nothing was said directly about their state of being. A criminal conviction under Tit. 34, § 90, cannot stand as a matter of law without such evidence.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES, EMBRY and BEATTY, JJ., concur.

MADDOX and SHORES, JJ., dissent.

MADDOX, Justice

(dissenting).

This Court, in reversing the Court of Criminal Appeals, cites a prior decision of the old Court of Appeals, Johnson v. State, 22 Ala.App. 160, 113 So. 480 (1927), as authority. If Johnson stands for the proposition that a father cannot be criminally prosecuted because of the fortuitous circumstance that charitably inclined relatives or strangers may support the child, then I think Johnson is wrong. But Johnson does not say that. In Johnson, the evidence showed that the defendant there had supported the children while he had them, and even while the criminal prosecution was pending he was seeking custody again. Obviously, the State failed to prove willful neglect in that case.

The evidence in this case is far different from the evidence in Johnson, or the illustrations given by the court in Johnson. Here, Turner did nothing to fulfill his legal and moral obligation to support his children. The criminal offense is complete, in my judgment, when the State shows that the defendant left his children at the mercy of the public.

The majority holds: “In the instant case, one can only surmise as to the actual condition of the children.” I believe the majority misplaces the burden of proof. I do not think that the State has to negative the fact that someone other than the parents are taking care of their children. Otherwise expressed, the “destitute or necessitous” condition of the child is not eliminated because public or private charity intervenes to save the child from nakedness, the ravages of the physical elements, or starvation. The fact that the father’s default, admittedly shown, did not precipitate his children’s immediate descent to the lowest scale of human existence, or require them to seek public welfare, or private charity, should not furnish a defense for him. A father has a duty to support his children and is not relieved of that duty by the fact that others assume it for him. Willfully abandoning this duty and forcing others to assume it is made criminal by the statute. In fact, the Johnson case says that:

“The duty sought to be enforced in this prosecution is not the obligation running to the mother, but is a duty running to the state that defendant support his own children lest they become a charge upon the public. . . . ” [Emphasis added].

Note that the language in Johnson is not “if they are a charge upon the public ” but “¡est they become a charge upon the public.” The evidence is uncontradicted here that the defendant did nothing to make sure that his children did not “become a charge upon the public.” Consequently, he violated the law.

Punishment for willful failure to support one’s own children should not be stayed by the chance existence of public or private charity which gives some measure of child support that might have been expected from the defaulting father.

See Wisconsin v. Freiberg, 35 Wis.2d 480, 151 N.W.2d 1 (1967); 67 C.J.S. Parent and Child § 92, pp. 825-826.

SHORES, J., concurs.

      . Tit. 34, § 90, Code of Alabama 1940, Recompiled 1958:

        “Husband or parent failing to provide for dependent wife or children. — Any husband who shall, without just cause, desert or wil-fully neglect or refuse or fail to provide for the support and maintenance of his wife; or any parent who shall without lawful excuse desert or wilfully neglect or refuse or fail to provide for the support and maintenance of his, or her, child, or children, under the age of eighteen years, whether such parent have custody of such child, or children, or not, she' or they being then and there in destitute or necessitous circumstances, shall be guilty of a misdemeanor and, on conviction thereof, shall be punished by a fine of not exceeding one hundred dollars, or be sentenced to a term in the county jail, or at hard labor for the county for a period of not more than twelve months, or the fine may be in addition to either the sentence to jail or to hard .labor.”


source: Caselaw Access Project

license: Public Domain

text:
    James Ferril TURNER v. STATE.
    1 Div. 673.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
   After remandment from the Supreme Court of Alabama: REVERSED AND REMANDED on mandate of the Supreme Court, 343 So.2d 591.


author: ADKINS, Justice. ROBERTS, Justice (Retired), BOYD, Justice,

text:
    Joseph GAZIL, Petitioner, v. Norma GAZIL, Respondent.
    No. 47628.
    Supreme Court of Florida.
    Jan. 27, 1977.
    J. Ralph Mabie, Mabie & Donaldson, West Palm Beach, Charles W. Musgrove, Tallahassee, and William S. Turnbull and Arthur R. Lóuv, Young, Turnbull & Lin-scott, Orlando, for petitioner.
    John A. Gentry, III, Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, and Edward F. O’Connor, O’Connor, Baylor, Callas & Elliott, Palm Beach, for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Gazil v. Gazil, 313 So.2d 484, (opinion filed January 30, 1975)), which allegedly conflicts with a prior decision of this Court (Bronk v. Bronk, 46 Fla. 474, 35 So. 870 (1903)), on the same point of law. Article V, Section 3(b)(3), Florida Constitution.

In March 1974, a final judgment of dissolution of marriage was entered, and on April 1,1974, petitioner timely filed a notice of appeal seeking to challenge various financial rulings in the final judgment.

Subsequently, in May and September 1974, after the notice of appeal was filed, the trial court entered supplemental orders awarding temporary alimony pending appeal and court costs and attorneys’ fees to respondent. In November 1974 and January 1975, petitioner was adjudged by the trial judge to be in contempt for failure to pay costs, attorneys’ fees and temporary alimony under the supplemental orders. Respondent filed a motion to dismiss the appeal on January 27, 1975, setting out these matters and suggesting that petitioner was a fugitive from justice. The cause was argued on the merits before the appellate court on January 28, 1975, at which time the court also heard argument on respondent’s motion. The order of dismissal which petitioner now attacks was entered on January 30, 1975.

The Constitution of Florida creates the right to appeal. As said in Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126 (1925):

“While the Constitution provides that ‘the Supreme Court shall have appellate jurisdiction in all cases at law and in equity originating in circuit courts,’ the statutes regulate the appellate processes and procedure and the stages in a cause at which and the time within which the appropriate appellate process and procedure may be utilized; but such statutory regulations and the appellate procedure had under the regulations cannot legally be used to impair the right to invoke the appellate jurisdiction conferred upon the Supreme Court by the Constitution or to obstruct the powers of the court to make its appellate jurisdiction effective.” (Emphasis supplied.) At p. 128.

The question before the Court is whether an appeal can be dismissed for the appellant’s disobedience of an order of the trial court.

In an Annotation, 49 A.L.R.2d 1425 (1956), the following appears:

“In contrast with the relative clarity of the law with respect to the permissibility of the dismissal of an appeal where the appellant has disobeyed an order of the appellate court, there is considerable judicial disagreement as to whether an appeal can be dismissed for the appellant’s disobedience of an order of the trial court. . . . the reader will note that there are not only inter jurisdictional conflicts, but also — in California, Florida, Illinois — apparent intrajurisdictional conflicts in the decisions.” At 1429.
if! * * * * Sfc
“The question whether an appellate court may dismiss the appeal for the appellant’s failure to obey a trial court’s order has been before the Florida courts in two cases, the results in which are diametrically opposed.” At 1438.

The Florida cases referred to in the Annotation are Bronk v. Bronk, supra, and Palmer v. Palmer, 28 Fla. 295, 9 So. 657 (1891). The annotator points out that the opinion in Bronk, supra, contains no reference to Palmer, and the inconsistency is at least superficial.

In Bronk writs of ne exeat and injunction were issued against a defendant who then escaped from custody and finally remained beyond the court’s jurisdiction, so that the trial court was powerless to enforce the writs. The appellate court refused to hear an appeal on the question of granting the ne exeat writ, saying:

“The appellant having, since he took this appeal, voluntarily placed himself in contempt of the orders of the court below, and having gone beyond the jurisdiction of this court, so that no order or decree it might make in the premises could be personally enforced against him, we are confronted with the question whether he has a right to a hearing on questions based on the injunction and ne exeat orders. Doubtless the general rule is that a party is not deprived of any strict legal right to be heard by placing himself in contempt of the court, especially if there be other means available by which the court may enforce its orders. . . . Governed by these views, we decline to entertain and hear the assignments of error of John P. Bronk numbered 1, 2, 3, 6, and 7.” (Emphasis supplied.) 35 So. 870, at 871.

The assignments of error referred to in the opinion related to the writ of ne exeat. The Court did not refuse to entertain assignment of error number 4, relating to the granting of the temporary injunction, and assignment of error number 5, relating to an order on the pleadings. In other words, the Court held that the entire appeal should not be dismissed.

In Bronk, supra, the Court held that a party in contempt is not deprived of his right to be heard, if there are other means available to enforce the Court’s order. Where one absconds from the jurisdiction, of course, there is no way for the Court to enforce its order, and an appeal could properly be dismissed. But even in Bronk the Court retained jurisdiction of the case so that other matters unrelated to the contempt could be considered.

In Morris v. Rabara, 145 So.2d 265 (Fla. 2d DCA 1962), it appeared that the appellant had disobeyed an order of the trial court. The appellate court in granting relief said:

“The motion of the appellee will be granted, and an order will be entered that this appeal be dismissed unless it shall be made to appear to this court, on or before thirty (30) days from the date of the filing of this opinion, that the appellant has either purged himself of his contempt or is in the custody of the Sheriff of Palm Beach County.” At 267.

