author: ENGLAND, Justice. BOYD, Justice

text:
    Bruce A. SMATHERS, etc., Appellant, v. Chesterfield SMITH, etc., Appellee.
    Nos. 50288 and 50302.
    Supreme Court of Florida.
    Oct. 11, 1976.
    See also, Fla., 338 So.2d 819.

      Robert L. Shevin, Atty. Gen., and William C. Sherrill, Jr., Asst. Atty. Gen., for appellant.
    Warren M. Goodrich, Bradenton, and William H. McBride, Jr., of Holland & Knight, Tallahassee, for appellee.
    Paul W. Lambert, D. Stephen Kahn and Sally G. Munroe, Tallahassee, for interve-nors.
    Arthur C. Canaday, Tallahassee, Allan Milledge, Coconut Grove, and Daniel W. O’Connell, Tallahassee, for amicus curiae.
   ENGLAND, Justice.

We have before us a challenge to a proposed constitutional amendment which was adopted by joint resolution of the 1976 Florida Legislature for submission to the people of the state on November 2,1976. Chesterfield Smith, a citizen, taxpayer and elector of the State of Florida, brought suit in the Leon County Circuit Court seeking to enjoin the Secretary of State from expending state funds and otherwise acting to submit the amendment to the voters at the general election on that date. Select legislators were permitted to intervene for the purpose of presenting legal arguments to the circuit court. That court granted Smith’s motion for summary judgment and enjoined the Secretary of State from submitting the amendment to the voters. Pursuant to Article V, Section 3(b)(1) of the Florida Constitution, an appeal was brought here by the Attorney General on behalf of the state. We reverse the trial court’s order.

By Senate Joint Resolutions 619 and 1398, the 1976 Legislature proposed an amendment to Section 18 of the Florida Constitution’s Declaration of Rights (Article I) which would add the underscored language and cause that section to read:

“SECTION 18. Administrative penalties. — No administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law. Any administrative rule of any agency of the executive branch may be nullified by concurrent resolution of the Legislature on the ground that the rule is without or in excess of delegated legislative authority and may be suspended as provided by law on the same ground; however, by a majority vote of the governor and cabinet the suspension may be deferred until acted upon by the Legislature. Failure of the Legislature to disapprove the suspension at the next regular session shall automatically reinstate the rule.

Smith asserts several reasons why the proposed amendment is improper. He suggests that its language is unclear, its meaning obscure and its purpose too.vague; that the Legislature lacks power to propose as a constitutional amendment a revision of governmental powers as sweeping and broad as he contends this amendment contains; that the amendment would violate the “one person-one vote” guarantee of the Fourteenth Amendment of the United States Constitution; that the notice of the contents of the amendment which would appear on the ballot violates Section 101.161, Florida Statutes (1975); and that the amendment is inadequate to inform the public of the substantial shift in governmental power which it would effect. Smith also contends that the amendment in reality alters the separation of powers guaranteed in Article II, Section 3 of the Florida Constitution, in that it gives to the Legislature authority to exercise an interpretive power previously reposed exclusively in the judiciary.

The Attorney General, of course, refutes all of Smith’s contentions, and further suggests that the defects alleged are in any event not the proper subject for judicial intervention at this stage. This admonition cannot be ignored, and we approach the subject matter of the case mindful of our limited role in reviewing constitutional proposals which have been adopted by the Legislature for direct submission to the people.

“Another thing we should keep in mind is that we are dealing with a constitutional democracy in which sovereignty resides in the people. It is their Constitution that we are construing. They have a right to change, abrogate or modify it in any manner they see fit so long as they keep within the confines of the Federal Constitution. The legislature which approved and submitted the proposed amendment took the same oath to protect and defend the Constitution that we did and our first duty is to uphold their action if there is any reasonable theory under which it can be done. This is the first rule we are required to observe when considering acts of the legislature and it is even more impelling when considering a proposed constitutional amendment which goes to the people for their approval or disapproval.”

It is in that framework that we limit our discussion to the critical issue which is here presented by the parties, and we rest our decision solely on the question of whether the amendment was proposed by the Legislature in conformity with Article XI, Section 1 of the Constitution. That section provides:

“Amendment of a section or revision of one or more articles, or the whole, of this constitution may be proposed by joint resolution agreed to by three-fifths of the membership of each house of the legislature. The full text of the joint resolution and the vote of each member voting shall be entered on the journal of each house.”

Because there is doubt as to whether the Legislature has violated what appear to be strictures on their amendatory powers, we are compelled to sustain this legislative action.

The Constitution of Florida is a document of .limitation by which the people of the state have restricted the forces of government in the exercise of dominion and power over their property, their rights and their lives. In this document the people have provided a scheme for its periodic modification involving four alternatives. In construing any provision of the Constitution this Court is obliged to consider the document as a whole in order to effect its overall purpose. This fundamental rule of construction directs that we consider the four methods of modifying the Constitution in a way which will harmonize them rather than distort them.

The alternatives for amendment are set out in Article XI. First, the people can by initiative amend any “portion or portions” of the Constitution in any way that they see fit, provided that the amendment brought to vote by an initiative petition confines itself to a single subject matter. Second, the people have reserved the power to call a constitutional convention to consider a revision of their “entire” Constitution. Third, they have directed that a constitutional revision commission be convened at regular intervals to propose a “revision” of the Constitution or any “part”, if any be thought desirable, for submission to the voters. These alternatives are not in any way affected by our decision today.

A fourth method for revising or amending the Constitution, which is the one involved here, permits the Legislature to propose an “amendment of a section or revision of one or more articles, or the whole” of the Constitution, at any time. It is immediately apparent that two of three amendatory alternatives given the Legislature — that of amending a “section” and revising an “article” — are tied to locational specificity. No similar limitations are placed on the amend-atory rights which the people reserved to themselves. Initially, then, we must decide whether this distinguishing feature of the amendatory authority given the Legislature has legal significance.

We have consistently held that different words in amendatory articles of the Constitution must be read differently, and each given vitality. Adams v. Gunter, 238 So.2d 824 (Fla.1970); Crawford v. Gilchrist, 64 Fla. 41, 54, 59 So. 963, 968 (1912). The state does not quarrel with this proposition as a general matter, but it argues that it has no place here and that the characterizations in Section 1 are irrelevant because, having been granted three choices by express grant, the Legislature can frame by any name whatever would be valid under any one of them. To limit the Legislature in an attempt to do one when the same objective would have been permissible by an alternative method, we are told, is to elevate form (or semantics) over substance. While this suggestion seems plausible enough, it may overlook too much.

For one thing, if an article revision or a rewrite of the whole Constitution could be characterized, equated with or disguised as a mere section amendment, then the people’s deliberate choice of terms is wholly without significance. Every proposal could be defended as a revision of the whole Constitution, no matter how narrow its purpose or subject matter. A fault with the state’s suggestion, then, is that it seeks total nullification of two of three amendment procedures the people have given to the legislative branch. We, of course, lack judicial authority to rewrite Section 1 of Article XI as the state seems to request.

Another fault in the state’s assertion is that it ignores a very real significance for having three locational limitations on legislative action. The deliberative processes of the Legislature are surrounded by guarantees that the duly elected representatives of the people will know what they are doing when they act in their law-making role. Our Constitution limits their law-making to one subject matter at a time and it requires three separate considerations of each proposed law. These are notice-giving requirements designed to assure knowledgeable law-giving. The state’s suggestion that a proposed section amendment may in reality effect a revision of the entire Constitution completely ignores the even more compelling notice-giving needs which legislators should have for constitutional amendments.

Another fault in the state’s position is that we cannot treat as merely linguistic distinctions the two site limitations on amendment power which the state would have us abrogate — “section” amendments and “article” revisions — because the locational function of each has a distinctive and unique substantive role in our constitutional scheme.

The function of a section amendment is to alter, modify or change the substance of a single section of the Constitution containing particularized statements of organic law. For example, the initiative power in Section 3 of Article XI serves a substantively particularized role which differs from that of constitutional conventions convened under Section 4 of the same article. The function of an article revision is to restructure an entire class of governmental powers or rights, such as legislative powers, taxation powers, or individual rights. When the subject matter being proposed for change goes beyond or is unrelated to the context of the section it purports to change, the proposal cannot be a section amendment. It may be an article revision or a revision of the whole document, but it is not a “section” amendment. The serious business of amending a constitution by lawmakers demands that the functional unity of sections and articles be preserved to the fullest extent possible, so that, first, ambiguities and contradictions be avoided and, second, cumulative confusion be prevented. That the people of Florida have recognized the dangers of mis-amend-ments and expressed their intention to avoid their proliferation is manifest in their mandate for revision commissions on a regular, periodic basis. Their concerns in this regard dovetail naturally with the notion that lawmakers who are asked to consider constitutional changes, and the people who are asked to approve them, must be able to comprehend the sweep of each proposal from a fair notification in the proposition itself that it is neither less nor more extensive than it appears to be.

With these minimal requirements for clear expression and locational specificity in mind, we turn to the proposal before us. The Legislature in Senate Joint Resolutions 619 and 1398 chose to amend a “section” of the Constitution by an amendment which, by the barest margin of relevance, would change, alter or improve the provision it purports to amend. Its subject matter is characterized by the Attorney General in his brief as providing

“legislative overview of executive rules to insure compliance with legislative intent.”

