This cause is before us on rehearing granted pursuant to the rendition of our opinion and judgment rendered and entered herein on December 1st, 1938.
The factual conditions are fully set out in the opinion, supra, but we concede that the statement in that opinion, viz.: "The record shows that the City of Pompano, under Chapter 13324, Special Laws of Florida, Acts of 1927, and Chapter 13323, Laws of Florida, Special Acts of 1927, issued certain bonds and coupons hereinafter described which are owned or controlled by the relators, or as trustees therefor," does not go far enough because the issuance of the bonds was authorized under the provisions of Chapter 6754, Acts of 1913.
The bonds recite on the face thereof:
"This bond is one of a series issued by said City for the purpose of laying sewers, installing an adequate water works system and constructing streets and sidewalks, all within and for said City, under the authority of and in full compliance with an Act approved by the Governor on May 11, 1927, known as House Bill No. 489, being the Charter of said City, and another Act approved by the Governor on April 18, 1927, known as House Bill No. 127, and by virtue of the vote of a majority of the registered voters of said *Page 776 City owning real estate therein and having paid their taxes for the year last due thereon and actually voting at an election specially called for that purpose and ordinances duly passed and approved and now in force."
The certificate of validation appearing on the bond is as follows:
"Validated and confirmed by decree of the Circuit Court of the Fifteenth Judicial Circuit in and for Broward County, Florida, rendered on September 25, 1926.
FRANK A. BRYAN, "Clerk of the Circuit Court."
So the certificate shows that the issuance of the bonds was validated prior to the legislative Acts of 1927, supra, and, therefore, were not dependent exclusively upon those Acts for validity.
Chapter 13323, Special Acts of 1927, was an Act entitled:
"An Act providing for the issuance of $375,000 bonds of the Town of POMPANO, the same being a portion of $750,000 bonds which have been authorized and validated, and cancelling the authority to issue the remainder of said bonds."
This Act provided:
"Be it Enacted by the Legislature of the State of Florida:
"Section 1. That the Town Council of the Town of Pompano be and the same is hereby authorized to issue at one time or from time to time that portion of the bonds above described, aggregating $375,000, which mature as follows: $5,000 1931 to 1933, $10,000 1934 to 1939, $15,000 1940 to 1947 and $20,000 1948 to 1956, all inclusive, and that said Town shall not be allowed to issue any bonds pursuant to the said Election except the $375,000 bonds herein authorized to be issued.
"Sec. 2. That the Clerk of the Circuit Court of the Fifteenth Judicial Circuit in and for Broward County shall *Page 777 not certify the validation by said Court of any bonds authorized at said election, except the $375,000 bonds authorized by Section 1 of this Act.
"Sec. 3. That in each year while any of said bonds are outstanding there shall be levied and collected upon all taxable property within said Town a sufficient tax to pay the interest falling due in the ensuing year upon said bonds, and sufficient also to maintain a sinking fund for the payment of each and all of said bonds as the same fall due.
"Sec. 4. That this Act shall take effect upon its becoming a law.
"Approved April 18, 1927."
Chapter 13324, Special Acts of 1927, was an Act entitled:
"An Act to abolish the present municipality of Town of POMPANO, in Broward County, Florida: to create and establish a new municipality to be known as City of Pompano, in Broward County, Florida: to legalize and validate the ordinances of said Town of Pompano and official acts thereunder, and to adopt the same as the ordinances of said City of Pompano: to prescribe the time within which suits shall be brought against said city and for notice thereof: to fix and provide the territorial limits, jurisdiction and powers of said City of Pompano, in Broward County, Florida, and the jurisdiction and powers of its officers."
Sections 35 and 36 of this Act provide as follows:
"Sec. 35. General Law. That nothing in this Act shall be so construed as to alter, abolish, affect or amend any of the laws of this State now in force, or which may be hereafter enacted relative to towns and cities of the State incorporated under the general law, nor any of the ordinances of the former Town of Pompano now in force under the existing Municipal Government of the said Town of Pompano, except such as will conflict with the provisions of this *Page 778 Act and all such laws and ordinances are hereby declared to be in full force and effect, and all the ordinances of said Town, and all the Acts of said Municipality and officers, employees and agents under said ordinances are hereby declared valid and legal and are ratified, approved and confirmed.
Sec. 36. Obligations. The city council shall provide for the payment of all outstanding indebtedness of the Town of Pompano; and all acts and transactions of said Town of Pompano and its offices, not in conflict with the Constitution and laws of the State of Florida, together with all obligations assumed by the said City, or its officers, including all issues of bonds, all assessments for the cost of municipal improvements shall be and the same are hereby declared to be valid and of full force and effect and binding upon the City of Pompano created by this Act, and all rights of the said Town of Pompano heretofore acquired shall pass to and be vested in the City of Pompano created by this Act; and the title to all property, real, personal and mixed now belonging to the Town of Pompano, all uncollected taxes, dues, claims, judgments, decrees and choses in action shall pass to, and be vested in, the City of Pompano created by this Act."