Durham v. Durham, 297 So.2d 857 (Fla. 4th DCA 1974), involved a situation where the appellant had been adjudged in contempt for failure to comply with an order of the trial court. In granting the motion to dismiss, the court said:

“Accordingly, the motion to dismiss will be granted and an order will be entered that this appeal be dismissed unless it shall be made to appear to this court, on or before 15 days from the date of the filing of this opinion, that the appellant has either purged himself of contempt or is in the custody of the Sheriff of Orange County.” At 858.

From these decisions it appears the rule in Florida is as follows: Where the appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal. However, where a dismissal is ordered it is mandatory that the disobedient appellant must be given a period of grace, prior to the effective date of the dismissal, in which to comply with the disobeyed order.

The order of the District Court of Appeal in the case sub judice conflicts with these decisions in that petitioner was not given an opportunity to purge himself so that he could be heard on the merits of the appeal.

If an appellant husband absconds, the situation would be quite different and there would be no need to allow a period of time within which he could purge himself and be heard on appeal. If the contempt is for nonpayment of money, he should be given an opportunity to purge himself so that he could be heard on the merits of the case.

The decision of the District Court of Appeal is quashed and the cause remanded for further proceeding in accordance with the views expressed in this opinion.

It is so ordered.

OVERTON, C. J.; and SUNDBERG and HATCHETT, JJ., concur.

ROBERTS (Retired), J., concurs specially with an opinion, with which ADKINS and HATCHETT, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

ENGLAND, J., dissents.

ROBERTS, Justice (Retired),

concurring specially.

In this case, it is noteworthy that the trial court faced the issue and made a finding of fact that the husband was able financially to pay the sums ordered and, in effect, that his failure to do so was in defiance of the trial court. For that reason, I concur with the decision in this case. We are not here concerned with the case where the husband is, after due diligence, unable to make the payments ordered because of his indigency. In such an event, to deny him his right to appeal would, in my opinion, be a deprivation of a constitutional right under both the Constitution of Florida and. the Constitution of the United States. Before dismissing for failure to comply, it is necessary that the trial court make a specific finding that the appellant is able to pay and deliberately refuses to pay which Order is reviewable by the reviewing court on any •motion to dismiss appeal for such failure. During such appeal, however, the minor children would not be without remedy because of their right under F.A.R. 3.8(b) which provides adequate judicial machinery to impose and enforce a reasonable allowance within the ability of the parent to pay.

ADKINS and HATCHETT, JJ., concur.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion requiring the decision of the District Court of Appeal to be quashed in order that petitioner be allowed a reasonable time to purge himself of the contempt incurred through disobedience of the trial court order.

I respectfully dissent to the majority’s authorization of dismissal of an appeal in its entirety on the ground that the appellant may be guilty of contempt of court by failure to comply with a trial court order under review. The very basis of appeal in many instances is inability of a litigant to comply with the order appealed. Often, matters not directly pertaining to the contempt are before the appellate court and justice requires proper disposition of them.

The Florida Constitution gives to every litigant the right to appeal and vests the District Courts of Appeal with jurisdiction of appeals taken as a matter of right. Article V, Section 4(b)(1), Florida Constitution.

Those who demonstrate contempt for any court should be punished or allowed to purge themselves, but no provision of the Constitution of this State authorizes dismissal of appeals because of contempt in the trial court. Appellate review should be denied only upon the grounds traditionally recognized, such as, being frivolous, without merit, or not within the jurisdiction of the court.


author: PER CURIAM. BOYD, Justice,

text:
    Frank A. SMITH III, Petitioner, v. STATE of Florida, Respondent.
    No. 47753.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Rehearing Denied March 24, 1977.
    Mark Hawes, Tampa, Robert J. Buonauro and James N. Powers, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard P. Zaretsky and Stephen R. Koons, Asst. At-tys. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. The writ of certio-rari must be and it is hereby discharged.

It is so ordered.

OVERTON, C. J, and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion with which ADKINS, J., concurs.

ROBERTS (Retired), J., dissents.

BOYD, Justice,

dissenting.

I respectfully dissent from discharge of the writ of certiorari. When the Court issued the writ after a petition for rehearing, I voted to accept jurisdiction because the decision of the District Court of Appeal, Fourth District, in this case conflicted with Zerega v. State, 260 So.2d 1 (Fla.1972); Baker v. State, 30 Fla. 41, 11 So. 492 (1893); Christiansen v. State, 280 So.2d 41 (Fla.3d DCA 1973); Blocker v. State, 92 Fla. 878, 110 So. 547 (1926). These cases hold that if the predicate to expert testimony is not proved the testimony must be disregarded. I continue to believe there is conflict between these cases and the result of the decision in this case.

The defendant’s defense of temporary insanity was supported by expert testimony that when told by the victim (his girlfriend) that she had engaged in sexual relations with another man the same day, a disasso-ciative reaction occurred which led to the murder. The court refused to admit both testimony of the man with whom the victim allegedly had sexual relations and of the physician who, during the autopsy, found semen in the corpse of the victim. This evidence would have provided the predicate for the expert testimony.

The court instructed the jury to reject the expert testimony if it found that the alleged facts upon which the testimony was based had not been proven. Since the court so instructed the jury, it seems to me that the defendant should have been given the opportunity to prove, by the excluded testimony, the existence of the facts upon which the expert testimony was based. Therefore, I would quash the decision of the District Court of Appeal, Fourth District, and direct that the cause be remanded to the trial court for a new trial.

ADKINS, J., concurs.


author: OVERTON, Chief Justice.

text:
    STATE OF Florida, Petitioner, v. David MANGAM, Respondent.
    No. 48676.
    Supreme Court of Florida.
    Feb. 25, 1977.

      Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for petitioner.
    Richard L. Jorandby, Public Defender, and James R. Merola and Henry Pretty-man, Sp. Asst. Public Defenders, for respondent.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review the Fourth District Court of Appeal decision in Mangam v. State, 324 So.2d 672 (Fla. 4th DCA 1975). That decision conflicts with Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947), and Bernhardt v. State, 288 So.2d 490 (Fla.1974), and we have jurisdiction.

In February, 1972, respondent Mangam plead guilty to conspiracy to commit a felony, breaking and entering. The following May, he was placed on probation for three years. Mangam violated the terms of that probation, admitting he failed to maintain his residence in Riveria Beach and failed to report to his probation supervisor as required.

The Court found him guilty of violating the order of probation, and in lieu of revoking probation extended his probation one year and required him as a further condition of probation to successfully reside at and complete the Pride House program and abide by all the rules and regulations in the program.

On June 13, 1974, respondent was charged with violating his probation by leaving the Pride House. Mangam plead not guilty, but at the revocation hearing chose not to testify on his own behalf when asked by the court to explain his leaving the Pride House program. The probation supervisor testified that the probationer was absent when he went to the Pride House and that the manager advised him the probationer had left the program. The judge said that he considered respondent’s silence a factor weighing against him and revoked probation. On appeal, the Fourth District Court of Appeal reversed, ruling that the trial court abridged respondent’s Fifth Amendment rights by penalizing him for refusing to testify.

We recently held in State v. Heath, 343 So.2d 13 (filed February 10, 1977), that:

“[A] probationer, upon a specific request and at periodic intervals, may be required to identify himself and provide all necessary information for his supervision including the place of his residence and his employment. He may be required to confirm or deny his location at a particular place at a particular time, to explain his noncriminal conduct, and to permit the search of his person and quarters by the supervisor. Failure to do so may itself be grounds for revocation or probation. His agreement to accept the terms of probation effectively waives his Fifth Amendment privilege with regard to this information. There would be no practical means to properly supervise an individual on probation without a requirement that the probationer respond to directions and requests for information from the probation supervisor. . . . ”

Proper supervision is an essential ingredient of any probation. To adopt the contention of the probationer in this case would make probation supervision a farce. A probationer is allowed to live outside of confinement as a matter of judicial grace. It is clearly proper to require a probationer to maintain a residence, report his movements, report regularly to the supervisor or the court, and to require any other reasonable conditions which will assure rehabilitation of the probationer and protect the public. We hold the revocation of probation was proper. When a probationer refuses to discuss his compliance or non-compliance with the terms of his probation concerning his residence, this is a factor the judge may consider in a revocation hearing. It was not error for the judge to infer from Man-gam’s silence confirmation of Mangam’s failure to maintain, his residence at the Pride House and thus the violation of a condition of his probation.

The decision below of the Fourth District Court of Appeal is reversed, and the revocation of probation reinstated.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const.


author: SUNDBERG, Justice. BOYD, Justice,

text:
    Raymond MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 48831.
    Supreme Court of Florida.
    Feb. 25, 1977.
    Louis G. Carres, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   SUNDBERG, Justice.

