State Ex Rel. Gibbs v. Couch

This case involves an extremely important question — the rights of cities and towns to local self government.

The main question involved might be more particularly outlined as follows: "Where the Legislature by a local Act purports to abolish an existing municipality and simultaneously create a new municipality with the same name, substantially the same form of government, within the same boundaries, embracing the same population, and possessed of substantially the same powers and functions, owning the same property, obligated to pay the same debt and liabilities *Page 378 as the old municipality, but which Act attempts to legislate out of office the elected governing body and legislate into office a new governing body composed of members to be appointed by the Governor to hold office for a period of sixteen months, without including in the Act a referendum clause or otherwise giving the citizen of the city any choice in the matter whatsoever, is not such Act or at least that part of it attempting to change the personnel of the city commission, unconstitutional and void?

I think this question should be answered in the affirmative for much the same reasons as were stated in my dissenting opinion in the case of State ex rel. Johnson v. Johns (the Hollywood case), 92 Fla. 187, 109 So. 228, and my concurring opinion in the case of State ex rel. Landis v. Ault (the Hialeah case), 129 Fla. 686, 176 So. 789.

I do not question the motives of the Legislature in passing this particular Act, but I do question its powers to pass an Act of this nature.

It is true that Section 8 of Article VIII of our Constitution vests the Legislature with the power to establish and to abolish municipalities, to provide for the government (not to govern them) and to prescribe their jurisdiction and powers and to alter or amend the same at any time; provided that provision shall be made for the protection of its creditors. But in Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716, we held that the powers vested in the Legislature must be construed in connection with the Constitution as a whole, every work of which should be given effect, and that in the exercise of the power given to the Legislature by Section 8 of Article VIII it could not violate any other provision of the Constitution either express or implied.

Webster's New Unabridged Dictionary, Second Edition, defines the word "municipal" as follows: *Page 379

"Municipal, adj. (L. municipalis, fr. municeps an inhabitant of a municipium, or town possessing the right of Roman citizenship, a free town; fr. munia official duties, the root of capere to take. See mean common: Heave,) 1. Rom. Hist. of or pertaining to, or of the nature of a municipium; as municipal rights. 2. a. Enjoying a local self-government like that of the Roman municipium; — said of a town, city, etc. b. Of or pertaining to, or characteristic of, such a corporation. 3. Of or pertaining to the internal or governmental affairs of a state, kingdom, or nation — used chiefly in the phrasemunicipal law."

The same Dictionary defines the word "municipality" as follows:

"Municipality, n.; pl. -ties (F. Municipalite.)

"1. A town, city, or other district having powers of local self-government; a municipal corporation; also, the community under the jurisdiction of a municipal government; specif., amunicipium. Cf. Borough, 6a.

"2. The administrative area into which provinces are divided, comprising a number of barrios. See Poblacion. Phil. 1."

So the strongest characteristic of the Dictionary definition of these words clearly shows that the word "municipal" means enjoying a local self government, and the word "municipality" means a town or a city having powers of local self government.

As shown in my two previous opinions in the Hollywood and in the Hialeah cases, above referred to, this Dictionary meaning coincides with the historical meaning of these words.

It is a well-settled rule of constitutional construction that words should be given their plain and obvious meaning, the meaning that they had at the time the Constitution was *Page 380 written. Applying this rule when the Constitution said that the Legislature should have the power to establish "municipalities," is necessarily meant self-governing municipalities. Of course, the Legislature has the power to establish municipalities with various differing charter previsions, and they can alter these charter provisions. But the Legislature has no power under the Constitution to create municipalities devoid of the power of self-government. And that is what the Legislature has attempted to do in this case, for a period of sixteen months. To hold otherwise would also violate the time-honored principle that there shall be no taxation without representation. We Americans thought enough of that principle to go to war with Great Britain about it. That was one of the main causes of the Revolution. If the Legislature has the power, at will, whenever it meets, by going through the form of abolishing and establishing a municipality at one and the same time, and by such act to remove from office the elected officers of the municipality and place in the governing body of the municipality officers of its own selection, or provide for their selection by the Governor, which governing body and which officers have the power of levying and collecting taxes, then we plainly have taxation without representation. Whether there be any specific provision of the Constitution which prohibits this, it certainly constitutes a radical departure from one of the fundamental principles of American government, both national, State and local.

Section 2 of the Declaration of Rights, in our State Constitution, provides that "All political power is inherent in the people." The election of the officers who shall conduct the government of a municipality is certainly a political power and is inherent of the people of a municipality. The Declaration of Rights, which constitutes the first 24 sections *Page 381 of our Constitution, embraces the cardinal features of Magna Charta, and the Bill of Rights, which were wrung from reluctant monarchs in Great Britain by the blood and self-sacrifice of our forbears, and also most of the provisions of the Bill of Rights of our Federal Constitution, represented by the first 10 amendments, and makes some additions thereto.

Even when exercising the broad powers vested in the Legislature by Section 8 of Article VIII of the Constitution, the Legislature cannot act arbitrarily and in disregard of other rights, either express or implied, that are given to the people by the Constitution. Thus the Legislature cannot destroy the political rights of the inhabitants of a city or town, nor can it directly or through its own named or appointed agents, impose municipal taxes upon the citizens and property owners of the city or town. Thus, Section 5 of Article V of the Constitution provides that: "The legislature shallauthorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes," but it does not give the legislature the power to itself, or through its agents, to assess or impose such taxes.