The provision it purports to amend appears in the Declaration of Rights amid a panoply of protections erected to shield individuals from the abuses of governmental tyranny. The limitation on administrative agency penalties has some connection, albeit tenuous, with the sentence now added to allow the Legislature to protect the citizenry from executive branch over-reaching. The functional relevance of one to the other (though minimal) being established, our inquiry of necessity is curtailed. This casual placement of an amendment in the Constitution reaches the outer limit of legislative authority as conferred by the people in Article XI, Section l. Put in other terms, the amendment approaches the borderline of “germanity” to the provision it amends.

Inherent in the amendatory process for the Constitution, by necessary implication, is the same notion of “germaneness” which controls the exercise of amendatory powers for general legislation. In its lawmaking process the Legislature is bound by standards of “germanity” for amendments to all legislation. A concept of germanity, or rationality, for constitutional amendments is clearly essential “to accomplish harmony in language and purpose between articles and to produce as nearly as possible a document free of doubts and inconsistencies.” Were this not so, or were Article XI, Section 1 so elastic as to sanction the addition of wholly unrelated provisions to guarantees of individual liberty, then the rationality of the entire 1968 Constitution would be endangered. The Legislature would be free, for example, to amend Article II, Section 2, relating to the seat of government, with proposals to abolish the cabinet system of Florida government and to expand the length of legislative sessions. Both of these “subjects” are mentioned in that section with only slightly less pertinence than the mention of administrative agencies in Section 18 of the Declaration of Rights. Both the cabinet and the 60 day limit on legislative sessions, however, are expressly addressed elsewhere in, the Constitution. The controls exercisable by the Legislature to insure executive adherence to legislative directives, on the other hand, are merely implied from other provisions in the Constitution.

No persuasive reason has been suggested for permitting wholly random placements of constitutional provisions by legislative amendment. It is not neatness with which the subject of germaneness is concerned; it is respect for the people’s declaration that our organic law shall be free from the confusion and uncertainty in operation which inevitably attend constitutional inconsistencies and ambiguities. The Legislature itself was the first to realize the constitutional requirement of germanity. The notion does not originate here. In its manual of precedents, under the caption “Amendments; Germane”, the House of Representatives demonstrates that a section amendment for the Constitution is to be treated as a different species of proposal than an article revision. We here acknowledge the constitutional significance of what that chamber already requires.

These are serious concerns. We have always required the Legislature to meet the precise limitations which circumscribe legislative amendment powers.

“The people of the state have a right to amend their Constitution, and they also have a right to require proposed amendments to be agreed to and submitted for adoption in the manner prescribed by the existing Constitution, which is the fundamental law. If essential mandatory provisions of the organic law are ignored in amending the Constitution of the state, and vital elements of a valid amendment are omitted, it violates the right of all the people of the state to government regulated by law. It is the duty of the courts in authorized proceedings to give effect to the existing Constitution. The proposal of amendments to the Constitution is a highly important function of government that should be performed with the greatest certainty, efficiency, care, and deliberation.”

We find ourselves obliged to approve the placement of this amendment on the November ballot only because there exists a reasonable basis to view the new sentence as germane to the provision it amends. If the amendment should be adopted by the voters, it may then become our responsibility, in an appropriate case, to harmonize its reach and meaning with other provisions of the Constitution. To attempt at this time an interpretation of the proposal as it relates to other constitutional provisions would be premature.

We have thoroughly analyzed the alleged constitutional defects and find them insufficient as a matter of law to authorize our interdiction. The decree appealed from is reversed, and the injunction against the Secretary of State is dissolved.

It is so ordered.

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

BOYD, J., concurs specially with opinion.

BOYD, Justice

(concurring specially).

I concur in all aspects with the majority opinion except that portion approving the majority view in Adams v. Gunter, 238 So.2d 824 (Fla.1970), to which I dissented. I still feel that the people should have been permitted to vote upon the question of whether to adopt a unicameral Legislature.

Strong and logical legal reasons have been asserted by the litigants in this proceeding as to whether this proposed Amendment embraces too many topics to be considered in a single amendment. Recognizing the merit in both positions, it is my opinion that the doubt should be resolved in favor of permitting the people to vote on the matter. Courts should not restrict the people from expressing their views through the ballot, except in those cases in which the questions presented are clearly prohibited by the Constitution.

In truly democratic nations violent revolutions are prevented by permitting the people to determine the structure and direction of government by popular vote.

The proposed Amendment has been attacked as violative of the separation of powers doctrine in that the Amendment, if adopted, would permit the Legislature to encroach upon the executive branch of government. Since there is no prohibition against such procedure in the federal Constitution, the people have an inherent right to take power from one branch of government and give it to another.

The last sentence in the proposed Amendment provides as follows:

“Failure of the Legislature to disapprove the suspension at the next regular session shall automatically reinstate the rule.”

Obviously, this language is vague and ambiguous and will require subsequent judicial interpretation, should the Amendment be adopted. The inherent right of the people to adopt amendments to the Constitution permit them to adopt vague and ambiguous amendments, as well as those which are easily understood.

      . Gray v. Golden, 89 So.2d 785, 790 (Fla.1956).

      . A decision from this Court must be rendered promptly or the machinery of government will be seriously impaired. We are told that the Secretary of State must print and distribute ballots respecting proposed constitutional amendments not later than October 11, 1976, and obviously must know whether this proposed constitutional amendment is to be included on or excluded from those ballots. On September 23, the trial court rendered its decision enjoining the submission of this proposal to the voters, and the appeal was prosecuted here on an expedited basis. Jurisdiction was temporarily relinquished for the purpose of allowing the circuit court to enter an amended order, which was done on September 29. Briefs were submitted by all parties by October 1, and we heard oral argument October 5. These circumstances necessarily limit both our deliberative and our opinion-writing time. We have considered all of the points raised by Smith and find that, other than the one discussed above, they are without merit and not sufficient to warrant discussion in the time we have available.

      . See Preamble and Art. I, § 1, Fla.Const.

      . See, for example, Barrow v. Holland, 125 So.2d 749 (Fla.1960); Scarborough v. Webb’s Cut Rate Drug Co., 150 Fla. 754, 8 So.2d 913 (1942); Wheeler v. Meggs, 75 Fla. 687, 78 So. 685 (1918).

      . Art. XI, § 3, Fla.Const. And see Weber v. Smathers, 338 So.2d 819 (Fla. 1976).

      . Art. XI, § 4, Fla.Const.

      . Art. XI, § 2, Fla.Const. The Constitution provides for a constitutional revision commission ten years after initial adoption, in 1978, and thereafter at twenty year intervals.

      .A locational limit had been placed on the right of initiative in 1968, limiting amendments to “any section.” Following our decision in Adams v. Gunter, 238 So.2d 824 (Fla.1970), that restriction was removed altogether. See Weber v. Smathers, 338 So.2d 819 (Fla. 1976).

      .The distinction between an “amendment” and a “revision” which was developed in detail in Adams v. Gunter, 238 So.2d 824 (Fla.1970), is not critical here. It shows, however, our great reluctance to write out or blur distinctive constitutional terminology.

      . Art. Ill, § 6, Fla.Const.

      . Art. Ill, § 7, Fla.Const.

      . Unlike mere legislation there is no executive “check” for errors, omissions and inconsistencies. See Art. Ill, § 8, Fla.Const.

      . An “amendment” is “a modification or alteration”, a “change”, or “any writing made or proposed as an improvement of some principal writing.” Black’s Law Dictionary, 106 (4th Rev.Ed.1968).

      . Our much-amended 1885 Constitution was fully revised in 1968 principally because a hodgepodge of disharmonious provisions which had been added over the years had made governance complex, expensive and uncertain.

      . For example, Sections 11 through 22 of Article I, respectively, bar imprisonment for debt, bar unreasonable searches and seizures, preserve the writ of habeas corpus, guarantee bail for certain offenses, guarantee a grand jury for capital crimes, preserve rights of an accused to confrontation, counsel, etc., prohibit cruel and unusual punishments, prohibit imprisonment by administrative agencies, prohibit pre^conviction criminal cost payments, limit treasonable offenses and prosecutions, insure prompt justice and access to courts, and preserve the right to trial by jury. See text accompanying n. 4 above regarding our obligation to construe Article I as an harmonious whole.

      .Contrast, for example, as well within the ambit of legislative power, a proposal on the November ballot to amend Section 12 of Article V, altering by various inclusions and exclusions the procedures affecting the discipline and removal of judges and justices. This “section” amendment was also adopted by the 1976 Legislature.

      . State ex rel. Oglesby v. Hand, 96 Fla. 799, 119 So. 376 (1928); Art. III, § 6, Fla.Const.

      . Adams v. Gunter, 238 So.2d 824, 829 (Fla. 1970). The same notion of germanity would pertain to article revisions, for the same reason. Constitutional adjustments of more-than-article significance, however, pose no need for germanity since they are necessarily revisions to the entire Constitution.

      . Art. IV, § 4 and Art. Ill, § 3(d), Fla.Const.

      . See Art. Ill, § 12 and Art. IV, § 6, Fla.Const.

      . The state’s position would also accommodate the placement of random and unrelated provisions without even the appearance of a nexus. Arguing from its view it would necessarily follow that an article revision, just as a section amendment, need not have topical rationality to fall within the Legislature’s ambit of power. The internal germanity of a proposed article revision stands on no different ground than an article revision which adds irrelevant material to an existing provision. Under this view of Article XI, Section 1, there would be nothing to bar the Legislature from proposing a single amendment which in one section or article would establish unicameral-ism, prohibit forced busing of school children, and bar all forms of taxation on corporate entities formed or domesticated in Florida. Such an aggregation of dissimilar provisions, each individually attractive to a different segment of voters, would exceed legislative power as a section amendment or article revision, being frought with the very evil this Court identified and condemned as to statutory “logrolling” in Colonial Inv. Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930).