We issued our order allowing certiorari because of the conflict between the decision in this case of the First District Court of Appeal, reported at 324 So.2d 690, and Wright v. State, 291 So.2d 118 (Fla. 2d DCA 1974). We have dispensed with oral argument and consider the case as presented in the briefs submitted by the parties.

Petitioner and another were convicted in the Circuit Court in and for Santa Rosa County on possession of burglarious tools on September 16 and 17,1974, and of breaking and entering into a coin-operated vending machine on September 17, 1974. Petitioner was sentenced as a recidivist under Section 775.084, Florida Statutes (1973), to a prison term of ten years, the last five of which were to be suspended and replaced by five years probation. He contends that the trial court erred in failing to follow the procedure outlined in Section 775.11, Florida Statutes (1973), which was in effect at the time of trial and thereafter until the effective date of its repeal, October 1, 1975. (See Ch. 74-383, as amended by Ch. 75-24, Laws of Florida.) Section 775.11 reads as follows:

“Procedure in prosecutions for second and subsequent offenses.—
“(1) If at any time after sentence or conviction it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in § 775.09 or § 775.10 the state attorney for the county in which such conviction was had shall file an information accusing said person of such previous convictions, whereupon the court in which such conviction was had shall cause said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof, according to law, and shall require such offender to say whether he is the same person as charged in such information or not.
“(2) If he says he is not the same person or refuses to answer or remains silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empaneled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If the jury finds that he is the same person or if he acknowledges or confesses in open court after being duly cautioned as to his rights that he is the same person the court shall sentence him to the punishment prescribed in § 775.09 or § 775.10 as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated.
“(3) Whenever it shall become known to any warden or prison, probation, parole or police officer or other peace officer, that any person charged with or convicted of a felony has been previously convicted within the meaning of § 775.09 or § 775.10 he shall forthwith report the facts to the state attorney for the county.”

The District Court of Appeal, speaking through Judge Smith, rejected petitioner’s contention, holding that “the former strictures of § 775.11, requiring the full panoply of information, arraignment and trial on the issue of identity, do not apply when the fact of the recidivist’s prior conviction of a felony appears to the sentencing judge before or at the time of the adjudication and sentence for the subsequent offense.”

In Wright v. State, supra, and in a case involving a different appellant with the same surname decided the same day and reported at 291 So.2d 129, the District Court of Appeal, Second District, concluded that summary imposition of the enhanced sentence because of a defendant’s recidivist status was impermissible. That court, while conceding that the procedures under Section 775.11 “may well be archaic and cumbersome,” nevertheless found that its strictures applied to that factual situation, which does not differ significantly from that with which we are faced today.

The process by which the two district courts reached differing conclusions is easily described. The Second District, speaking through Chief Judge McNulty, pointed out that prior to 1971 Florida’s general recidivist statutes were Section 775.09, .10, and .11. In that year, however, the Legislature enacted Chapter 71-136, Laws of Florida, which repealed Section 775.09 and .10, dealing with the punishment for second and fourth felony convictions respectively, and replaced it with Section 775.084. Section 775.084, Florida Statutes (1973), “was intended to be substituted in the stead of the repealed sections and . . . was to be the sole general recidivist statute in force.” Since Section 775.11 had not been repealed, the court decided that the procedures which it outlined had to be given effect “insofar as the procedures are concerned for the imposition of enhanced punishment in the normal recidivist situation.” Finally, the court concluded that, “save for the specific mention of the now repealed §§ 775.09 and 775.10,” Section 775.11 made sense when read in pari materia with the new Section 775.084.

As indicated above, the District Court of Appeal, First District, after acknowledging conflict with Wright, supra, determined that Section 775.11(1) was designed only “to afford an opportunity for the State to seek the extended term of commitment provided for by § 775.084 when, through oversight, the fact of the previous conviction did not appear or become known to the court or prosecutor until ‘after sentence or conviction’ for the subsequent offense.” The court concluded that the repeal of Section 775.11, effective October 1,1975, “evidences legislative intent that the provisions of § 775.084, which continues in effect, be utilized in accordance with due process of law independent of former § 775.11.”

A superficial analysis of this rather knotty problem of statutory construction suggests that Section 775.11 is designed to provide a means of penalizing a defendant under Section 775.084 when the fact of eligible prior convictions is made to appear subsequent to the trial court’s original sentence for the later offense. Such an analysis would provide a means of allotting the statute some vitality (prior to its 1975 repeal) yet avoiding the unfortunate consequence of subjecting all recidivist sentencing hearings to the “archaic” and “cumbersome” procedures outlined therein. However, the statute’s use of the disjunctive “or” between “sentence” and “conviction” makes this approach less tenable, and we cannot in intellectual honesty pursue this course.

On the other hand, we cannot persuade ourselves that any conclusion other than that the Legislature simply neglected to repeal Section 775.11 in 1971 does justice to the parties in the instant ease. Sections 775.09, .10, and .11, Florida Statutes, were clearly a tripartite “package” from the date of their enactment as Chapter 12022, Laws of Florida (1927), until their partial repeal in 1971. That this is the casé is clearly demonstrated by the connection between Sections 2 and 3 of the 1927 enactment:

“Sec. 2. Punishment for fourth conviction of felony: A person who after having been three times convicted within this State of felonies or attempts to commit felonies, or under the law of any other State, government or country Of crimes which, if committed within this State, would be felonious, commits a felony within this State shall be sentenced upon conviction of such fourth or subsequent offense to imprisonment in a State prison for the term of his natural life. A person to be punishable under this and the preceding section need not have been indicted and convicted as a previous offender in order to receive the increased punishment therein provided, but may be proceeded against as provided in the following section:
“Sec. 3. If at any time either after sentence or conviction it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in Section 1 or Section 2 it shall be the duty of the Prosecuting Attorney . . .

Of course, for 44 years thereafter Sections 2 and 3 were respectively Florida Statutes Sections 775.10 and .11. The use of the colon to connect these statutes further suggests the artificiality of the substance-procedure dichotomy by which the Second District Court of Appeal sought to save 775.11 after the repeal of its companion statutes. That the Legislature intended the repeal of Section 775.11 is further evidenced by the references in the 1971 and 1973 versions to the repealed companion statutes. What better evidence of legislative oversight could be imagined?

We are mindful of our duty to give effect to legislative enactments despite any personal opinions as to their wisdom or efficacy. No principle is more firmly embedded in our constitutional system of separation of powers and checks and balances. But we cannot construe statutes in pari materia when to do so leads to absurd results which are at variance with other indi-cia of legislative intent. This is the situation with which we are faced in the instant case, and it is our duty to the people of Florida to make the best sense out of such legislative entanglements when they arise.

Accordingly, we hold that the trial court did not err in failing to follow the procedures of Section 775.11, Florida Statutes (1973), and the writ of certiorari is discharged.

OVERTON, C. J., and ADKINS, ENGLAND and HATCHETT, JJ., concur.

ROBERTS (Retired), J., concurs in judgment.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I respectfully dissent to the majority opinion and would adopt the statutory construction stated in Wright v. State, 291 So.2d 129 (Fla. 2d DCA 1974).

Section 775.084 contained in both the statutes of 1973 and 1975 permits judges to impose criminal penalties for being habitual criminals. Section 775.11 in the 1973 and 1975 statutes provided the same constitutional standards for a fair trial as in other criminal proceedings. Since both 775.084 and 775.11 related to the same subject matter, the court should have construed them in pari materia to require the State to comply with both statutes. It is elementary that conflicts and uncertainties in criminal statutes must be resolved against the State and for the accused.

To a person who receives an enhanced sentence under Section 775.084 it makes little difference that habitual criminality is not defined as a criminal offense. He spends additional time behind bars because a judge has determined that he is the same person as the person who committed the prior offense. Identity is a factual question. For that reason, I believe the person accused of habitual criminality is entitled to a jury trial and the full panoply of “fair trial” rights guaranteed by the Sixth Amendment to the United States Constitution. To hold otherwise would be to ignore the requirement of equal protection of the laws mandated to the States by the Fourteenth Amendment to the United States Constitution.

Equal protection of the law prohibits the Legislature and the courts from granting jury trials and other “fair trial” rights to persons accused of certain crimes and denying them to those accused of being habitual criminals. If the majority opinion correctly interprets the legislative intent, Section 775.084, as it now exists without Section 775.11, is clearly unconstitutional. A person whose liberty is taken by the State should have the comfort of knowing he has been tried by due process of law.

The District Court of Appeal opinion should be quashed and the cause remanded for a new trial under standards of Section 775.11, Florida Statutes. Furthermore, this Court should alert the Legislature to the constitutional deficiency created in the present recidivism sentencing procedure by the recent repeal of Section 775.11.

Equal justice under law requires more than technical explanations from courts as to why one man receives a fair trial while it is denied to another.