The doctrine that the Legislature has unlimited powers with reference to municipalities was directly repudiated by this Court in the case of State ex rel. Davis v. City of Stuart,97 Fla. 69, 120 So. 335, 97 A. L. R. 1307. It was held in that case that under our constitutional system, arbitrary and unlimited power is not vested in any department of the State government. Attention was called in that case to the fact that it is significant that our Constitution, in the Declaration of Rights, commences by specifying those things which the State government cannot do, before specifying certain things that it may do. The Declarations *Page 382 of Rights have their roots deep in the past and have cost us and our forefathers much, and breathe the spirit of that sturdy and self-reliant philosophy of individual liberty and responsibility which underlies our entire system of government. It is true, they are old; but so are the Ten Commandments and the law of gravitation, and nearly every other fundamental truth. In the Stuart case it was said:

"No race of hot-house plants could ever have produced and compelled the recognition of such a stalwart set of basic principles, and no such race can preserve them. They say to arbitrary and autocratic power, from whatever official quarter it may advance to invade these vital rights of personal liberty and private property, 'Thus far shalt thou come, but no farther.' They constitute a limitation upon the powers of each and all the departments of the State government. Thus no department, not even the legislative, has unlimited power under our system of government. These declarations even limit to some extent, the exercise of the tremendous, but inherent and well established powers of taxation and eminent domain." Cooley Const. Kim., 8th Ed. 533-602; 1108-1222; 1026-1039, 1062-3. Cooley on Taxation, 4th Ed., Secs. 58, 67, 69, 131, 143, 144, 247-9, 925."

Judge Cooley, one of the greatest authorities on Constitutional law which this country has ever had, said: "The State may mold local institutions according to its views of policy or expediency, but local government is a matter of absolute right and the State cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the State not only shaped it government, but at discretion sent in its own agents to administer it;" etc.

The New York Court in the case of People ex rel. v. *Page 383 State Board of Tax Commissioners, 174 N.Y. 417, 63 L. R. A. 884, had this to say:

"The principle of home rule, or the rights of self-government as to local affairs, existed before we had a Constitution. Even prior to Magna Charta, some cities, boroughs, and towns had various customs and liberties which had been granted by the Crown, or had subsisted through long use, and among them was the right to elect certain local officers from their own citizens, and, with some restrictions, to manage their own purely local affairs. These customs and liberties with other rights, had been so often trampled upon by the King as to arouse deep hatred of centralization of power and we find among the many grants of the Great Charter that the city of London shall have all its ancient liberties and its free customs as well by land as by water. Furthermore, we will and grant that all other cities and burghs and towns * * * shall have all their liberties and free customs.' (Chap. 13) * * *. After this marvelous statute, rights, which before had rested largely on custom, rested on law, with a guaranty against violation by the amazing covenant of King John that, if he refused redress for an 'excess committed,' his subjects should be released from their allegiance, and at liberty to make war upon him, saving harmless our person and the persons of our Queen and children and when it hath been redressed they shall obey us as they have done before.' Chap. 61.

"The rights thus secured after a long struggle and by great pressure, although at times denied and violated by the ruling monarch, were never lost, but were brought over by the colonists the same as they brought the rights to breathe, and they would have parted with the one as soon as the other."

In another case the same eminent court said: "This *Page 384 right of self-government lies at the foundation of our institutions, and cannot be disturbed or interfered with, even in respect to the smallest of the divisions into which the State is divided for governmental purposes, without weakening the entire foundation." (150 N.Y. 459.)

This Court has said in several cases that municipalities are legal entities, established for local governmental purposes, and in one case, Kaufman v. City of Tallahassee, 94 So. 697,84 Fla. 634, it was said:

"This Court has constantly adhered to the doctrine of municipal liberty in the administration of local affairs so far as the same is consistent with the provisions of our Constitution, prescribing the jurisdiction and powers of a municipality."

And in West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361, this Court said, speaking through Mr. Justice STRUM:

"In its purely governmental relations, a municipality is a subordinate political subdivision of the State, created for purposes of local government."

It is true that there is no specific provision of our Constitution guaranteeing local self government to cities and towns, but it was a right which existed at the time of, and for centuries before, the adoption of our Constitution, and is therefore embracing within the closing section of the Declaration of Rights which provides that: "This enunciation of rights shall not be construed to impair or deny others retained by the people."

For these reasons, as well as for those set forth in my preceding opinions in the Hollywood and Hialeah cases above referred to, I am of the opinion that the motion to quash the information in quo warranto should be granted.

I might say also that I am of the opinion that the preamble *Page 385 to this Act showed what its purpose was, and that the identity of the municipality was not destroyed by the Act, the new charter and the old charter except as to the attempt to change the personnel of the governing body, being, substantially the same. The preamble shows that the purpose of the Act was to oust the then elected and acting city officers and to install others in their places. See Dillon Munic. Corp. (Vol. 1, Sec. 339; McQuillin, Munic. Law, 2d Ed., Vol. 1, 790-791, Vol. 2, p. 182; Broughton v. City of Pensacola, 93 U.S. 266, 23 L.Ed. 896.

There is also serious doubt in my mind as to whether the Senate Journal complied with that provision of Section 21 of Article Ill of the Constitution which requires that: "The fact that such notice was established in the Legislature shall in every case be recited upon the Journals of the Senate and of the House of Representatives."

However, I believe that the reasons hereinabove given are sufficient to show the invalidity of this Act or at least that part of it attempting to oust the acting elected officers and place others in their stead, without resorting to the question arising under Section 21 of Article III, last mentioned.

The questions discussed in the foregoing opinion appear not to have been considered or ruled upon in Ex Parte Wells,21 Fla. 280, but in so far as the holding therein is inconsistent with the right of municipal self government, I think that case should be overruled. The same might be said of the Saunders case, 24 Fla. 226, 4 So. 801. Both these cases construed an Act passed before the Constitution of 1885 was adopted. It is not too late now to return to what I believe to be the true and sound construction of our present Constitution. *Page 386