      .See Precedents In the Florida House of Representatives (1975) at 148 — 49, quoting from Fla.H.R.Jour. (April 9, 1970) at p. 97:
      “HJR 59 which proposed an amendment to § 2, Article VI, of the State Constitution was pending on an amendment and a substitute amendment.
      Representative Reed offered an amendment to the substitute amendment which added a new section amending § 15, Article III.
      Mr. Lewis, by point of order, questioned the applicability of the amendment on the ground that Mr. Reed sought to amend a section of the Constitution other than the section in the House Joint Resolution under consideration.
      Mr. Reed agreed he was seeking to amend another section of the Constitution but argued this was permissible under Article XI, § 1, of the Constitution as Revised in 1968. The Chair (E. C. Rowell) ruled the amendment by Mr. Reed out of order as not being germane to the matter under debate.
      THE SPEAKER IN THE CHAIR
      Mr. Reed asked the Chair to revisit its ruling, again stating his belief that the revised Constitution permitted the grouping in a joint resolution of matters touching several articles. He said this was what actually had been done in submitting the revised Constitution to the electorate in 1968.
      The Speaker (Frederick H. Schultz) reiterated the Chair’s ruling that Mr. Reed’s amendment was out of order on the following basis: ‘the section of the Constitution reads, “Amendment of a section, or revision of one or more articles of (sic) the whole of this Constitution . . This is not a revision; this is purely the amendment of a section, and therefore your amendment would not be germane in this particular instance.’ Mr. Reed insisted the Constitution should be read in its broadest possible fashion in order to ascribe to it the interpretation which he believed to be the intent of the drafters of Section I of Article XI, and that was that any section, or any portion of a section, or any article, could be revised, amended, or changed by the use of one resolution.
      The Speaker said he agreed with Mr. Reed ‘on the question of a revision of one or more articles. My ruling is based on the fact that this is not a revision of an article. It is the amendment of a section.’ The Speaker again ruled Mr. Reed’s amendment out of order.”
      See also, Precedent 11.7(al), id. at 165, ruling out of order an amendment within the same article but not the same section of the Constitution.

      . Crawford v. Gilchrist, 64 Fla. 41, 53-54, 59 So. 963, 967-968 (1912).

      . We note, however, the state’s assertion in its brief that “the courts have the final say in the interpretation of the constitution. . The Legislature did not intend to change this fundamental rule. . . . The amendment authorizes the legislature to determine if the rule is ‘in excess or without legislative authority,’ but since this would be a constitutional standard, the courts would have the final word as to whether the rule indeed is in excess or without legislative authority.” In like vein the legislator-intervenors state “[t]he courts will have the ultimate authority to pass on whether an agency rule is without or in excess of delegated legislative authority.” We further note that the statute establishing the suspension procedure, which was vetoed by the Governor, is not in issue in these proceedings, and by recognizing the propriety of this amendment to be on the ballot we neither approve nor disapprove any statutory scheme for suspension. Lastly, we note that the power of a legislative committee to suspend agency rules is likewise a premature issue at this time.


source: Caselaw Access Project

author: ENGLAND, Justice. ADKINS, Justice

license: Public Domain

text:
    J. Ed STRAUGHN, Executive Director, Department of Revenue, State of Florida, Appellant, v. Louis F. O’RIORDAN, Appellee.
    No. 47452.
    Supreme Court of Florida.
    Oct. 14, 1976.

      Robert L. Shevin, Atty. Gen., and J. Kendrick Tucker, Asst. Atty. Gen., for appellant.
    Louis F. O’Riordan, in pro per.
   ENGLAND, Justice.

By direct appeal pursuant to Article V, § 3(b)(1) of the Florida Constitution, we are asked to review a declaratory judgment of the Bay County Circuit Court holding Section 212.14(4), Florida Statutes (1973), invalid as an unconstitutional delegation of legislative authority. Appellee has not appeared in this proceeding and appellant has waived oral argument.

In 1973 Louis O’Riordan sought to establish a business in Panama City for which he was required to register with the Department of Revenue for the collection of state sales taxes. Acting under Section 212.-14(4), Florida Statutes (1973), the Department refused to register O’Riordan unless he agreed to post a cash bond of $200 or a surety bond of $1,000. O’Riordan refused and continued to operate his new business. After the initiation of legal proceedings not relevant here, O’Riordan sought declaratory relief in the circuit court, alleging that the bond statute constituted an unconstitutional delegation of legislative power in violation of Article II, Section 3 of the Florida Constitution. The circuit court in Bay County agreed and specifically held the statute unconstitutional. This appeal followed.

In relevant part Section 212.14(4) directs the Department to require a bond from sales tax registrants in “all cases where it is necessary to insure compliance with the provisions of this chapter . . .” A hearing was conducted at which the Department developed evidence as to the guidelines and procedures it uses for determining when to require bonds and in what amounts. The record shows, for example, that the chief of the sales tax bureau considers the financial stability of an applicant to be the primary guide, but that the area supervisor covering the Bay County area “plays it by ear” with his primary emphasis being on length of residence and good character. O’Riordan, in this case, was required to post a bond because he was a new resident without property holdings whose business did not have a large inventory, and because Bay County is in an area of seasonal business. The record also shows that the Department’s application form does not request any information on which the Department relies for bond-setting purposes, having no questions as to financial status, value of property holdings, length of residence, the existence of outstanding money judgments, credit references, or other factors. Based on this record the trial judge concluded that the legislative grant of authority lacked adequate standards and guidelines by which to govern the Department’s unbridled discretion, and was invalid.

In our view, Section 212.14(4) is a constitutional delegation of power to protect the sales tax revenues of the state. It is not the Legislature’s delegation which is improper, but rather the Department’s exercise of that delegated authority. This delegation of authority can be readily classified with others we have upheld which require a factual determination of the fitness of each applicant for a license or similar permit. See, for example, Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947). Cf. Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789, 793 (1919). The problem of arbitrariness which concerned the circuit court is a consequence of the Department’s failure to adopt rules which set out the standards to be applied to each sales tax applicant.

Over the years the Department has established informally guidelines by which its employees could determine whether a bond was “necessary”. To date these guidelines have not been publicly promulgated, although the Department has at all relevant times been subject to the rule-making provisions of the state’s administrative procedure act. Under the act in force at the time O’Riordan sought to register with the Department, a “rule” was defined to mean any

“standard, statement of policy, requirement, procedure, or interpretation of general application . . . adopted by an agency to implement, interpret or make specific the law enforced or administered by it . . . .” Section 120.021(2), Fla. Stat. (1973).

The standards attempted to be applied to O’Riordan were “rules” under the act, and as such were not enforceable against him in the absence of publication in the manner prescribed by law. See Section 120.031(1), Florida Statutes (1973).

The necessity for publication is emphasized by the facts in this case. Here the policies were so informal as to be diverse among Department personnel. Based on the record testimony in this case, it is apparent that the area supervisor for Bay County was attempting to apply the statute to O’Riordan in an arbitrary and totally discretionary manner. For that reason his attempted application of the statute was invalid. We hold, however, that under guidelines properly adopted and uniformly applied, the statute is a valid enactment for a purpose within the Legislature’s power.

We reverse the circuit court’s ruling that Section 212.14(4) is unconstitutional, but we affirm the order below in all other respects.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS, J., dissents with an opinion, with which ROBERTS and HATCHETT, ,JJ., concur.

ADKINS, Justice

(dissenting).

I dissent.

Circuit Judge Larry G. Smith, of the Fourteenth Judicial Circuit, entered a final judgment which contained the following:

