In the above opinion Mr. Justice WHITFIELD has made a most valuable and important contribution to the jurisprudence of this State relating to the subject treated, and with the greater part of his able opinion I fully concur. Indeed, it is with a considerable degree of diffidence and trepidation that I dissent in any respect. But I cannot see my way clear to concur in all that is said in the later portion of the opinion with reference to the inadequacy of the remedy of quo warranto as applied to the facts of this case, nor can I concur in the conclusion reached.
True it is that this case presents a puzzling and difficult situation to deal with. To grant a judgment of ouster as to the lands of the co-relators and leave the balance of the lands added by the acts of 1925 and 1927 inside the city would be to create a municipal checker-board. But my view is that we should declare those sections of the Acts of 1925 and 1927 extending the boundaries of the city beyond the original pre-existing boundaries unconstitutional and void, under the principles laid down in the Stuart case as the predicate upon which to base the judgment of ouster prayed for by the Attorney General and his co-relators. The sections of the Acts referred to extended the boundaries so as to embrace an area six miles, square or thirty-six square miles, 23040 acres, whereas the pre-existing boundaries embraced an area of only one and a half miles square, containing only 1440 acres. The expanded area was out of all *Page 669 proportion to the existing population of the municipality, and most of the lands thus added were purely rural in character, consisting largely of wild and unoccupied lands, and of a considerable area covered by orange groves, which could not be benefitted in any appreciable degree by being taken into the city, and which were not necessary to the reasonably anticipated growth and needs of the city, which city in 1925 had a population of only 1534, and, with the added territory had, as late as 1930, only 3,335, inhabitants.
While a small portion of the territory immediately adjoining the original city limits might have been legitimately annexed to the city as it existed prior to the Act of 1925, such a wholesale and extensive enlargement of the city's boundaries as was made by the Act of 1925 (and as re-enacted by the Act of 1927) was, to my mind, such an abuse of legislative power and such an invasion of the property rights of the co-relators as to render these sections of the two Acts unconstitutional and void, leaving the city limits just as they existed before the Act of 1925 was adopted, and thus furnishing an adequate ground for the institution of this quo warranto proceeding by the Attorney General and those co-relators whose lands were outside the range of municipal benefits and were thus unconstitutionally attempted to be taken into the city and subjected to the burden of municipal taxation, so that the city might be ousted from the exercise of municipal powers over such lands. Of course, this Court has no authority to establish municipal boundaries. As was said in the Stuart case, "only the Legislature can draw the line," but if the line is drawn constitutes a palpable and unreasonable invasion of the constitutionally protected property rights of the owners of the added territory, the courts can in quo warranto proceedings strike down the line thus unconstitutionally drawn, and leave it to the Legislature to draw a new line. *Page 670
The writer is doubtful of the power of courts of equity to enjoin the collection of taxes on the lands in question so long as they remain within the city boundaries and are taxed as the same rate as other lands in the city are taxed. We have held that injunction does not lie to test the legal existence of a corporate franchise, and that not collateral attack can be made upon the existence of a municipal corporation. See State ex rel. v. City of Sarasota, 92 Fla. 563, 109 So.2d 473, wherein it was also said: "in some of the states where a municipality is required or allowed to legally tax farm or rural lands within its limits at a different rate from that assessed against property in the built-up portions of the city, the remedy by injunction is permitted where the same tax rate is imposed on such outlying lands receiving no city benefits as to those that do; but such remedy is not available in this State, where all property within the municipal limits must be taxed at an 'equal and uniform rate,' and upon a 'just valuation.' Art. 9, Sections 1 and 5 of State Constitution. Injunction, however, may lie, in proper cases to enjoin the unlawful or unconstitutional use of powers granted by the State, though it cannot be used to test the legal existence of public or corporate franchises."
My thought is that if the property in question is lawfully and constitutionally within the city limits, the city cannot be enjoined from taxing it for municipal purposes at the same rate as all other property within the city, upon a fair and "just valuation," but if it has not (as I believe) been lawfully and constitutionally added to and embraced within the city boundaries, then quo warranto lies for the purpose of ousting the city from exercising any municipal powers thereover. And the mere fact that all the property owners did not join in the proceedings should not prevent us from according relief to the several hundred who did join as co-relators with the Attorney General. There may be cases *Page 671 where property within the limits of the a city may be zoned or classified for purposes of taxation as to bonded indebtedness, as in Miami and St. Petersburg cases, but here the city is asserting the right to tax this property for all municipal purposes, except for any bonded debt that may have been created subsequent to January, 1926.
Nor can we in this case hold the sections of the Acts of 1925 and 1927, enlarging the city limits, good in part and bad in part, without violating the legislative intent. If we held those sections bad as to the lands of the co-relators and good as to the remainder, it would, as above stated, create a municipal checker-board, so far as area is concerned. Those sections of the acts must be either void in toto or valid in toto. The Legislature could never have intended such a situation as would result from holding those sections invalid as to the lands of the co-relators and valid as to the balance of the area. To my mind, they are unconstitutional and void as a whole, leaving the city's territory as it was before they were enacted, and that this court should so declare, and then proceed to grant the judgment of ouster as prayed for.
ON REHEARING