      . However, that court did not overlook the awkward consequences of its holding. “Now we observe here that the procedures under said § 775.11 may well be archaic and cumbersome and that the legislature in the upcoming session may well wish to reconsider its failure in 1971 to repeal that section when it sought to streamline the recidivism concept by enacting § 775.-084, supra." 291 So.2d at 121.


author: SUNDBERG, Justice.

text:
    STATE of Florida, Appellant, v. Bobby Dean HELMS, Appellee. In re Forfeiture of ONE 1973 CHEVROLET EL CAMINO et al.
    No. 49870.
    Supreme Court of Florida.
    Feb. 25, 1977.

      Robert L. Shevin, Atty. Gen., J. Robert Olian, Asst. Atty. Gen., Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for appellant.
    Robyn Greene of Greene & Cooper, Miami, for appellee.
   SUNDBERG, Justice.

This cause was transferred to us by the District Court of Appeal, Third District, because of the existence of an apparent constitutional issue. We find there is no need to address the asserted constitutional issue. We affirm the trial court in his finding that it was improper to require a forfeiture of the automobile. At the hearing, both parties offered evidence relevant to whether the automobile was “used in the commission” of the offense charged. Based on the evidence received, the trial court resolved the issue against the State. However, in view of the concession in this Court by the State that the seized and forfeited tape player was, in fact, a part of and an accession to the automobile, we reverse that portion of the trial court’s judgment and rule that forfeiture of that article should not be allowed.

Accordingly, the judgment of the Circuit Court for Dade County is affirmed in- part and reversed in part, and this cause is remanded to the trial court for proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and ENGLAND, HATCHETT and KARL, JJ., concur.

BOYD, J., dissents.


author: KARL, Justice. ENGLAND, Justice,

text:
    STATE of Florida, Appellant, v. Jonathan F. WERSHOW et al., Appellees.
    No. 50077.
    Supreme Court of Florida.
    Feb. 25, 1977.

      Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Eugene T. Whit-worth, State Atty., and William E. Whitley, Asst. State Atty., for appellant.
    Henry L. Gray, Jr., of Chandler, O’Neal, Gray & Lang, Fletcher N. Baldwin, Jr., Gerald T. Bennett and Wayne M. Carroll, Gainesville, for appellees.
   KARL, Justice.

This cause is before us on direct appeal from an order of the County Court for Alachua County declaring Section 839.11, Florida Statutes, unconstitutionally vague and granting the motions to dismiss the indictment against the appellees. Jurisdiction vests in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellees, County Commissioners of Ala-chua County, were charged by indictment with twenty-one counts of malpractice in office, each count charging violation of Section 839.11, Florida Statutes. The penal statute provides:

“839.11 Extortion and malpractice generally. — Any officer of this state who willfully charges, receives or collects any greater fees than he is entitled to charge, receive, or collect by law, or who is guilty of any malpractice in office not otherwise especially provided for, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.” (emphasis supplied)

The charges against the appellees do not involve the willful charging, receiving or collecting of fees greater than authorized by law. Their offenses fall within that portion of the statute which purports to punish “malpractice in office not otherwise provided for.”

Charged violations included, inter alia, approving or voting to approve the purchase of new voting machines without taking competitive bids or having the Chairman of the Board of County Commissioners certify to the Department of State that the situation and conditions required an exception to the competitive bidding law; failing to keep and maintain adequate records, or failing to see that- adequate records were kept and maintained, regarding the use of county funds; approving the misappropriation of trust money of the Public Facilities Authority as loans to Alachua County; approving the misappropriation of construction trust funds to pay current obligations of Alachua General Hospital; failing to provide written guidelines to Alachua County Business Services Department employees regarding their duties and responsibilities; permitting, or failing to supervise properly their staff who permitted, contractors of certain capital projects for Alachua County to go without performance bonds to indemnify the Board of County Commissioners of Alachua County against loss; and authorizing the use of funds from the State Mosquito Control Fund for other purposes during the fiscal year 1973-1974.

Motions to dismiss the indictment were filed by appellees who alleged that Section 839.11, Florida Statutes, upon which all counts of the indictment are based, is vague, indefinite and uncertain in its terms and, thereby, denies them due process of law as guaranteed by Article I, Section 9, Florida Constitution, and the Fourteenth Amendment to the United States Constitution; that the statute is being selectively enforced; that the charges in the indictment contain no allegations that appellees willfully or corruptly failed to perform any duty imposed upon them by law; that the charges in the indictment contain no allegations that the defendants intentionally and maliciously, or voluntarily, unlawfully, or without justification or excuse failed to perform any duty imposed upon them by law; that the statute of limitations had run on several of the counts; and that the indictment does not charge any offense under the laws of this state.

Finding that the portion of Section 839.-11, Florida Statutes, under which the defendants are charged is vague, indefinite and uncertain in its terms and is, therefore, unconstitutionally violative of the due process clauses of the Florida and federal constitutions, the trial court dismissed the indictment against appellees and reasoned:

“Reduced to its essential language, the statute says that ‘any officer of this state who is guilty of any malpractice in office not otherwise especially provided for shall be guilty of a misdemeanor of the first degree.’
“The term ‘malpractice in office’ is susceptible of so many different interpretations that it necessarily compels men of common intelligence to guess at its meaning and differ as to its application. It therefore violates the requirements of constitutional due process.”

Appellant urges the court to uphold the validity of the questioned statute by construing it in a manner that will avoid conflict with the Constitution. We recognize that this court has consistently followed the established precept that, if reasonably possible and consistent with constitutional rights, it should resolve all doubts of a statute in favor of its validity. However, we conclude that the subject statute is so vague and overbroad that it is not amenable to such saving construction unless the court is willing to invade the province of the Legislature and virtually rewrite it. Under our constitutional system, courts cannot legislate. Article II, Section 3, Florida Constitution. State v. Egan, 287 So.2d 1 (Fla.1973). Quoting from and relying upon the holding of the decision of the Supreme Court of the United States in Yu Cong Eng et al. v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059, this court, in Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947), stated:

“The court cannot, in order to bring a statute within the fundamental law, amend it by construction.”
“A statute which requires the doing of an act so indefinitely described that men must guess at its meaning violates due process of law.”
“A statute cannot in order to make it conform to constitutional requirements, be given an indefinite' mandatory construction in lieu of the broadly prohibitory meaning indicated by its language.”
“Generally, inclusive terms in a criminal statute cannot be reduced by construction so as to limit its application only to that class of cases which it was within the power of the legislature to enact, and thus save the statute from invalidity.” (emphasis supplied)

To construe Section 839.11, Florida Statutes, as the state here suggests would require an abandonment of judicial restraint. We are unwilling to do so. Appropriately applicable to this discussion is the following excerpt from the dissenting opinion of Justices Roberts, Frankfurter and Jackson in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944):

“. . .to subject to criminal punishment conduct that the court may eventually find to have been within the scope or limitations of a legal doctrine underlying a decision is to satisfy the vital requirement of definiteness through an appearance of definiteness in the process of constitutional adjudication which every student of law knows not to comport with actuality. What the Constitution requires is a definiteness defined by the legislature, not one argumentatively spelled out through the judicial process which, precisely because it is a process, can not avoid incompleteness. A definiteness which requires so much subtlety to expound is hardly definite.”

When construing a penal statute against an attack of vagueness, where there is doubt, the doubt should be resolved in favor of the citizen and against the state. Criminal statutes are to be strictly construed according to the letter thereof. Ex parte Bailey (1897), 39 Fla. 734, 23 So. 552, State v. Buchanan, 191 So.2d 33 (Fla.1966), State v. Llopis, 257 So.2d 17 (Fla.1971), State v. Dinsmore, 308 So.2d 32 (Fla.1975). Discussing generally the construction to be given penal statutes, this court, in Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927), explicated:

“The statute being a criminal statute, the rule that it must be construed strictly applies. Nothing is to be regarded as included within it that is not within its letter as well as its spirit; nothing that is not clearly and intelligently described in its very words, as well as manifestly intended by the Legislature, is to be considered as included within its terms; and where there is such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that which operates in favor of liberty is to be taken. See Ex parte Bailey, supra.”

The requirements of due process of Article I, Section 9, Florida Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States are not fulfilled unless the Legislature, in the promulgation of a penal statute, uses language sufficiently definite to apprise those to whom it applies what conduct on their part is prohibited. It is constitutionally impermissible for the Legislature to use such vague and broad language that a person of common intelligence must speculate about its meaning and be subjected to arrest and punishment if the guess is wrong. The Supreme Court of the United States, in United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876), opined:

“It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.”

The test of vagueness of a statute as being whether the language conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice was succinctly stated by this court in Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934), as follows:

“. . Whether the' words of the Florida statute are sufficiently explicit to inform those who are subject to its 'provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in the opinion above mentioned, ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’
“Such seems to be the test approved by the Supreme Court of the United States. Citation of authorities as to what may be considered the exact meaning of the phrase ‘so vague that men of common intelligence must necessarily guess at its meaning,’ so that certain conduct may be considered within or outside the true meaning of that phrase, or what language of a statute may lie within or without it, would be of little aid to us.
“We must apply our own knowledge with which observation and experience have supplied us in determining whether words employed by the statute are reasonably clear or not in indicating the legislative purpose, so that a person who may be liable to the penalties of the act may know that he is within its provisions or not.” (emphasis supplied)

More recently, this court in State v. Llo-pis, supra, held:

“When exercising its power to declare an offense punishable, the Legislature must inform our citizens with reasonable precision what acts are prohibited. There must be provided an ascertainable standard of guilt, a barometer of conduct must be established, so that no person will be forced to act at his peril. Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947); State [ex rel. Lee] v. Buchanan, 191 So.2d 33, 336 (Fla.1966).”