“The Plaintiff applied to the local office of the Florida Department of Revenue for registration as a dealer for the sale of tangible personal property. Registration is required by Chapter 212, Florida Statutes. Section 212.14(4), Florida Statutes, provides in part as follows:
“ ‘In all cases where it is necessary to insure compliance with the provisions of this chapter, the Department shall require a cash deposit, bond or other security as a condition to a person obtaining or retaining a dealer’s certificate of registration under this chapter. Such bond shall be in the form and such amount as the Department deems appropriate under the particular circumstances. . .
“Chapter 212, known as the Florida Revenue Act of 1949’, among other things imposes a sales tax, to be collected by the dealer from the customer, the dealer in turn being then required to remit the taxes collected to the Department of Revenue.
“Information is obtained from a potential registrant on a form called ‘Application for Certificate of Registration’. When Plaintiff applied, the manager of the local office obtained from him the information required to fill in the application. Although the application is customarily signed by the applicant, it was not in this case. However, the Defendant Department admits that no request was ever made for Plaintiff to sign the application. Upon completion of the application form, Plaintiff was informed by the office manager that he would be required to post bond in the amount of $200.00 cash, or a surety bond in the amount of $1000.00. The reasons given Plaintiff for the bond requirement were that he was a ‘new arrival’ and that he had ‘no property in the state’. The Plaintiff, being aggrieved, expressed his dissatisfaction and was advised to meet with the Area Supervisor the next day. Plaintiff met with the Supervisor, who took Plaintiff’s $1.00 registration fee and issued a receipt for the same. He then advised Plaintiff that the bond requirements would be as indicated by the office manager.
“The Plaintiff and the Department agree generally upon the reasons given for the bond requirement in Plaintiff’s case. Plaintiff testified that the reasons were that he was a new arrival in the area, had no property holdings in the State, and that the Department had no way of knowing if he would pay the tax money to the State if he collected it. The Supervisor testified that he did not know of Plaintiff prior to that interview, that the Plaintiff was obviously new in town, had no large inventory, was located in an area of seasonal business, and that he had no property holdings in Florida. He further stated that his interview with Plaintiff was not satisfactory, indicating that Plaintiff’s ‘replies were not favorable’, and that ‘every answer was a battle’. The Supervisor further testified that he more or less ‘plays it by ear’ in determining who has to put up bond and who does not, indicating that people who have ‘been here a long time’ and ‘have good character’ would likely not be required to post bond. No point would be served by further detailing the conversations between Plaintiff and the Supervisor. The fact is that the standard application form is totally inadequate to elicit the kind of information the Supervisor states must be relied upon in order to determine whether bond should be required, and if so, the amount. For example, the form makes no inquiry regarding the applicant’s financial status, or the value of any property located in the County or in the State. There is no question as to the applicant’s length of residence in Florida, nor in the local area. No question is asked regarding the existence of money judgments against the applicant, nor his previous employment or experience. There is no question regarding credit references, nor does the Department seek credit information regarding an applicant prior to determining whether to require a bond or not.
“The Area Supervisor admitted that the so-called ‘criteria’ used by the Department in determining bond requirements are not generally known to the public. The Chief of the Sales Tax Bureau for the Department of Revenue in his deposition stated that it is ‘the financial stability’ of the applicant that determines whether there should be a bond. That the bond requirements have not been legally tested previously is evidence only of the conscientious efforts of the Supervisor in attempting fairly to administer the law, rather than evidence of its validity. All the evidence in this case, however, makes it clear to the Court that despite some rather clear and definite criteria which the Department says it uses in determining the bond requirements, the decision is left up to the personal inclination or whim of the Area Supervisor, without the requirement of anything but a token inquiry into the ‘financial stability’ of the applicant, and without standards, guidelines, or procedures which would insure uniformity in the administration of the bond requirement provisions of the law.
“The Court has been furnished with helpful and well prepared briefs, both by the Department of Revenue and by Ami-cus Curiae who was invited by the Court to participate in the case. The Plaintiff’s attack upon the statute is based upon an unlawful delegation of legislative power. He contends that the statute contains no criteria, standards, or guidelines for determination of the bond requirements, leaving the decision simply within the unbridled discretion of the administrators. As against these contentions, the Department of Revenue argues that the statute itself constitutes an adequate guideline; that it sets forth a general policy sufficient to form the basis for administrative discretion; that it would .be impossible to lay down a specific set of standards or guidelines for the exercise of this discretion; and finally, that the so-called ‘personal fitness’ exception to the prohibition against delegation of legislative authority applies in this case.
$ * :J< sj« * *
“Turning to the merits of the case, it is clear that the State could, if it desired, require a bond of every dealer. The statute in question does not require a bond of every applicant, and Plaintiff’s contentions that the statute does not contain adequate standards, guidelines or criteria has merit.
“The Department of Revenue argues, paradoxically, that the Department is in fact bound by certain criteria or guidelines, to satisfy the argument that the statute is vague, ambiguous and indefinite; but at the same time the Department also argues that it would be impossible for the Legislature to spell out adequate standards, guidelines, or criteria. The Department cannot have it both ways. It is true that certain criteria have been developed by the Department, and these have been communicated to the Area Supervisors by telephone, memorandums, and by seminar discussions. These criteria have never been promulgated in the form of rules or regulations of the Department. The Department itself, both in its memorandum of law and in the testimony, suggests adequate reasonable criteria for determining both the necessity for and the amount of the bound [sic]. These include the existence of outstanding money judgments, the past history of payment or non-payment of sales taxes, issuance of worthless checks, detailed information as to the nature, location, history, and type of business, and details as to ownership or equity of the business by the applicant. As to the amount of the bond, the Department itself has developed a ‘rule of thumb’ by which it considers a bond adequate if it is in the amount of estimated tax collections over a three-month period. Parenthetically, the record in this case is totally devoid of any evidence that any inquiry whatever was made of the Plaintiff regarding his estimated tax collections over a three-month or any other period.
“Based upon the foregoing it can hardly be argued that it would be impossible for the Legislature to set forth adequate standards or guidelines to be used by the administrators of the law. The Department appears to argue, as if saying makes it so, that the Legislature has in fact set forth standards or guidelines, when it is quite obvious that the Legislature has not done so.
“It is suggested by the Department that the bond requirement of the sales tax statute is not unique and that many other instances of bond requirements appear in the Florida Statutes. For example, bond requirements exist for distributors of motor fuels, cigarette dealers, manufacturers, distributors and exporters of alcoholic beverages, and so on. Examination of the bond statutes cited by the Department shows that not only is a bond required of all applicants, with some provisions made for reduction of the amount based upon the amount of sales tax collected, but there also appears to be independent basis under the ‘police power’ to require a bond of those particular applicants, whereas there is no semblance of a ‘police power’ motive in the act in question. The main object of the Revenue Act of 1949 is to raise revenue. See 29 Fla.Jur., Sales and Use Taxes, Section 2.
“The Department’s argument that the ‘personal fitness’ exception applies is without merit. Under the general rule, the legislative power cannot be completely delegated as to policy and standards. Under the so-called ‘personal fitness’ exception, a general delegation of authority is upheld because of the difficulty or impossibility of laying down specific guidelines. The evidence in this case shows that the bond requirements in question do not fall within the ‘personal fitness’ exception. The ultimate issue, as the Department admits, is simply a matter of whether the State needs to be protected against the possibility that the dealer will not remit the sales taxes collected. The issue is a financial one, not one involving character or fitness. The bond is required, says the Department, where it appears that there would not exist adequate property or means to satisfy the State’s judgment against the dealer if he failed to remit taxes collected. If, as the Department argues, the personal fitness or character of the applicant is in question, it has been in issue by the Department itself, rather than the Legislature, for the act in question contains nothing whatever that would justify a determination of bond requirements based upon the applicant’s character.
“Article II, Section 3, divides the powers of state government into Legislative, Executive and Judicial branches. The legislative power cannot be completely delegated as to policies and standards. Intelligible principles or standards must be established as a guide to the administrative official in performing his duties. When a statute contains no standard or no sufficient standard for its administration, and no intelligible principle is laid down for the guidance of an administrative official in the performance of his duties, an unlawful delegation of legislative power results unless the situation is within one of the exceptions to the general rule requiring declaration of such standards. See 1 Fla.Jur., Administrative Law, Section 36.
“The Court is bound if at all possible to uphold the constitutional validity of any legislative enactment properly before it. This Court has carefully and conscientiously considered the enactment in the light of its announced purposes, the circumstances and conditions under which it was intended to operate, and the evidence in this particular case as to the manner in which it has been applied. The conclusion is inescapable that the particular portion of the statute, Section 212.14(4) unlawfully delegates legislative authority to the Department of Revenue to say by whom and under what circumstances must a bond be posted, without guidelines or criteria to restrict them in the exercise of their discretion.”

The trial judge then held that the statute was an unlawful delegation of legislative authority and in violation of Article II, § 3, Florida Constitution.

I adopt this well-reasoned final judgment of Judge Larry G. Smith as my dissent.

ROBERTS and HATCHETT, JJ., concur.

      . Section 212.18(3), Fla.Stat. (1973).

      . The trial court’s order recites: “It is true that certain criteria have been developed by the Department, and these have been communicated to the Area Supervisors by telephone, memorandums, and by seminar discussions. These criteria have never been promulgated in the form of rules or regulations of the Department. The Department itself, both in its memorandum of law and in the testimony, suggests adequate reasonable criteria for determining both the necessity for and the amount of the bond. These include the existence of outstanding money judgments, the past history of payment or non-payment of sales taxes, issuance of worthless checks, detailed information as to the nature, location, history, and type of business, and details as to ownership or equity of the business by the applicant. As to the amount of the bond, the Department itself has developed a ‘rule of thumb’ by which it considers a bond adequate if it is in the amount of estimated tax collections over a three-month period.”

      . Chapter 120, Part I, Fla.Stat. (1973); Section 120.52(l)(b), Fla.Stat. (1975). The Department had been exempt from the act’s adjudication provisions. Section 120.21(1), Fla.Stat. (1973). With the adoption of a new act on January 1, 1975, however, the Department is no longer exempt in any respect unless it applies for and obtains exemption under Section 120.63, Fla. Stat. (1975). As pertains to this proceeding, the new act has as one of its principal goals the abolition of “unwritten rules” by which agency employees can act with unrestrained discretion to adopt, change and enforce governmental policy. The term “rule” was broadly defined in the new act to reach precisely the form of invisible policy-making which the Department has employed in the course of enforcing this bonding requirement. Section 120.52(14), Fla. Stat. (1975).


author: SUNDBERG, Justice.

text:
    FLORIDA DEPARTMENT OF REVENUE, an agency of the State of Florida, Petitioner, v. Joseph A. DE MARIA, Respondent.
    No. 48492.
    Supreme Court of Florida.
    Oct. 14, 1976.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., for petitioner.
    Shalle Stephen Fine, of Fine & Brown-stein, Miami, for respondent.
   SUNDBERG, Justice.