One of the rights and powers which passed to the City of Pompano was the right and power to consummate the issuance of the bonds which had been authorized by the duly enacted ordinances of the Town of Pompano insofar as the Town of Pompano could have carried out that issuance if it had remained as it was.
In other words, there was a continuation of all the powers and duties which had been acquired or imposed by law and legal action on the Town of Pompano to be met and discharged by the newly created corporation the City of Pompano. Broughton v. Pensacola,93 U.S. 266, 23 L. Ed. 896; *Page 779 Stokes v. Montgomery, 203 Ala. 307, 86 Southern 663; Amy v. Selma, 77 Ala. 103; Black v. Fishburn, 84 S.C. 451, 66 S.E. 681; Girard v. Philadelphia, 7 Wall. 1, 19 L. Ed. 53; Morgan v. Beloit, 74 U.S. 613; 19 L. Ed. 203; Shapleigh v. San Angelo,167 U.S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310.
We are confronted with the further fact, however, that Section 45 of Chapter 13324, Acts of 1927 provides as follows:
"Sec. 45. Bonds. Whenever it shall be deemed advisable to issue bonds for any purpose or purposes hereinafter named for raising money to be used in constructing, maintaining or purchasing waterworks; for the purpose of constructing, maintaining or purchasing gas or electric light works, or other illuminating systems; for the purpose of constructing, maintaining or purchasing a system of sewerage; or otherwise promoting the health of said municipality; or for the purpose of opening, constructing, repairing and maintaining the streets and sidewalks of said municipality, or for the purpose of opening, constructing and maintaining public parks and promenades; or for the purpose of erecting school houses and maintaining a system of public education in said municipality; for the purpose of establishing and maintaining a fire department in said municipality; for the purpose of erecting public building for the use of said municipality; for the purpose of refunding any indebtedness of said City; for the purpose of constructing sea-walls along the water fronts of said city; for the purpose of constructing, repairing or maintaining municipal docks; for the purpose of filling in any lot or submerged land in said city; for the purpose of constructing, repairing or maintaining bridges, bulkheads and causeways; or for any other municipal purpose, the Mayor and City Council are hereby authorized to issue bonds of said municipality, and under the seal of said corporation, to an amount of not exceeding twenty *Page 780 per cent of the assessed valuation of all the property, both real and personal within said city, as shown by the assessment roll, said bonds to be signed by the Mayor, countersigned by the President of the Council, and attested by the Clerk, with interest coupons attached; provided, however, that before said bonds shall be issued the issuance of said bonds shall be approved by an affirmative vote of a majority of the electors voting for such purpose separately or collectively at an election to be held for such purpose or purposes, which election shall be regulated by ordinance as to the manner of conducting and certifying the same, after the same has been advertised for not less than thirty days in a newspaper published in said City of Pompano, or in some newspaper published in Broward County, Florida, and at which election only qualified electors of said City who own real estate in said City, and who have paid the taxes thereon last due, shall be allowed to vote at said election."
Therefore, without complying with the provisions of this Section, there was no authority in the City Commission to pledge the tax on the additional territory included within the City of Pompano by the provisions of Chapter 13324, supra, without the approval by an affirmative vote of a majority of the electors in the added area voting in an election held for that purpose.
So it is that we conclude that the bonds constitute the valid and binding obligation of the municipality as it existed at the time the election was held authorizing the issuance of such bonds at the time of the validating decree by the Circuit Court. But, as it appears that the attempt of the Legislature to add a great area to the territorial jurisdiction of the municipality was invalid, the bonds never became a charge against property in the territory so attempted to be added.
This case is to be distinguished from those cases wherein it has been held that bonds issued by a municipality might be *Page 781 held to be a charge against property included within a defacto municipal corporation at the time of the issuance and validation of the bonds, for the reason pointed out above, that in this case the issuance of the bonds was authorized by the Town of Pompano and the bonds were validated as the valid and binding obligation of the Town of Pompano, though actually thereafter issued under the power vested in the Town of Pompano, by its succeeding corporation, the City of Pompano, which power and authority could under the terms of the statutes involved, supra, bind no more than could have been bound by its predecessor the Town of Pompano. The effort here is not to require the tax to be levied upon only that territory which was chargeable with the bond issue involved, but it is to require a levy of tax over all that area included by the legislative Act, Chapter 13324, supra, and as this relief is not available, the motion for peremptory writ, notwithstanding the return, must be denied and the cause dismissed.
It is so ordered.
TERRELL, C.J., and THOMAS, J., concur.
WHITFIELD, P.J., concurs in denying peremptory writ of mandamus.
CHAPMAN, J., agrees to the conclusion.
BROWN, J., dissents.