See also State v. Dinsmore, 308 So.2d 32 (Fla.1975), wherein this court determined Section 112.313, Florida Statutes, to be unconstitutionally vague and indefinite.

No person should be held responsible for conduct which one could not reasonably understand to be prohibited by statute. Not enough emphasis can be placed on the proposition that,

“The vice of vagueness in statutes is the treachery they conceal in determining what persons are included or what acts are prohibited. . . .No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards must appear expressly in the law or be within the realm of reasonable inference from the language of the law.”

Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971). To force one to act at one’s peril is against the very foundation of our American system of jurisprudence.

This court 'considered the subject statute in Ex parte Amos, supra. Amos, the comptroller of the state, was charged with failure to perform his duty in not taking possession of the property and business of a certain bank and retaining it in his possession until its affairs were placed in a sound condition, although, as comptroller, he had reason to believe that the bank was in unsound and unsafe condition. The constitutionality of the statute was not determined. The court concluded, however, that the indictment charged no offense because the conduct with which petitioner was charged involved the discretionary power and judgment of the comptroller, and that error in judgment in such case has not by any statute been made a criminal offense. In discussing the statute, the court opined:

“Now, the word ‘malpractice’ is a broad term. It may mean any professional misconduct or unreasonable lack of skill or fidelity in the performance of'professional or fiduciary duties, evil practice, illegal or immoral conduct, misbehavior, practice contrary to rules, wrongdoing; it may be either willful, negligent or ignorant. See In re Rosenkrans, 84 N.J.Eq. 232, 94 A. 42; 38 C.J. 519.

The Amos definition of malpractice is controlling, and this decision reinforces our view that the statute is so overly broad and vague that it cannot survive constitutional challenge. The penal statute before us would punish any official committing any act within that broad classification.

Indisputably, the Legislature may make certain described activities criminal offenses without requiring that they be committed willfully. In Smith v. State, 71 Fla. 639, 71 So. 915 (1916), this court stated:

“While all common-law crimes consist of two elements — the criminal act or omission, and the mental element, commonly called criminal intent, it is within the power of the Legislature to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer.”

cf. Kirkland v. State, 86 Fla. 130, 97 So. 510 (1923). But by opting to dispense with the necessity for a criminal intent in a penal statute, the Legislature does not avoid, or in any way diminish, the requirement of definiteness.

Measured against the prescribed test of vagueness, we find that the language contained in Section 839.11, to the effect that “. . . who is guilty of any malpractice in office not otherwise especially provided . . . ” does not convey a sufficiently definite warning as to the proscribed conduct that men of common understanding could comprehend and that is vio-lative of the due process clauses of the Florida and federal constitutions.

Since we hold that portion of Section 839.11, Florida Statutes, upon which each count of the indictment is based, to be unconstitutionally vague, indefinite and overbroad, we find it unnecessary to resolve the remaining issues posed by Appellant.

Accordingly, the judgment of the trial court granting the motions to dismiss the indictment is hereby affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

I cannot agree with my colleagues’ invalidation of Section 839.11, Florida Statutes (1975). That drastic action is neither warranted in this case nor, as oral argument before our Court made clear, seriously urged upon us by the appellees.

• The state contends that all of the duties which the 21-count indictment alleges have been neglected or breached by appellees are mandatory duties imposed on county commissioners by specific provisions of Florida law. Of course, each commissioner has sworn to uphold the law and to perform his commission duties “well and faithfully”. The state asserts, quite simply, that the notion of constitutional “vagueness” could not possibly pertain to county commissioners charged with acts of “malpractice” which consist solely of a disregard or breach of their statutory responsibilities. A “reasonable and prudent man” standard for motor vehicle violations was found not to be vague in Smith v. State, 237 So.2d 139 (Fla.1970), and the state suggests that a like standard applied to elected public officials would surely make evident that “malpractice in office” at least means a breach or neglect of statutory responsibilities.

Counsel for the appellees conceded during oral argument that the statute could withstand constitutional scrutiny if “malpractice in office” were construed to mean only mandatory duties prescribed by statute. This concession not only brought the parties together on the validity of the statute, but it provided the means to harmonize the asserted conflict between Ex parte Amos, 93 Fla. 5,112 So. 289 (1927), and Kirkland v. State, 86 Fla. 130, 97 So. 510 (1923).

Appellees, whose first goal, understandably, is to win their lawsuit, really ask us to quash the indictment against them because it fails to allege willfulness or a breach of fiduciary duty accompanied by the receipt of some personal benefit from the alleged acts. These assertions explain their reliance on Amos and their rejection of Kirkland. In Amos we said:

“The word ‘malpractice’ . . . refers to misconduct not necessarily willful in character but constituting a breach of fiduciary duties for a monetary or other unlawful consideration or purpose.
The case of Kirkland v. State, 86 Fla. 130, 97 So. 510, is not inconsistent with this view.”

I believe with the majority that the element of willfulness is not essential to this crime, but I also believe the elements required by Amos must be alleged. I would, therefore, remand this ease to the trial judge to consider pending motions on the sufficiency of the indictment in light of our adherence to the standards in Amos, as well as the need to allege a neglect or breach of mandatory statutory duties as required by Kirkland.

      . We note that Article IV, Section 7, Florida Constitution, delegates broad powers to the Governor and the Senate in suspending and removing state and county officers for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform his official duties, or commission of a felony. In State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129 (1934), this court defined the offenses. The constitutional offenses are subject to the same criticism that is leveled against “malpractice” in Section 839.11, Florida Statutes. However, we perceive the test to be much less severe where the maximum penalty is loss of an office or position. Penal statutes must meet a higher test of specificity.

      . Article II, Section 5(b) of the Florida Constitution provides:
      “Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm:
      T do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am now about to enter. So help me God.’

      . 93 Fla. at 17, 112 So. at 293.

      . Smith v. State, 71 Fla. 639, 71 So. 915 (1916).


author: OVERTON, Chief Justice. BOYD, Justice, ROBERTS, Justice (Retired),

text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. LEADERSHIP HOUSING, INC., and Leadership Communities, Inc., Appellees.
    No. 47440.
    Supreme Court of Florida.
    March 3, 1977.

      Robert L. Shevin, Atty. Gen., and Sydney H. McKenzie, III, Chief Trial Counsel, Tallahassee, for appellant.
    Richard H. Hunt, Jr. and Samuel C. Ull-man, of Smathers & Thompson, Miami, for appellees.
    Brian C. Ellis, of Holland & Knight, Tampa, for Associated Industries of Florida, Inc., amicus curiae.
    James E. Messer and Mitchell B. Haigler, Jr., of Thompson, Wadsworth, Messer & Turner, Tallahassee, for Morris Trading Corp., amicus curiae.
   OVERTON, Chief Justice.

This cause is before this Court on direct appeal from a circuit court judgment which declared unconstitutional provisions of Chapter 220, Florida Statutes (1975). We have jurisdiction.

The issue concerns the validity of the state corporate income tax upon increases in the value of capital assets which occurred prior to November 2, 1971, but were not realized by the sale or transfer of the capital assets until after the effective date of the corporate income tax constitutional amendment and the enactment of the Florida Income Tax Code. We reverse, holding that appreciation in value of a capital asset is not income until it is realized from a sale, exchange or other disposition of the asset, and that the present Florida corporate income tax on such capital gain is constitutional and proper.

The voters of Florida adopted in 1924 a constitutional provision prohibiting any state income tax. That provision remained effectively unchanged until November 2, 1971, when the Florida Constitution was amended to permit imposition of a tax on the income of other than natural persons. Following the amendment, the Florida Legislature enacted the Florida Income Tax Code, Chapter 220, Florida Statutes (1975), which imposed an income tax commencing January 1, 1972, on other than natural persons.

The corporate appellees commenced this action as a suit for declaratory and injunc-tive relief, seeking a declaration that their capital gains from appreciation of real estate accruing prior to the 1971 constitutional amendment and the enactment of the taxing legislation were constitutionally protected from taxation.

Appellees asserted first that the constitutional prohibition against the taxing of income existing prior to November 2, 1971, precludes the taxation as income of all appreciation in the value of assets accruing prior to that date. Second, the appellees asserted that the levy of an income tax by the State of Florida upon capital appreciation which accrued prior to November 2, 1971, but was realized after that date constitutes harsh, arbitrary, and oppressive taxation in violation of the Due Process Clauses of the Florida and Federal Constitutions.