This case is presented on petition for writ of certiorari to the District Court of Appeal, First District. Petitioner asserts conflict between the decision in this case reported at 321 So.2d 101 and the decision of this Court in Kendall House Apts., Inc. v. Dept. of Revenue, 245 So.2d 221 (Fla.1971). We conclude that there is conflict in decision and, accordingly, have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

The question presented for our decision is whether the transfer of real property, subject to an outstanding mortgage, from a corporation to its sole shareholder, when the transferee satisfies the purchase money mortgage payments, is taxable under Section 201.02, Florida Statutes.

The salient facts and proceedings in this cause may be summarized briefly. In October, 1972, Orange Motors of Miami, Inc., a corporation of which respondent De Maria (taxpayer) is president and sole stockholder, acquired certain real property for a purchase price of $85,000, including a purchase money mortgage of $60,000. On January 3, 1973, the real property was conveyed by quitclaim deed to taxpayer. Taxpayer did not “assume” the outstanding mortgage, but he has made the monthly payments since the date of conveyance for the purpose of satisfying the $60,000 purchase money mortgage.

Taxpayer filed a class action complaint to enjoin the Florida Department of Revenue (DOR), petitioner, from attempting to collect the documentary stamp tax and penalty pursuant to Sections 201.02 and 201.17, Florida Statutes. During the preliminary pleading stage, taxpayer’s right to maintain the suit as a class action was denied. After the issues were framed by the pleadings and discovery was completed, both parties filed motion for summary judgment. By order dated March 11, 1975, taxpayer’s motion for summary judgment was granted. The trial court held that the deed in question was not subject to the documentary stamp tax imposed by Section 201.02, Florida Statutes. DOR prosecuted its appeal to the District Court of Appeal, First District, which, one judge dissenting, affirmed the trial court by adopting its judgment.

The trial court and the majority of the District Court of Appeal determined that the issue presented was controlled by State ex rel. Palmer-Florida Corp. v. Green, 88 So.2d 493 (Fla.1956). In Green, supra, there was a conveyance of unencumbered real property from a corporation to its stockholders without payment by the grantees. In the transaction the value of the property was charged to the paid-in surplus account of the corporation, and the paid-in surplus of the corporation was accordingly reduced upon transfer. This Court held that “. the deed in question did not require documentary stamps because the grantees were not ‘purchasers,’ and did not pay a ‘reasonably determinable’, ‘consideration’ . as contemplated by Sec. 201.02, Florida Statutes, F.S.A. ... It was a mere book transaction. . . . ” The courts below concluded that Kendall House, supra, and Rasberry v. Dickinson, 243 So.2d 236 (Fla. 1st DCA 1971), also relied upon by DOR, were distinguishable from Green, supra, because Green entailed a mere book transaction and was not a sale to a “purchaser” as contemplated by Section 201.02, Florida Statutes.

In the instant case, like Green, supra, the transfer was by a corporation to its stockholder. However, in the case sub judi-ce the transfer carried with it a shifting of the economic burden of paying the purchase money mortgage from the grantor corporation to the grantee shareholder. Upon the conveyance from the corporation to the shareholder, the corporation receivéd a benefit to the extent that it was relieved of the obligation to pay the purchase money mortgage and the shareholder incurred a commensurate economic burden. This is so even though taxpayer took the conveyance only “subject to the purchase money mortgage,” because, as stated by this Court in Kendall House, supra:

. . It is an economic fact that persons who acquire property ‘subject to’ a mortgage normally pay the indebtedness represented by the mortgage in order to prevent the loss of the property to the same extent as those persons acquiring property ‘assuming and agreeing to pay’ the mortgage.” Kendall House Apts., Inc. v. Dept. of Revenue, Fla., 245 So.2d 221, 223.

It is this shifting of the economic burden and benefit which supplies the con-sideiation required by Section 201.02, Florida Statutes. As pointed out by Judge Wig-ginton in Rasberry v. Dickinson, supra, a comparison of the language of the federal documentary stamp tax statute, 26 U.S.C.A. § 4361, and of Section 201.021, Florida Statutes, with the language of Section 201.02, Florida Statutes, makes it apparent that the Legislature intended not to exempt the value of any lien or encumbrance from the tax imposed by the latter section. In circumstances essentially the same as in the instant case, the Seventh Circuit Court of Appeal interpreted the language of the federal documentary stamp tax statute to impose a tax on a conveyance of property to the extent that the sole stockholder (the parent corporation) assumed the debts of the transferor (a dissolved subsidiary corporation). Greyhound Corp. v. United States, 208 F.2d 858 (7th Cir. 1954).

In the factual context of the case at bar, there can be little doubt that there was a “reasonably determinable consideration” within the purview of Section 201.02, Florida Statutes. Consequently, there remains only the question whether the taxpayer was a “purchaser” as contemplated by that section. Since Chapter 201, Florida Statutes, does not define the term “purchaser” as it is used in Section 201.02, we turn to the plain and ordinary meaning of the term as defined in Webster’s New Twentieth Century Dictionary (2d unab. ed. 1971), page 1463:

“purchaser: one who obtains or acquires property by paying an equivalent in money or other exchange in value.”

Since we have concluded that there was “reasonably determinable consideration” flowing from the taxpayer to the corporation for the conveyance of the real property here involved, it is inescapable that the taxpayer is “one who obtains or acquires property by paying an equivalent in money or other exchange value.”

It is our conclusion, then, that DOR properly applied the concepts of both Green and Kendall House Apts., supra. The corporation’s $25,000 equity in the real property was exempted from documentary stamp taxation, consistent with Green, because there was a mere change in form of the stockholder’s equity in the corporation; whereas, consistent with Kendall House Apts., the shift in economic benefit and burden between the corporation and the taxpayer relative to the purchase money mortgage was subjected to taxation.

The petition for writ of certiorari is granted, and the decision of the District Court of Appeal, First District, is quashed with directions to remand the cause to the trial court for entry of judgment in favor of DOR.

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

      . The pertinent provision of § 201.02, Fla.Stat. (1971), is as follows:
      “Tax on deeds and other instruments relating to lands, etc.—
      “(1) On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each $100 of the consideration therefor the tax shall be 30 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 30 cents for each $100 or fractional part thereof of the consideration therefor. .


author: PER CURIAM.

text:
    Ronald COOK, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1758.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and' PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, Ronald K. Cook, was convicted on two counts of first degree murder pursuant to a negotiated plea of nolo contendere with the reservation of right to appeal the court’s denial of appellant’s motion to suppress his oral and written confessions. The court sentenced the appellant to two life sentences to run concurrently.

The sole point on appeal is whether-the trial court erred in denying the appellant’s motion to suppress his confessions, admissions and statements.

We have carefully considered this point in the light of the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. Therefore the judgment and sentences are affirmed.

Affirmed.


text:
    WARREN BROTHERS COMPANY, a Foreign Corporation, and Ashland Oil, Inc., a Foreign Corporation, Appellants, v. Larry G. JOSLIN and Carol Ann Joslin, his wife, Appellees.
    No. 75-1731.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied Nov. 2, 1976.

      Dixon, Dixon, Lane & Mitchell and Robert J. Galamaga, Miami, for appellants.
    Kuvin, Klingensmith & Lewis, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants take this interlocutory appeal to review an order vacating and setting aside a previous order transferring this cause to Lee County. Plaintiff Larry G. Joslin was injured in an automobile accident in Lee County. He filed a complaint in Dade County alleging that he became a quadriplegic as a result of this accident caused by the wrongful conduct of the defendants, Bock Industries of Florida,. Inc., Warren Brothers Company and Ashland Oil, Inc. Bock Industries is a domestic corporation which has an office for the transaction of its customary business in Hillsborough County. Warren Brothers (the wholly owned subsidiary of Ashland Oil) is a foreign corporation which has an office and a representative in Lee County. Warren Brothers does not maintain an office in Dade County. Ashland Oil, a foreign corporation, maintains an office for the transaction of business and a division in Dade County. After receipt of the complaint, Ashland Oil and Warren Brothers filed motions to transfer this cause from Dade County to either Lee or Hillsborough County on the grounds that venue did not properly lie in Dade County and the doctrine of forum non conveniens required transfer of the action to either of the above counties. After argument on these motions, the trial judge on August 26, 1975 entered an order transferring the cause to Lee County. Plaintiff filed a petition for rehearing and a motion to vacate the transfer order alleging, inter alia, that the Lee County Courthouse does not provide adequate facilities for disabled persons like himself. Oral argument was had on this motion, and the trial judge entered the appealed order vacating his August 26 order and directing the cause to proceed in Dade County.

Appellants contend that the trial court erred in vacating its transfer order to Lee County thereby holding that Dade County is the proper forum to try the instant cause.

First, the plaintiff has the option of choosing the forum, not the defendant. Equilease Corporation v. Clifford, Fla. App.1971, 251 So.2d 40. Second, upon reading §§ 47.051 and 47.021, Fla.Stat. together, Dade County is a proper forum in that Ashland has an office in this county. Cf. Touchton v. Atlantic Coast Line Railroad Company, Fla.App.1963, 155 So.2d 738. Third, we must reject appellants’ argument that the court erred in not applying the principle of “mutuality of residency” as all the defendants in this case do not enjoy mutual residency. Last, we find no .abuse of discretion on the part of the trial judge in refusing to transfer this action pursuant to § 47.122, Fla.Stat. for the convenience of the parties. See Fixel v. Clevenger, Fla.App.1973, 285 So.2d 687, and Touchton, supra.

