On November 7, 1932, by an opinion filed as of that date, this Court ordered the alternative writ of mandamus to be quashed, because the command thereof was too broad. However, relators were permitted to amend their alternative writ to conform to the opinion of this Court and to have a peremptory writ to accord therewith.
An amended alternative writ has been filed pursuant to the leave given to amend. A peremptory writ, to be issued in accordance with the amended alternative writ, is moved. But the respondents, City of St. Petersburg and its officials, object to the issuance of a peremptory writ in accordance with the alternative writ of mandamus to be amended. The ground of that objection is that the writ, as amended, does not conform to the "zone" system of taxation for bond debt service, previously sustained by us, in that the amended alternative writ requires the respondents to levy in Zone 4 of the City, the same amount of tax that is required to be levied in Zone 1. The latter feature, it is contended, is neither authorized nor required by law.
We consider the objection interposed as properly presented for our consideration by the respondents' return which shows compliance with every command of the proposed peremptory writ sought to be obtained through the amendment to the alternative writ, except the command respecting the tax levy required to be made in Zone 4.
The question presented by the amended pleadings is whether or not the last territory added to the City of St. Petersburg, known as Zone 4, should be taxed at the same rate as the area within the original corporate limits, or whether said Zone 4 should be relieved of the levy for taxes to pay the bonded indebtedness of the City of St. Petersburg existing at the date of the annexation of Zone 4 to the City.
All the taxable property within the City of St. Petersburg, *Page 750 as extended by the several additions to its area, has heretofore been taxed at an equal and uniform rate for all operating expenses of the City, but at different rates for debt service. This plan of taxation was in our previous opinion in this case, approved by us as being in accordance with the applicable laws of the State pertaining to the City of St. Petersburg.
But the suggestion is made that the method by which Zone 4 was in law and in fact annexed to the City, did not preserve for it the benefit of the limitation on taxation for pre-existing bonded debts which we held to be applicable to other annexed areas added to the City under Section 3054 C. G. L., 1921 R. G. S.
The City limits of St. Petersburg were defined by Chapter 6772, Acts of 1913. Thereafter additional territory was from time to time added to said City by ordinances passed, and ratified by election pursuant to Chapter 5464, Laws of Florida, Acts of 1905, carried forward into the general laws of Florida as Section 3054 C. G. L. supra.
It is admitted on the record in this proceeding that Zone 1 of the City of St. Petersburg is that part of its present actual territorial limits, defined in Chapter 6772, Acts of 1913, and collectively outlined in the following ordinances:
"No. 360, passed October 12, 1912; No. 466, passed November 30, 1914; No. 471, passed December 10, 1914; No. 472, passed December 17, 1914; No. 480, passed March 9, 1915; No. 481, passed March 9, 1915; No. 485, passed March 16, 1915; No. 486, passed March 16, 1915;
It is also admitted that Zone 2 consists of that certain additional territory annexed under and by virtue of Ordinance No. 88-A, passed December 15, 1920, and Ordinance No. 89-A, passed December 15, 1920, both of which became effective pursuant to Section 3054 C. G. L., and that Zone *Page 751 3 of the City consists of that certain additional territory now included in the City's territorial area, and which was annexed thereto, by virtue of Ordinance No. 347-A, adopted March 2, 1925, that likewise became effective pursuant to the provisions of said Section 3054 C. G. L., supra.
Section 3054 C. G. L., supra, as we pointed out in our previous opinion, entered into and became a part of the annexation proceedings had under it, and operated as a limitation upon the taxing authority of the City, so long as it remained an applicable statute. This section of the general statutes expressly enacts that territory annexed to a City by ordinances adopted under it, shall not be liable for, nor taxed to pay, any bond indebtedness of the City existing at the time of the election thereby provided for. Therefore Zones 2 and 3 as hereinbefore mentioned, are within the protection of the guaranty of Section 3054 C. G. L., supra, against liability or taxation for pre-existing debts of the City of St. Petersburg, so long as that section of the general law remains applicable and in force.