The trial court agreed with the appellees’ contentions and granted summary judgment, holding:

***** *
“2. The express constitutional prohibition against a state income tax, which was contained in the Florida Constitution until prospectively amended out on November 2, 1971, also prevents any Florida income tax upon increases in the value of property which occurred prior to November 2,1971, even though such increases in value might be realized through a sale or other taxable transfer of such property after the effective date of the Florida Income Tax Code, Chapter 220 of the Florida Statutes.
“3. The State of Florida did not have the constitutional power to enact a tax on income prior to November 2, 1971. Ap-predation in the value of property which occurred prior thereto continues to be constitutionally protected from taxation as income. The imposition of a tax upon such appreciation as income constitutes the retroactive operation of an income taxing statute, which retroactive operation impairs constitutionally vested rights without due process of law in violation of Amendment XIV, Section 1 of the Constitution of the United States of America, and Article I, Section 9 of the Constitution of the State of Florida.” [Emphasis supplied]

The trial court enjoined the Department of Revenue from levying income tax on the gains at issue, and it allowed the plaintiffs to exclude or deduct gains from their income in

“an amount equal to the fair market value of such property as of November 2, 1971, for the purpose of restoring that amount to the Plaintiffs free of any Florida income tax.”

From that judgment the State Department of Revenue brings this appeal.

The appellees’ first contention of unconstitutionality is based on their assertion that the constitutional income tax prohibition in effect from 1924 to 1971 was intended to apply to all income in the broadest sense of the term’. They argue appreciation in the value of property is such income, and that the authors and adopters of the constitutional prohibition intended that anything that partook of the nature of income would be protected from taxation. The appellees admit that the effect of their construction and the trial court’s order would allow the Legislature to tax as income unrealized accretions in value to capital assets occurring after November 2, 1971, but they assume that the Florida Legislature would decline to tax it.

We realize some authorities suggest appreciation constitutionally may be taxed as it accrues. See 1 Surrey & Warren, Federal Income Taxation, 816-18 and 822-32 (1972); Lowndes, Current Conceptions of Taxable Income, 25 Ohio St.L.J. 151 (1964). Nevertheless, we decline to hold that appreciation as it occurs is income. Such a holding might well be a tax benefit for the appel-lees, but it could be a tax liability for many others. The appellees’ theory would also radically alter the cost bases of many capital assets, requiring such to be changed to the fair market value of the assets on the date of the removal of the constitutional prohibition, or the date of the statutory enactment of the Code. Unlike Section 1053 of the Internal Revenue Code, 26 U.S.C. § 1053, and its predecessors, which awarded cost bases in such assets equal to the greater of either the actual cost of the asset or its fair market value as of the effective date of the first taxing statute, a judicial decision here would not automatically incorporate the option afforded by Congress in selecting the greater of the two bases. The practical effect of the judicial decision asked for by the appellees could require a downward valuation of assets which had depreciated, imposing greater tax liability on some taxpayers.

The entire issue in this case turns on the meaning of income with respect to capital appreciation. Economists and legal scholars are unable to agree whether appreciation in value of a capital asset is income to the asset holder as it accrues or later when it is realized by separation from capital. Compare, e. g., Lowndes, Current Conceptions of Taxable Income, supra, and H. Si-mons, Personal Income Taxation 88 (1938), with Mullock, The Constitutional Aspects of Realization, 31 U.Pitt.L.Rev. 615 (1970), and Seligman, 9 Am.Econ.Development 517 (1919).

The appellant contends that appreciation in value of capital assets is not income until it is realized at the time of disposition, adopting the definition of income in Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920).

We agree and find the proper interpretation is that capital appreciation is not true income until it has been separated from its capital. The separation from capital referred to as the doctrine of “realization” may occur on the receipt of money, other property or rights, or when some other economic benefit is enjoyed by the asset holder. This construction and interpretation follow some economists’ theory of the relation of capital to income, specifically that the former is likened to the tree or the land and the latter the fruit or the crop. We approve of the appellant’s reliance on Eisner v. Macomber, supra, and its concept of when capital appreciation becomes income. The definition contained therein is as follows:

“. . . ‘Income may be defined as the gain derived from capital, from labor, or from both combined,’ provided it be understood to include profit gained through a sale or conversion of capital assets .
“. . . [It is] not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being ‘derived/ that is received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal; — that is income derived from property. Nothing else answers the description.” 252 U.S. at 207, 40 S.Ct. at 193.

We recognize that the Eisner doctrine and definition has been developed to include as realized income such things as (1) the value of a lessee-erected improvement on realty upon reversion of the realty to the lessor, Helvering v. Bruun, 309 U.S. 461, 60 S.Ct. 631, 84 L.Ed. 864 (1940); (2) interest coupons detached from bonds and given as a gift, Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940); (3) property transferred by a husband to his wife in a property settlement connected with divorce, United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962). All the aforementioned circumstances constituted events upon which economic gains were enjoyed at the time of the events. No assertion is made in these cases that appreciation in and of itself is taxable. We reject appellees’ arguments that the appreciation became immunized from income taxation as it accrued by the Florida constitutional prohibition. We hold that bare appreciation is not income subject to income taxation. The citation by the United States Supreme Court to Eisner v. Macomber and its concept of realization recently in Ivan Allen Company v. United States, 422 U.S. 617, 633, 95 S.Ct. 2501, 45 L.Ed.2d 435 (1975), further convinces us of the correctness of this position. We believe the realization doctrine is the fairest for all taxpayers.

The second point asserted by the appel-lees is their contention that the tax is harsh and arbitrary. Holding as we do that there is no income until realization, this argument is without merit.

In summary, we hold that appreciation becomes income only upon the sale, exchange, or other disposition of the capital asset together with the accretions thereto, and that such realized gain is income in the year of disposition regardless of when it accrued.

We reverse the trial, court, uphold the constitutionality of Chapter 220 as it pertains to the taxation of capital gains accruing prior to November 2, 1971, and dissolve the injunctive order issued by the trial court in this cause.

It is so ordered:

SUNDBERG and HATCHETT, JJ., and MILLS, District Court Judge, concur.

BOYD, J., concurs specially with an opinion.

ROBERTS (Retired), J., dissents with an opinion, with which ADKINS, J., concurs.

BOYD, Justice,

concurring specially.

The dissenting opinion sounds plausible, but those arguments were considered and rejected by the Florida Legislature in 1971 shortly after the income tax amendment to the Constitution was adopted. We are here confronted with the question of whether the law violates the Constitution. I think it does not.

Appellees do not cite any federal or state cases constituting binding precedent to prevent imposition of the tax as enacted by the Legislature. They argue that since many corporations acquired capital assets prior to November 2, 1971, when such income taxes were prohibited by the Florida Constitution, the state is morally and equitably bound not to tax income resulting from increased value prior to that time. I find no basis of estoppel and unfairness here sufficient to enjoin enforcement of the statute. In City National Bank of Clinton v. Iowa State Tax Commission, 251 Iowa 603, 102 N.W.2d 381, 388, substantially the same question was resolved in favor of the state, wherein the Court said:

“It must be conceded that while capital gains were not included as income in our income tax law prior to January 1, 1955, yet the exclusion was little more than an exemption, and the public should have been aware that such exemption could be removed at any session subsequent to the enactment of the income tax law in 1934.”

In that case they were dealing with a statute. Here we are considering constitutional provisions. I really see little difference, since both statutes and constitutions can be changed.

In 1930, the section in which the prohibition appeared was amended, but only to permit the Legislature to impose inheritance or estate taxes, to the extent of a credit which might be provided under federal estate tax laws for estate taxes levied and collected by the states. In 1968, the people of Florida adopted a revision of the Florida Constitution. Under that revision, the section containing the income tax prohibition was renumbered, and the language was modified so as to give the Florida Legislature the authority to levy a state income tax, but not in excess of any credit against federal income taxes which might be enacted by Congress in the federal income tax laws. Since the bills then pending in Congress to enact such a federal income tax credit failed, the constitutional condition precedent did not occur, and, thus, the 1968 change in the language of the Florida Constitution has never been given effect.

Although the 1924 amendment prohibited an income tax, appellees should have been aware from the above constitutional changes that the provisions against such taxes were not perpetually frozen in stone. There is simply no basis for this Court to impede the operation of the statute as written.

The critical constitutional determination in this case is that appreciated value accrued by capital assets is not income. Only if the asset is disposed of as contemplated by the statute is income realized. The tax is upon the income as opposed to being upon the capital asset. It is similar to taxing fruit extracted from trees, but without taxing either the trees or land.

If the consequences of this suit should be limited to the parties and property involved in this litigation, the determination of same by this Court would be less difficult, but this decision will establish a precedent for countless other similar situations. Changing circumstances relating to capital assets due to passing time will render it more difficult as the years pass to determine the true value of property existing in 1971 and to determine increases accruing between that time and the time of the disposition of the property contemplated by the statute. Modifications arising from such matters as market trends, population shifts, zoning, traffic and structural alterations would make it extremely difficult to arrive at the 1971 value years hence. A more reasonable and practicable approach is that espoused by the appellant. Finding no constitutional deficiency in the statute, I am compelled to join in the majority opinion.