Affirmed.

ON PETITION FOR REHEARING

Appellants contend that contrary to the factual situation set out in our opinion, the trial court did not hear oral argument on plaintiff-appellee’s motion to vacate transfer order. Although the order vacating the previous transfer order recites that argument was heard, the record demonstrates to the contrary. Therefore, we modify our opinion to reflect this fact by deletion on page 2 of the words “Oral argument was heard on this motion. . . ”

Nevertheless, the record does reflect a hearing was held on appellants’ petition for rehearing of the motion to vacate the transfer order and thereafter the trial judge denied the petition. We adhere to the opinion filed in this cause and deny the petition for rehearing.

      . Not a party to this appeal.

      . “47.051 Actions against corporations.
      “Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an of- ' fice for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.
      “47.021 Actions against defendants residing in different counties.
      “Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.”


author:
PER CURIAM.
      PEARSON, Judge

text:
    Willie MANSFIELD and Tommie Louis Harris, Appellants, v. The STATE of Florida, Appellee. Willie MANSFIELD, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-1330, 75-1485 and 75-1331.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Rehearing Denied Nov. 2, 1976.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., and Ann Bradley, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Willie Mansfield and Tommie Harris seek reversal of their convictions for trespass and grand larceny. Mansfield also appeals his revocation of probation.

In response to a silent burglar alarm, the police surrounded Douglas Freight Salvage warehouse and began a search of the building. Harris was found hiding in a clothing drawer and Mansfield hiding in a refrigerator. The two were informed against for breaking and entering with intent to commit grand larceny, and grand larceny. They were tried together and the jury found them guilty of trespass (as a lesser included offense of breaking and entering), and grand larceny. A revocation hearing was then held on Mansfield’s prior probation. Whereupon, the court found him to be in violation of his probation, entered an order of revocation and imposed a three-year sentence.

Defendants urge as reversible error the denial of their motion for mistrial where one of the police officers testified that Harris exercised his right to remain silent during a police interrogation thereby violating both defendants’ privilege against self-incrimination based upon the following colloquy:

“Q Did you have occasion to speak with either one of these defendants after this?
“A Yes, sir.
“I began the interview with Tommie Harris first, and he said he knew his constitutional rights but that he didn’t want to talk to me then and he was going to wait and talk to a lawyer first.
“So, at this point, I terminated the interview with him and those were the only questions that he answered.
“MR. FLYNN: I move to strike the answer. I move for a mistrial.
“THE COURT: The objection is sustained. The motion is denied.”

Bennett v. State, Fla.1975, 316 So.2d 41 holds that any comment upon the defendant standing mute or refusing to testify in the face of an accusation is fundamental error requiring a new trial. This principle of law does not apply here as Harris’ statement was not made in the face of accusation. Harris voluntarily made the statement, after he was given Miranda warnings, that he knew his constitutional rights but didn’t want to talk. Thereupon the questioning terminated and no effort was made by the officer to confront him with any accusation of guilt or any incriminating evidence. Cf. State v. Flanagan, 443 S.W.2d 25 (1969).

If there was error, the error was harmless as the evidence of guilt was overwhelming and we are satisfied that the above testimony did not contribute to the conviction of the defendants. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Bennett v. State, supra, at 44.

Mansfield’s contention that the order revoking his probation was erroneous lacks merit.

Affirmed.

PEARSON, Judge

(dissenting).

I am convinced that these judgments must be reversed under the holding in Bennett v. State, Fla.1975, 316 So.2d 41. Under that holding, the harmless error doctrine is not applicable. The constitutional rights of an individual are of such importance that they cannot be violated and then excused. These rights must be enforced even in the most difficult cases.

ON PETITION FOR REHEARING

Appellants in their motion for leave to supplement petition for rehearing cites this court to Shannon v. State, 335 So.2d 5 (Fla., opinion filed June 30, 1976) which holds that the harmless error doctrine is inapplicable to the error complained of in Bennett v. State, 316 So.2d 41 (Fla.1975). We hereby grant appellants’ motion to supplement petition for rehearing and strike the next to the last paragraph of our opinion with respect to the issue of harmless error.

Nevertheless, the rule is that any comment upon the accused’s exercise of his right to remain silent in the face of an accusation of guilt of the crime for which he is arrested and charged constitutes reversible error. Bennett v. State, 316 So.2d 41, 42 (Fla.1975). We adhere to our primary finding that Harris’ statement to the arresting officer that he didn’t want to talk to them was not made in the face of accusation and, therefore, distinguishable from the factual situation in Bennett, supra. After Harris stated he knew his rights and did not wish to talk, the officer made no effort to confront Harris with any accusation of guilt and terminated the interview.

Accordingly, the petition for rehearing as supplemented is denied.

PEARSON, J., dissents.


author: HENDRY, Judge.

text:
    COLLIER LAND CORPORATION et al., Appellants, v. ROYAL PALM BEACH REALTY, INC., a Florida Corporation, et al., Appellees.
    No. 75-1470.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Rehearing Denied Nov. 9, 1976.
    Edward S. Jaffry, Tallahassee, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and James D. Little and Donald R. Thompson, Pallot, Poppell, Goodman & Slotnick, Miami, for appellees.

      Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   HENDRY, Judge.

Appellants, defendants below, bring this interlocutory appeal from an order compelling arbitration and staying proceedings entered by the trial court pursuant to appel-lees’, plaintiffs below, (except appellee Central Bank and Trust Company who was a defendant below) motion.

Appellees Royal Palm Beach Realty, Inc., and Royal Palm Beach Colony, Inc., (hereinafter referred to as plaintiffs) and appellants on June 29, 1972, entered into a written agreement providing for the sale and development of certain real property located in Santa Rosa County, Florida. The parties acted in accordance with the agreement through August 31, 1974. After this date, appellants by a letter dated September 5, 1974, terminated the agreement. Thereafter, on March 27, 1975, plaintiffs filed a complaint complaining of certain matters relating to the termination of the agreement and sought, among other things, the following relief: an injunction, an accounting, and the appointment of a receiver. Subsequently, plaintiffs filed a motion seeking to compel appellants to submit to compulsory arbitration and requesting that further proceedings in the civil action be stayed pending the outcome of the arbitration. On August 27,1975, the trial court entered an order granting plaintiffs’ motion. From this order, appellants appeal.

Appellants contend that the trial court erred in entering; the August 27,1975, order compelling arbitration and staying further proceedings in the cause because the provision in the contract providing for the arbitration of future disputes between the parties is void and unenforceable and, in the alternative, plaintiffs waived any right to submit the instant dispute to arbitration. Appellees contend to the contrary.

Paragraph 38 of the agreement between the parties contained the following provision:

“38. ARBITRATION: Any disagreement arising out of this Agreement or from the breach of it shall be submitted to arbitration, and this Agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law, and judgment upon the award rendered may be entered in the highest court of the forum, >state or federal, having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that the parties may have against each other pursuant to this Agreement. The arbitration procedure shall be as follows: The parties may agree upon one arbitrator; otherwise there shall be three, one named in writing by the OWNER and one named in writing by the BROKER and/or DEVELOPER within five days after notice of arbitration is served by any party upon the others, and a third arbitrator selected by these two arbitrators within five days thereafter. No one shall serve as an arbitrator who is in any way financially interested in this Agreement or in the affairs of the OWNER, BROKER, or DEVELOPER. At the written request of either party, at any time prior to the complete appointment of arbitrators, as provided above, or in the event of any default or lapse in the proceedings, the arbitration shall be held under the Rules of the American Arbitration Association. The foregoing procedure for arbitration shall likewise be available to BROKER AND DEVELOPER if OWNER alleges any default under this Agreement.”

A reading of Paragraph 38 of the agreement, in light of Section 682.02, Florida Statutes (1975) (Florida Arbitration Code) and the facts of this case, leads us to the conclusion that the trial court properly granted plaintiffs’ motion compelling arbitration between the parties and staying further proceedings in the cause in the trial court. See Gersh v. Concept House, 291 So.2d 258 (Fla.3d DCA 1974); Merkle v. Rice Construction Company, 271 So.2d 220 (Fla.2nd DCA 1973); and Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla.4th DCA 1973).

We have considered the record, all points in the briefs and arguments of counsel in light of the controlling principles of law and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order compelling arbitration and staying proceedings appealed is affirmed.

Affirmed.


author: BARKDULL, Chief Judge.

text:
    RESOLUTE INSURANCE COMPANY et al., Appellants, v. Richard P. BRINKER, Clerk of the Circuit Court for Dade County, Florida, Appellee.
    No. 75-1492.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Rehearing Denied Nov. 9, 1976.
    Joseph A. St. Ana, Jacksonville, for appellants.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   BARKDULL, Chief Judge.

The appellants executed surety bonds in certain criminal proceedings. Thereafter, as the matters proceeded, the defendants failed to appear and orders of estreature were entered by the several judges presiding over the criminal causes. Subsequently, statutory proceedings were instituted pursuant to § 903.27(1), Fla.Stat., to have judgments entered on the estreature orders; five such judgments were duly entered against the appellants as the sureties on the original appearance bonds. These judgments assessed costs and provided for interest from the date of the judgments. Pursuant to the provisions of § 903.27(1), Fla. Stat., copies of these judgments were forwarded to the appellants as the original sureties. Thereafter, each of the judgments were paid and satisfied.