But Zone 4, so the pleadings now before us show, was added to the City by virtue of Ordinance No. 470-A, which purports to have been adopted pursuant to Section 1918 R. G. S. (3051 C. G. L.). But Section 1918 R. G. S., supra, was not applicable to the City of St. Petersburg on the date of the adoption of Ordinance No. 470-A, because the City of St. Petersburg was on July 19, 1926, (the adoption date), a city of over ten thousand inhabitants, and had a special charter from the Legislature. These factors put the City of St. Petersburg within the purview of Section 3054 C. G. L., supra, which applies to cities of more than ten thousand population. The fact that St. Petersburg had a special legislative charter took it out of the purview of Section 1918 R. G. S. (3051 C. G. L.). See State ex rel. Davis v. City of Homestead, 100 Fla. 354, 100 Fla. 361,130 Sou. Rep. 28. *Page 752
But be that as it may, the annexation ordinance (No. 470-A) was actually adopted by the proper municipal authority and the added territory specified therein became annexed to the City in fact, although the power of annexation by ordinance was defectively exercised in that no election was held as provided and required by Section 3054 C. G. L., supra, to which the act of annexation by ordinance would be referable.
However, it appears that notwithstanding the stated irregularity that occurred in reciting that the ordinance of annexation was adopted under an inapplicable statute, and notwithstanding the irregularity that occurred consisting of the failure to have an approval of the annexation ordinance by an election, called and held in accordance with the only applicable statute,* the Legislature with evident knowledge of the irregularities referred to, validated and confirmed the annexation ordinance No. 470-A, by enacting Chapter 13364, Laws of Florida, Special Acts of 1927, which had the effect of validating annexation Ordinance No. 470-A, as an Ordinance of the City. The annexation ordinance having been validated by legislative act, Zone 4 became a part of the City with like force and effect as if the annexation ordinance had been proposed, adopted and ratified in accordance with the applicable statute* permitting the same to be done.
The record shows that the respondent City of St. Petersburg, and its taxing authorities, have ever since the enactment of annexation Ordinance No. 470-A, assumed that such ordinance upon its validation by the Legislature, became subject to the same statutory limitations as are set forth in Section 3054 C. G. L., supra, to the effect that territory annexed by ordinance should not be liable for, nor taxed to pay, any bonded indebtedness of the City of St. Petersburg, existing at the time of the annexation. *Page 753
Thus, regardless of the erroneous recital of an inapplicable statutory authority for adopting it, Ordinance No. 470-A has been validated and has been administered by the municipal authorities as having been adopted pursuant to, and subject to the limitations of, the requirements of Section 3054 C. G. L.,supra. All past tax levies have been made on this practical construction of the ordinance, commencing with the year 1926. The statutes enacted by the Legislature during this period show that the construction and practice of the city officials in the particular just mentioned, have been validated by the Legislature which by the enactment of Chapter 13374, Acts of 1927, recognize and confirm taxes which had been levied in Zone 4 on the same plan that taxes had been levied in Zones 2 and 3. See Middleton v. St. Augustine, 42 Fla. 287, 29 Sou. Rep. 421. Chapter 15512, Acts of 1931, enacted after the present charter was passed, continued this practical construction by again validating existing tax levies which had been made according to the past construction of the laws controlling the city's taxing authority under the zone system.
We therefore hold, in line with what was said by this Court in State ex rel. Comfort v. Leatherman, 99 Fla. 899,128 Sou. Rep. 21, that this practical long continued construction of the effect of the Zone 4 annexation ordinance having been made, and it having been recognized by subsequent legislative acts enacted in the light of it, such ordinance as so construed becomes the applicable law governing tax levies for debt service in Zone 4 of the City of St. Petersburg under annexation Ordinance No. 470-A, and that the limitations on the authority of the City, and the guaranties to the inhabitants of territories annexed by ordinance, which are applicable to Zones 2 and 3 under Section 3054, C. G. L., supra, apply also to Zone 4 and are binding on the City of St. Petersburg with reference thereto. *Page 754
So holding, we sustain the respondents' answer, and deny the peremptory writ with reference to the tax levy in Zone 4, with leave to relators to amend the alternative writ to conform to this opinion, whereupon a peremptory writ may issue in accordance with such amended alternative writ, if the amendment be made within ten days.
Peremptory writ denied, with leave to amend alternative writ to conform to Court's opinion with reference to Zone 4.
BUFORD, C.J. AND WHITFIELD AND DAVIS, J.J., concur.
BROWN, J., concurs in the conclusion.
ELLIS, J., dissents.
* Section 3054 C. G. L., 1921 R. G. S.