ROBERTS, Justice (Retired),

dissenting.

I am concerned with the validity vel non of the Florida Corporate Income Tax Act, Ch. 220, Fla.Stat., insofar as it may be interpreted as imposing an income tax upon a corporation’s capital gain based upon appreciation in the value of its property accruing prior to November 2, 1971.

In declaratory judgment proceedings instituted by the plaintiff-corporations, appel-lees here, in the court below, the court sustained the plaintiffs’ attack upon the validity of the Act and permanently enjoined the defendant, the Department of Revenue of the State of Florida, from “levying, imposing upon or collecting from the Plaintiffs, directly or indirectly, any Florida income tax upon gain resulting from the sale or other taxable transfer of their property, to the extent that such gain represents appreciation in the value of such property occurring prior to November 2, 1971.” This appeal by the Department followed. We have jurisdiction of the direct appeal under Section 3(b)(1), Article V, Florida Constitution.

The rationale of the lower court’s opinion and judgment was that the express constitutional prohibition against income taxes adopted by the people of this state in 1924 (carried forward in the 1968 Florida Constitution as Section 5, Article VII) prevented the imposition of an income tax based upon increases in the value of property, so that the Legislature’s imposition of an income tax on corporations as authorized by an amendment to Section 5, Article VII, supra, adopted November 2, 1971, could not, consistent with due-process requirements of our state and federal constitutions (Section 9, Article I, Florida Constitution, and Section 1, Fourteenth Amendment, United States Constitution), operate retroactively to tax property appreciation occurring prior to November 2, 1971, even though the sale or other transfer of such property which “triggered” the income tax on capital gain for federal income tax purposes (and for the Florida corporate income tax as well, see Section 220.02(4)(a), Florida Statutes) did not occur until after that date.

The judicial decisions heretofore rendered by this Court touching upon constitutional interpretation, in general, and the construction to be given the income-tax prohibition, in particular, abundantly support the judgment here reviewed.

No better expression of the rule with respect to constitutional interpretation can be found than that in Amos v. Mathews, 99 Fla. 1, 18, 126 So. 308, 316 (1930), as follows:

“The object of constitutional construction is to ascertain and effectuate the intention and purpose of the people in adopting it. That intention and purpose is the ‘spirit’ of the Constitution — as obligatory as its written word. That spirit, however, cannot consist of mere sophistry nor of fanciful or conjectural theory. It must be found in those implications and intendments which clearly flow from the express mandates of the Constitution when considered in the light of circumstance's and historical events leading up to its adoption, from all of which the purpose of the people in adopting it is to be gleaned.”

And in Fairbank v. U. S., 181 U.S. 283, 21 S.Ct. 648, 45 L.Ed. 862, quoted with approval in Amos v. Mathews, supra, it was said:

“Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit, and cannot be evaded by any legislation which, though not in terms trespassing on the letter, yet in substance and effect destroy the grant or limitation.”

These principles have been applied by this Court in construing liberally the income-tax prohibition adopted by the people of this state in 1924. Thus, in State ex rel. McKay v. Keller, 140 Fla. 346, 191 So. 542 (1939), the Court struck down a city ordinance purporting to impose a license tax on attorneys but providing for increased levies based on increased receipts. In ruling that the tax was, in effect, a prohibited tax on income, the court noted that, in giving effect to the rights secured by the Constitution, “the courts are required to consider the substance of things and should not be controlled by form or technical procedure.” And in Owens v. Fosdick, 153 Fla. 17, 13 So.2d 700 (1943), it was held that a tax on the right of the beneficiary of a foreign trust to receive the income for life was an unconstitutional tax on income. ' Noting that the question of the validity of the tax should be determined “by its operation rather than by its terminology,” the Court said:

“If in its practical application, therefore, a tax falls upon that which is prohibited by this section of the Constitution of the State it cannot be upheld, no matter in what terminology the taxing statute is couched, or what the Legislature has declared the tax to be. To be guided by any other view is to concede that what may not be done directly because of constitutional restrictions, may be done indirectly by legislative means accomplishing the same result, the Constitution notwithstanding. Fairbank v. United States, 181 U.S. 283, 21 S.Ct. 648, 45 L.Ed. 862. Constitutional prohibitions may not thus be so lightly evaded or circumvented. Their mandates are imperative, and they must be so construed as to give full force and effect to their manifest purpose. City of Jacksonville v. Continental Can Company, 113 Fla. 168, 151 So. 488.”

Accord: Mahan v. Lummus, 160 Fla. 505, 35 So.2d 725 (1948), relying upon Owens v. Fosdick, supra, in disapproving an income tax on the right of a Florida resident to receive income from a trust estate.

It was said by this Court in State ex rel. West v. Butler, 70 Fla. 102, 133, 69 So. 771, 780 (1915), that the words or terms used in a Constitution, which is necessarily dependent upon ratification by the people, “must be interpreted in a sense most obvious to the common understanding at the time of its adoption.” In 1924, when the Florida constitutional income-tax prohibition was adopted, the concept of “capital gain” as a taxable incident under the Sixteenth Amendment to the federal constitution (authorizing Congress to levy a tax on incomes “from whatever source derived, without apportionment among the several States, • . ”), ratified February 25, 1913,' and its implementing legislation, the Federal Income Tax Law of 1913 (imposing a tax on income “from all sources,” including “gains or profits and income derived from any source whatever”), had been in effect for more than ten years. And it cannot be doubted that, in adopting the constitutional prohibition against income taxes, the people of this state intended to prohibit the taxation of increases in capital assets, as well as other gains and profits, as income.

It is common knowledge — and a matter of personal knowledge to this writer — that the constitutional prohibition against taxes on inheritances and on incomes was adopted during the so-called Florida “boom” in order to create a favorable tax climate which would attract large investments of capital in this state. It was intended to encourage capital investments by prohibiting “any income tax whatsoever in this state — whether sought to be imposed against a natural person or a corporation.” In re Advisory Opinion to Governor, 243 So.2d 573, 579 (Fla.1971). To break faith with those corporations (and with natural persons, should the people of this state ever see fit to repeal the income-tax prohibition altogether) who invested their capital in this state in reliance on that constitutional covenant would unquestionably be morally wrong and, in our opinion, legally impermissible as violative of the manifest purpose and intent of the 1924 income-tax prohibition and the constitutional rights therein guaranteed.

While, as contended by the appellant, the tax falls technically upon an incident that occurred after .the effective date of the 1971 amendment authorizing a tax on corporate income, in its practical application, and as a matter of economic reality, it falls upon an increase in the value of property which was constitutionally protected from a capital gains tax at the time it accrued. And it seems clear that this cannot be done for the simple reason, if no other, that “what may not be done directly because of constitutional restrictions, may not be done indirectly by legislative means accomplishing ,the same result, the Constitution notwithstanding.” Owens v. Fosdick, supra, 13 So.2d at 703.

I have not overlooked the “realization of income” concept of Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, and similar cases, relied upon by appellant in support of its contention that the tax in question is in no way a retroactive tax— that the tax is upon realization of income and that the time of accrual of gain is not important. As to this contention it might be said, as did the court in Ivan Allen Co. v. United States, 422 U.S. 617, 95 S.Ct. 2501, 45 L.Ed. 435 (1975), that “we see nothing in the ‘realization of income’ concept of Eisner v. Macomber . . . that has significance for the issue presently under consideration.” The question here is the validity of a Florida income tax based upon appreciation in the value of property that accrued at a time when such a tax was prohibited by the Florida Constitution. Only one of the cases relied upon by appellant, Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L.Ed. 1149 (1918), appears to have involved a tax upon earnings that accrued prior to the effective date of constitutional authorization, and that case may be distinguished. It was concerned with the validity of an income tax upon a cash dividend paid to the stockholder in 1914 out of surplus accumulated prior to March 1, 1913, the effective date of the Federal Income Tax Law — and, presumably, prior to the effective date of the Sixteenth Amendment, February 2, 1913. The court said that, under the Sixteenth Amendment, Congress was authorized to tax as income without apportionment everything that became income in the ordinary sense of the word after the adoption of the Amendment, including dividends received “in the ordinary course” by a stockholder from a corporation, even though they “might appear upon analysis to be a mere realization in possession of an inchoate and contingent interest that the stockholder had in a surplus of corporate assets previously existing.” (e. s.) (It might be noted, parenthetically, that the Act was amended in 1916 to exclude from the effect of the tax any dividends declared out of earnings or profits that accrued prior to March 1, 1913.) The court noted that the stockholder and the corporation were two separate entities and that the stockholder had no right or title to the surplus unless or until the directors, in their discretion, should declare a dividend. Accord: Eisner v. Macomber, supra; Lynch v. Turrish, 247 U.S. 221, 38 S.Ct. 537, 62 L.Ed. 1087 (1918).