Subsequently, more than forty-five days after the entry of the several judgments, the surety companies filed an independent action seeking to recover the items assessed as costs and interest in the several judgments against the appellee as the Clerk of the Circuit Court. The trial court dismissed the action, finding that it was without jurisdiction to entertain same. Implicit in its holding was that the remedy afforded a surety company, pursuant to § 903.27(2), Fla.Stat., to seek review of any such final judgment within forty-five days was controlling and, therefore, dismissed the cause.

We have reviewed the arguments advanced by the appellants, contending error in this order and fail to find any such. We find that the trial court was eminently correct. The sureties executed the bonds, received the premiums, knew what the statutes provided and, upon receipt of the final judgments if they thought there were any errors contained therein, they should have sought relief within the forty-five day period provided for in ‘ § 903.27(2), Fla.Stat.

Therefore, the order under review is hereby affirmed.

Affirmed.

      . No issue was made in the trial court nor raised here as to the propriety of the joinder of plaintiffs, and this opinion is not to be construed as approving such procedure.

      . This opinion is not to be construed as either approving or disapproving the propriety of the award of interest and costs on these judgments, as we do not reach these issues in this opinion.


text:
    Standford BIRNHOLZ, Appellant, v. Sidney STEISEL et al., Appellees.
    No. 75-1397.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Rehearing Denied Nov. 8, 1976.
    See also, Fla.App., 313 So.2d 125.
    Stephens, Thornton & Schwartz, Miami, and James A. Daugherty III, for appellant.
    Shapiro, Fried, Weil & Scheer and Richard A. Daar, Miami Beach, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, appeals an order of the trial court dismissing his complaint entered pursuant to appellees’ defendants below, motion to dismiss.

On November 10, 1972, appellant filed a complaint, subsequently amended, against appellees seeking recovery for certain attorney fees. On December 3, 1974, appellees moved to dismiss the complaint, case no. 72-23332 in the circuit court, for want of prosecution. This motion was denied, and on January 10, 1975, appellees filed an interlocutory appeal from the order denying their motion. On May 20, 1975, this court entered an opinion reversing the order of the trial court. Appellant’s petition for rehearing was denied on June 18, 1975. Thereafter, appellant filed a petition for writ of certiorari to the Supreme Court of Florida asserting conflict jurisdiction. To date, this petition remains pending and un-disposed of by the Supreme Court.

On May 2, 1975, appellant filed another complaint, case no. 75-14039 in the circuit (ourt, against appellees setting forth identical causes of action to those in his previous amended complaint. Thereafter, on May 22, 1975, appellees filed a motion to dismiss this latter complaint. On August 14, 1975, the trial court entered an order granting appellees’ motion to dismiss on the grounds that the prior complaint in case no. 72-23332 was still pending and, because identical issues and parties were present, the latter complaint in case no. 75-14039 should be dismissed. From this order, appellant appeals.

Appellant contends that the trial court erred in dismissing the complaint in lieu of temporarily abating the action until a determination by the Supreme Court of Florida of the prior pending action. Appellee contends to the contrary.

It is a well settled general principle of law that the pendency of a prior action in a court of competent jurisdiction will abate a later action or suit commenced in the same court or another court of like jurisdiction, if the parties are the same and both suits are predicated on the same- cause of action. See 1 Am.Jur.2d, Abatement, Survival and Revival §§ 5-44; and 1 Fla. Jur. Abatement and Revival, §§ 5-8. In light of this general principle and based on the facts of this case, in our opinion the trial court erred in entering its order dated August 14, 1975, dismissing case no. 75-14039, rather than abating it.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated, the order appealed is reversed.

Reversed.


author: NATHAN, Judge.

text:
    WALD CORPORATION, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 75-1692.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Rehearing Denied Nov. 8, 1976.

      Korner & Sampson, Coral Gables, for appellant.
    Stuart Simon, County Atty. and Robert A. Ginsburg, Asst. County Atty., Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

The appellant in this case, Wald Corporation, is challenging a required dedication of canal rights-of-way and maintenance easements which was imposed by the appellee, Metropolitan Dade County, as a condition of approval of appellant’s plat for a proposed subdivision. Wald refused to dedicate, and instead filed a complaint in Dade County Circuit Court, seeking a declaration of the unconstitutionality of those sections of the Code of Metropolitan Dade County which required dedication of land for canal purposes as a condition for plat approval.

The trial court granted the County’s motion for summary judgment, holding that the subdivision requirements relating to drainage would be upheld as a matter of law under either of the two prevailing standards of review. While we essentially agree with the decision of the trial court, we feel that it is advisable for us to review the applicable law in the area of subdivision dedication requirements.

There are two distinct standards which have generally been applied by the various state courts when confronted with mandatory dedication. The first was initially proposed by the California Supreme Court in the leading case of Ayres v. City Council, 34 Cal.2d 31, 207 P.2d 1 (1949). In that case, the city planning commission conditioned approval of a proposed subdivision plat upon the dedication of an eighty feet wide strip of land which was to be used for the extension of a nearby cross street. Despite the fact that the existing street was only sixty feet wide, the Ayres court upheld the dedication requirement, noting that the facts of the case sufficiently supported the conclusion “that the required width is reasonably related to the potential traffic needs.” Id. at 39, 207 P.2d at 6. (Emphasis added.)

This “reasonable relation” requirement has been applied in a number of other jurisdictions. See, e. g., Brous v. Smith, 304 N.Y. 164, 106 N.E.2d 503 (1952); Krieger v. Planning Com’n, 224 Md. 320, 167 A.2d 885 (1961). Unfortunately, however, the language of Ayres often seems to be cited in cases with markedly different fact patterns, to the extent that the original test pronounced in Ayres may be rendered virtually unrecognizable.

The confusion surrounding application of the Ayres test may be evidenced through reference to several cases which were decided by the Illinois Supreme Court. In the first, Rosen v. Village of Downers Grove, 19 Ill.2d 448, 167 N.E.2d 230 (1960), the high court of Illinois held that a municipality lacked statutory authority to. exact cash payments in lieu of dedicating land for educational purposes. Although compulsory dedication itself was not in issue, the Ayres opinion was cited:

“The provisions of the statute . appear to be based upon the theory that the developer of a subdivision may be required to assume those costs which are specifically and uniquely attributable to his activity and which would otherwise be case upon the public. It is upon this theory that we sustain the requirement that a subdivider provide curbs and gutters in Peterson v. City of Naperville, 9 U1.2d 233, 137 N.E.2d 371.
* * * * * *
“The distinction between permissible and forbidden requirements is suggested in Ayres v. City Council of City of Los Angeles, 34 Cal.2d 31, 207 P.2d 1, 11 A.L.R.2d 503, which indicates that the municipality may require the developer to provide the streets which are required by the activity within the subdivision but can not require him to provide a major thoroughfare, the need for which stems from the total activity of the community.” Rosen, 167 N.E.2d at 233-34. (Emphasis added.)

As noted above, the Ayres court had upheld a dedication requirement which was “reasonably related” to the needs of the municipality, yet it was suggested in Rosen that such requirements had to be “specifically and uniquely attributable” to the activity of the subdivider.

In a subsequent decision, Pioneer Trust & Savings Bank v. Villiage of Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799 (1961), the Illinois Supreme Court was directly confronted with an issue of mandatory dedication. Although the court noted that Rosen had not decided the dedication question, it quoted the “specifically and uniquely attributable” language of the Rosen case to distinguish between permissible and forbidden requirements. Like the earlier Rosen case, Pioneer Trust also cited Ayres as support for this standard of review. But while Ayres ruled that mandatory dedication requirements would be upheld where “reasonably related” to municipal needs, Pioneer Trust ruled that such requirements would be invalid unless “specifically and uniquely attributable” to the subdividers activity.

Although the Pioneer Trust decision cited Ayres as precedent, it would seem that the two cases proposed entirely different standards for the review of subdivision dedication requirements. The Ayres standard of “reasonable relation” puts a heavy burden on the developer to show that the required dedication bears no relation to the general health, safety and welfare. In this regard, it is couched in traditional police power language:

“It is the [developer] who is seeking to acquire the advantages of lot subdivision and upon him rests the duty of compliance with reasonable conditions for design, dedication, improvement and restrictive use of the land so as to conform to the safety and general welfare of the lot owners in the subdivision and of the public.” Ayres, 34 Cal.2d at 42, 207 P.2d at 7.

Thus, the Ayres standard of “reasonableness” defers to the legislative judgment that there is or will be a threat posed to the welfare of both lot owners and the general public if the required dedication is not made.

Pioneer Trust, on the other hand, shifts the burden of proving the validity of subdivision exactions to the municipality; mandatory dedication is only to be upheld where the discerned needs are directly and solely attributable to the proposed subdivision. The presumptions of validity which are usually attendant police power measures are undermined, if not ignored altogether, thus affording little deference to the judgment of the local legislative authority.

Both of these standards have their relative strengths and weaknesses. The Ayres standard allows the municipality considerable flexibility in the formulation of comprehensive plans for future growth and development. It assures the local legislature that its dedication requirements will be upheld short of gross abuse. But while such wide latitude is routinely accorded in other areas of police power regulation, required dedication as a condition for approval for subdivision plats stands in derogation of constitutionally protected property rights. Thus, it is imperative that some sort of standard be imposed which will not allow virtually unbridled interference with private property. While we believe that a legislative authority may require dedication of land as a condition for subdivision plat approval, the constitutional validity of such requirements should not be tested merely for reasonableness. Such a method of review would allow local governments almost unlimited discretion in the imposition of dedication requirements. For this reason, we cannot accept the Ayres rule of “reasonable relation.”

At the same time, the Pioneer Trust case created a standard which is unduly restrictive of local exercises of the police power. While it is possible to envision instances where potential problems will be “specifically and uniquely attributable” to the proposed subdivision, more often than not, local authorities are faced with situations which involve an entire community, including land owned by the complaining subdi-vider. The cause and effect approach advocated by Pioneer Trust disallows a formidable method of subdivision control, which is an integral part of comprehensive planning. And while it is important to guard against unbridled municipal discretion, it is equally important that those who propose to subdivide may be subjected to rational dedication requirements. For this reason, we also reject the “specifically and uniquely attributable” rule of Pioneer Trust.

In seeking to establish a moderate standard with which to review the actions of Dade County in the instant case, we have sought guidance from the Florida courts. One circuit court has adopted the “strictly and uniquely attributable” standard of Pioneer Trust. Carlann Shores, Inc. v. City of Gulf Breeze, 26 Fla.Supp. 94 (Fla. Santa Rosa Cty.Ct.1966). As noted above, however, we choose not to adopt such a restrictive standard. The Fourth District Court of Appeal invalidated a mandatory dedication requirement in Admiral Development Corp. v. City of Maitland, 267 So.2d 860 (Fla. 4th DCA 1975), but because the municipality had exceeded its charter authority. While the Maitland case did cite a Rhode Island decision which utilized the “specific and unique” language of Pioneer Trust, both of these cases are distinguishable to the extent that they were concerned with dedication requirements which were set at a fixed percentage by law. Such fixed percentage requirements were found to be arbitrary on their face.

Although no Florida appellate cases can be found on the point concerned herein, the Supreme Court of Florida has had occasion to limit exercises of the police power where private property rights were adversely affected without adequate justification. In a case concerning the regulation of outdoor advertising, the court held that private business could not be subjected to police power restrictions where there was “no reasonably identifiable rational relationship between the demands of the public welfare and the restraint upon private business . .” Eskind v. City of Vero Beach, 159 So.2d 209, 212 (Fla.1963).

Although Eskind involved a business regulation, its standard of review may be readily appropriated for use in determining the validity of the subdivision exaction which is currently before us. The situations involved in the two cases are analogous. As was noted in a widely cited commentary on subdivision control requirements:

The subdivider is a manufacturer, proces-ser, and marketer of a product; land is but one of his raw materials. In subdivision control disputes, the developer is not defending hearth and home against the king’s intrusion, but simply attempting to maximize his profits from the sale of a finished product. As applied to him, subdivision control exactions are actually business regulations.

John D. Johnston, Jr., Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell L.Q. 871, 923 (1967). While this statement displays the correlation between subdivision control and business regulation, it is also supportive of a critical distinction which must be drawn between the ordinary property owner and the subdivider.

Unlike one who merely reserves his property for personal use or sale as a single tract, the subdivider profits from the sale of lots within the subdivision to prospective home builders. The local government, in turn, must consider the welfare of the families who will be filling the development. It is eminently reasonable, therefore, to allow the municipality to impose certain conditions upon the developer so that it may provide for the needs of persons who would not otherwise have been a local concern. And in a very real sense, the subdivider profits from the conditions imposed upon him, since the provision of safety and health requirements benefits potential buyers, thus rendering the lots of the subdivision more attractive.

This same reasoning was utilized by the Supreme Court of Wisconsin to uphold a required dedication of land for school, park and recreational purposes. Jordan v. Village of Menomonee Falls, 28 Wis.2d 608, 619-20, 137 N.W.2d 442, 448 (1966). Using a police power rationale, the Wisconsin court found that there was a reasonable connection between the required dedication and the anticipated needs of the community. The court noted that it might be impossible to show at times that the required exaction would be necessary to meet a need which was solely attributable to one particular subdivision. Nevertheless, the local authorities might well be able to prove that continued approval of subdivisions over the years could result in dramatic increases in the amount of services and safeguards which the municipality would have to provide. Such proof would certainly justify the dedicatory requirement.

This “rational nexus” approach provides a more feasible basis for testing subdivision dedication requirements than the two methods of review discussed earlier. It allows the local authorities to implement future-oriented comprehensive planning without according undue deference to legislative judgments. It requires a balancing of the prospective needs of the community and the property rights of the developer. But above all, it treats the business of subdividing as a profit-making enterprise, thus drawing proper distinctions between the individual property-holder and the subdivider. While the former may not ordinarily have his property appropriated without an eminent domain proceeding, the latter may be required to dedicate land where the requirement is a part of a valid regulatory scheme.

The record in the instant action clearly demonstrates the need for proper drainage through the proposed subdivision. The Wald property is located in a “glade area” of Dade County which has been subject to periodic flooding. Although the subdivision parcel itself is slightly above flood level, other parts of the glade both upstream and downstream from the parcel are lower, and are thus subject to runoff from the Wald subdivision. In 1957, the Board of County Commissioners for Dade County adopted a plan for a secondary canal system which was intended to run through the Wald Property. This plan was tentative, according to an affidavit by F.D.R. Parks, the Water Control Engineer for the Dade County Public Works Department; it is revised and realigned as different tracts are developed. The latest revision to the water control plan was approved in 1972. Parks’ affidavit notes that both upstream and downstream property will be adversely affected if flow-through drainage is not provided across the Wald subdivision. A further critical point is that the subdivision itself would be damaged by periodic flooding without flow-through drainage. These points are not refuted. To the contrary, Wald concedes that it will be benefited once the canal system is connected.

Although appellant belabors the fact that the canal system is not yet fully operable, this point is without merit, since it would otherwise be impossible to institute reasonable regulation and dedication requirements as part of comprehensive municipal planning. Whole areas of a community are often zoned before any actual development occurs. In fact, Florida Statutes §§ 163.160 and 163.195 specifically authorize the adoption of comprehensive plans for future development. Where such plans are adopted, zoning changes may not be implemented where the proposed change will not conform to the comprehensive plan, unless there is approval by the local governmental commission. It would seem illogical to foster intelligent prospective planning in the area of zoning, only to deny this same type of function in the area of subdivision control.

For these reasons, we find that Sections 28-13(a), (b) and (c) of the Code of Metropolitan Dade County are rationally connected to the goals which the County seeks to achieve. The rational nexus between intelligent planning which is designed to protect the health, safety and welfare of the citizens of Dade County and the disputed dedication requirement is sufficient to uphold the subject ordinances as a valid exercise of the police power.

Wald finally contends that Section 28-13 is unconstitutionally vague in that it allows for unlimited and unsupervised discretion in. the determination of required dedications. We feel that this claim is unfounded. Chapter 28 of the County Code is replete with regulations and considerations concerning subdivisions and dedication. It contains more than adequate standards to be applied by the Department of Public Works so far as platting and subdivision requirements are concerned. While the Department is allowed some reasonable, warranted discretion, it is properly limited by Chapter 28 when read in conjunction with the County’s Manual of Public Works Construction, Water Control Section, and the County Water Control Master Plan. Finally, the actions of the Dade County Plat Commission are reviewable by the Zoning Appeals Board, which affirmed the Plat Committee’s denial of approval for the Wald subdivision plat. We therefore find that Wald’s claim of unbridled discretion is without merit. See Thomas v. City of West Palm Beach, 299 So.2d 11 (Fla.1974).

We hold that Sections 28-13(a), (b) and (c) of the Code of Metropolitan Dade County are constitutionally valid, both upon their face and as applied to the Wald subdivision. The trial court’s order granting Dade County’s motion for summary judgment is therefore affirmed.

Affirmed.

      . Specifically, appellant seeks to have §§ 28-13(a), (b) and (c) of the Code of Metropolitan Dade County declared unconstitutional as a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and Article X, § 6(a) of the Florida Constitution. The chal-lengedprovisions read as follows:
      Sec. 23-13. Drainage
      (a) Master plan and manual of public works construction. The developer shall plan all drainage for his subdivision in accordance with the master plan entitled, “County Water Control Plan”, recorded in plat book 64, page 114 and in accordance with the flood criteria map, recorded in plat book 53, pages 68, 69, and 70, or as such plan or map may be changed or modified. The drainage plans shall be subject to approval of the public works department for compliance with such plan.
      (b) Permit to construct or alter drainage ways. No individual, partnership, or corporation shall construct, deepen, widen, fill, reroute, or alter any existing drainage way, ditch, drain, or canal without first obtaining a written permit from the department of public works. Plans for all such work shall comply with the manual of public works construction of the public works department, and all such work shall be done under the. supervision and subject to the approval of the department of public works. Rights-of-way for all such drainage works and maintenance thereof as prescribed by the manual of public works construction and the county water control plan, must be dedicated to the use of the public, such dedication to be made prior to any such construction or alteration if so required by the public works department.
      (c) Rights-of-way and easements. Whenever any drainage way, stream, or surface drainage course is located or planned in any area that is being subdivided, the subdivider shall dedicate such stream or drainage course and an adequate right-of-way necessary for maintenance, future expansion and other purposes along each side of such stream or drainage course as is determined by uniform standards prescribed by the manual of public works construction.