It goes without saying that appreciation in the value of property owned by the taxpayer is not an “inchoate and contingent interest” that may or may not be “realized” by the taxpayer. It is sufficiently definite to form the basis for substantial increases in ad valorem taxes based upon increases in the assessed value of the property from year to year, or for a mortgage to secure a loan, or for a financial statement for credit purposes. And in United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962), it was held to be taxable as income to the husband when transferred to the wife as a part of a property settlement agreement in connection with divorce. See also Helvering v. Bruun, 309 U.S. 461, 60 S.Ct. 631, 84 L.Ed. 864 (1940); Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940); Helvering v. Griffiths, 318 U.S. 371, 63 S.Ct. 636, 87 L.Ed. 843 (1943); and James v. U. S., 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961), in which the Supreme Court applied the “realization of income” tax concept in various contexts involving economic benefit to the taxpayer other than the taxpayer’s personal receipt of money or property.

That the constitutional power to tax appreciation in value to the taxpayer’s property (as distinguished from the “inchoate interest” of a stockholder in surplus or undivided profits) prior to the actual statutory authority to tax is a sine qua non to the validity of the tax was made clear, we think, in McLaughlin v. Alliance Ins. Co. of Philadelphia, 286 U.S. 244, 52 S.Ct. 538, 76 L.Ed. 1083 (1932). There, the court said:

“The fact that a part of the taxed gain represented increase in value after . [March 1, 1913], but before the present taxing act, is without significance. Congress, having constitutional power to tax the gain, and having established a policy of taxing it [cit. om.], may choose the moment of its realization and the amount realized, for the incidence and the measurement of the tax. Its failure to impose a tax upon the increase in the value in the earlier years, assuming without deciding that it had the power, cannot preclude it from taxing the gain in the year when realized, any more than in any other case, where the tax imposed is upon realized, as distinguished from accrued gain. . . .” (e. s.)

And in all of the cases from state courts, cited by appellant, upholding the validity of a state income tax based upon capital appreciation accruing prior to' the effective date of the statute imposing the tax, there was no constitutional prohibition that would prevent the imposition of the tax in question. (In fact, among all the fifty states, only Florida’s constitution contained a blanket prohibition on the taxation of income, according to Prentice Hall, State and Local Taxes, All States Unit, Par. 101, 1969.) See Fidelity & Columbia Trust Co. v. Reeves, 287 Ky. 522, 154 S.W.2d 337 (1941); Fullerton Oil Co. v. Johnson, 2 Cal .2d 162, 39 P.2d 796 (1934); Kellems v. Brown, 163 Conn. 478, 313 A.2d 53 (1972); Norman v. Bradley, 173 Ga. 482, 160 S.E. 413 (1931); Shangri-La, Inc. v. State, 113 N.H. 440, 309 A.2d 285 (1973); and Tiedemann v. Johnson, 316 A.2d 359 (Me.1974). And it is noteworthy that in the only state case in which a quasi-constitutional inhibition — based on a judicial decision declaring an income tax unconstitutional — existed, the court ruled that the new tax statute was not intended to apply retroactively to capital gains which had accrued prior to the effective date of the new tax statute — apparently to avoid an interpretation that would raise doubts as to the statute’s validity. See Thorpe v. Mahin, 43 Ill.2d 36, 250 N.E.2d 633 (1969).

The Legislature’s purpose and intent in adopting the taxpayer’s federal income tax return as the basis for the Florida tax in order to simplify the collection of the Florida tax — and thereby minimize the expense to the Department of Revenue and the taxpayer — is understandable. And, concededly, the appellees had no vested right to a continuation of the constitutional income tax prohibition, should the people of this state see fit to repeal it as to corporations. However, for the reasons noted above, their constitutional right to be free of income taxes pending the repeal extends as much to property appreciation upon which a capital gain is based as to rents and profits derived from such property. As noted in Board of Commissioners v. Forbes Pioneer Boat Line, 80 Fla. 252, 86 So. 199 (1920), the term “vested rights” within the protection of the due process clauses of the state and federal constitutions

“. . . is not used in any narrow technical sense, or as importing a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbitrarily without injustice.”

Nor can it be said that the corporate taxpayers of this state should have been reasonably forewarned that unrealized prior gains could be subjected to an income tax at some future date — a test sometimes applied in rejecting a taxpayer’s contention that a particular tax which operates retroactively is so unjust and oppressive as to violate due process. See City National Bank of Clinton v. Iowa State Tax Com’n., 251 Iowa 603, 616, 102 N.W.2d 381, 388 (1960), and cases cited. In that case, the court was concerned with the Iowa income tax law adopted in 1934, which expressly excluded capital gains from the tax, and with an amendment to that law adopted in 1955 which imposed the tax on capital gains and, like Florida’s tax law, adopted the federal income tax law as the basis for taxing income, including capital gains. Significantly, Iowa had no constitutional prohibition against an income tax. In ruling that the capital gains accruing during the period when the tax was excluded from the income tax — 1934 to 1955 — could be subjected to the tax, the court said:

“It must be conceded that while capital gains were not included as income in our income tax law prior to January 1, 1955, yet the exclusion was little more than an exemption, and the public should have been aware that such exemption could be removed at any session subsequent to the enactment of the income tax law in 1934. [cit. om.]

A contrary conclusion was reached in State ex rel. Bundy v. Nygaard, 163 Wis. 307, 310, 158 N.W. 87, 88, ruling that taxation of prior gains, even though unrealized, was so unjust and arbitrary as to be void. In holding the capital gain accruing prior to enactment of income tax law to be immune from such tax, the court said:

“When the income tax law was first passed in 1911 the stock in question was held by the plaintiff, [It has been bought 4 years before the income tax law was enacted for $110,000 thus a capital gain of $104,000.] and was then of the value of $214,000. This fact is admitted to be established. In the judgment of the court all of this was capital, or, in other words, property. Its status was fixed. No part of it could be made into income by legislative enactment. It was subject to taxation as property under the uniformity rule, but not otherwise, (bracketed portion supplied)

Unlike the taxpayers in the Iowa case, which the court found not to have been “substantially and wrongfully misled in their belief that under the circumstances existing, accrued capital increases would thereafter be used as the cost basis of such assets rather than the actual cost or the reasonable market value in 1955, or some later date, in computing taxable income”, the Florida taxpayers were entitled to rely upon a constitutional immunization of capital gains from a state income tax which was adopted for the very purpose of encouraging them to invest their capital in this state. And, in our opinion, it would be unfair, unjust, and unreasonable to hold that the taxpayers who accepted this state’s offer of constitutional immunity from income taxes and invested their capital here had no right to rely upon the state’s promises and covenants in this respect — engrafted on to our organic law — and we decline so to do.

For the reasons stated, I respectfully dissent and would affirm the decision of the trial court.

ADKINS, J., concurs.

      . Art. V, § 3(b)(1), Fla.Const.

      . “Sec. 11. No tax upon inheritances or upon the income of residents or citizens of this State shall be levied by the State of Florida, or under its authority . . Art. IX, § 11, Fla. Const. (1924).

      . “§ 5. Estate, inheritance and income taxes,

        "(a) Natural Persons. No tax upon estates or inheritances or upon the income of natural persons who are residents or citizens of the state shall be levied by the state, or under its authority, in excess of the aggregate of amounts which may be allowed to be credited upon or deducted from any similar tax levied by the United States or any state.

        “(b) Others. No tax upon the income of residents and citizens other than natural persons shall be levied by the state, or under its authority, in excess of 5% of net income, as defined by law, or at such greater rate as is authorized by a three-fifths (3/s) vote of the membership of each house of the legislature or as will provide for the state the maximum amount which may be allowed to be credited against income taxes levied by the United States and other states. There shall be exempt from taxation not less than five thousand dollars ($5,000) of the excess of net income subject to tax over the maximum amount allowed to be credited against income taxes levied by the United States and other states.

        “(c) Effective Date. This section shall become effective immediately upon approval by the electors of Florida.” Art. VII, § 5, Fla. Const.

      . We recognize other courts have decided similar issues on different grounds, but the results have not varied greatly. See Norman v. Bradley, 173 Ga. 482, 160 S.E. 413 (1931); City National Bank of Clinton v. Iowa State Tax Commission, 251 Iowa 603, 102 N.W.2d 381 (1960); Shangri-La, Inc. v. State, 113 N.H. 440, 309 A.2d 285 (1973); Kellems v. Brown, 163 Conn. 478, 313 A.2d 53 (1972); Fidelity & Columbia Trust Co. v. Reeves, 287 Ky. 522, 154 S.W.2d 337 (1941); Fullerton Oil Co. v. Johnson, 2 Cal.2d 162, 39 P.2d 796 (1934); Tiedemann v. Johnson, 316 A.2d 359 (Me.1974). But see Thorpe v. Mahin, 43 Ill.2d 36, 250 N.E.2d 633 (1969).