State Ex Rel. Swanson v. Strickland

The relators, Swanson, Baxter and Ryan were officers and members of the Broward County Port Authority, the governing body of the Broward County Port District created by Chapter 15107, Laws of Florida, 1931.

At the time of the enactment of that statute, Swanson, Ryan, Wray and Sherwin were the members of the old Broward County Port Authority created by Chapter 12562, Laws of 1927, and amended by Chapter 13940, Laws of 1929. Sherwin died after the enactment of Chapter 15107, supra, and Baxter was appointed by the Governor to succeed him as a member of the Port Authority.

No valid election was ever held under Chapter 15107, supra, to choose the successors of Swanson, Baxter, Ryan *Page 793 and Wray. See Kuhn v. Swanson, et al., as Broward County Port Authority, 118 Fla. 335, 159 South. Rep. 29.

The Act of 1931, Chapter 15107, supra, provided that the present members of the Port Authority should hold the offices until January, 1935, or until their successors had been elected and qualified.

In a later case it was held by this Court that the Governor had no authority to make appointments of members of the Port Authority upon the assumption that their terms of office under the Act of 1931 expired on January 1, 1935, because it was clear that the Act contemplated that the members of the Port Authority chosen under the Act of 1931 should continue in office until their successors were elected by the qualified electors of the Port District. See State, ex rel. Landis, Atty. Gen., v. Baxter,122 Fla. 312, 165 South. Rep. 271, opinion filed January 1, 1936.

Now in 1935 the Legislature, by Chapter 17509, Special Acts, amended Sections 9, 10, and 12 of Chapter 15107, supra. That Act of 1935 was approved by the Governor May 18, 1935. The purpose of the Act among others seems to have been to empower the Governor to appoint three members of the Port Authority in place of the four members whose terms under Chapter 15107 expired on January 1, 1935. It is unnecessary, however, to discuss the Act of 1935, Chapter 17509, supra, because a few days later the Legislature enacted Chapter 17506. It was approved June 5, 1935. That Act repealed Chapter 15107, supra, which if valid carried with it the amendments provided for by Chapter 17509, supra.

Chapter 17506 established a new "Broward County Port District." The Act provided that the governing authority of the District should be known as the "Broward County Port Authority" and should consist of three "Port Commissions," *Page 794 prescribing their terms of office, their election, the filling of vacancies, occasioned by death, resignation or removal, by appointment by the Governor.

It provide that DeLoach, LaBree and Strickland, "who have heretofore been appointed and commissioned by the Governor as members of the Broward County Port Authority, are hereby named and designated as the three Port Commissioners to constitute the said Port Authority."

But the case of State, ex rel. Landis, Attorney General, v. Baxter (decided January 1, 1936), supra, held that the Governor had no authority under the Act of 1931 to appoint members of the Port Authority in place of those chosen under that Act whose successors had not been elected and whose terms were to expire under that Act in January, 1935, or who were to continue in office until their successors were elected and qualified. As no valid election was held those who were chosen under the Act of 1931 continued to hold the offices.

The naming of DeLoach, LaBree and Strickland in the Act of 1935, Chapter 17506, as the three Port Commissioners to constitute the Port Authority could derive no virtue or power from the attempted appointment of them by the Governor, because that attempted appointment was null and void if made under Chapter 15107, supra, or if made under Chapter 15709, Acts 1935,supra, it nowhere appears that they ever went into office and supplanted Swanson, Baxter and Ryan, which the issuing of the constitutional writ in this case recognized.

Upon the enactment of Chapter 17506, supra, Broward County Port District, as the same was established in 1931, passed out of existence and a new Broward County Port District came into existence with its new powers and limitations. Swanson, Baxter and Ryan were de facto officers *Page 795 of the new Port District, because they were the legally constituted Port Authority under the Act of 1931 and passed into control of the new district and remained so until the officers of the new district should be chosen under the authority of the Constitution and law.

They were de facto officers of the new district because they were in possession of the offices, powers, property and franchises of the old district which were required to be surrendered to the legally chosen officers of the new. See Art. IV, Chapter 17506.

The Legislature therefore undertook to appoint the officers of the new Port Authority and limit the term during which they should hold their offices. The Act provided that the officers named by the Legislature should hold office until the first Tuesday after the first Monday in January, 1937, or until their "successors are elected or appointed and qualified."

Chapter 17507, Special Acts 1935, Laws of Florida, which was approved May 9, 1935, made no provision for the appointment by the Governor of Port Authorities or Port Commissioners. Whether the Governor under Chapter 17509 appointed three members of the Broward County Port Authority to supplant the four who were duly chosen under the 1931 Act does not appear in this record, but if he did appoint them the Act of 1935, Chapter 17506, repealed Chapter 17509, which was merely an amendment to Chapter 15107 expressly repealed by Chapter 17506, supra. The recognition and attempted continuing in force of an act of the Governor which was brought to an unfruitful end by the repeal of the Act under which he may have made the appointment, could have no other effect logically than an attempted appointment of the three Port Commissioners by *Page 796 the Legislature instead of by the Governor, or instead of an election by the people as the Constitution requires.

To say that the Legislature merely recognized and continued in force by Chapter 17506, supra, the Governor's appointment of Port Commissioners under Chapter 17509, supra, which was an amendment of Chapter 15107, supra, creating the district which was abolished by Chapter 17506 is the use of words which confuse thought.

The naming of Port Commissioners by the Legislature could give no force or effect to the Governor's act appointing Port Commissioners for the District created by Chapter 15107, as amended by Chapter 17509, because that appointment by the Governor was nullified by Chapter 17506, which abolished the District for which the Governor named the Port Commissioners, and it cannot be said that the Governor in making the appointment intended that his appointees should be the Port Commissioners of a new district not to be created until thirty days thereafter. Such a statement would be an incongruity.

The naming by the Legislature of the same persons to be Port Commissioners for the new district therefore was merely an appointment by the Legislature of officers to fill the offices created by the new Act. Nor was the appointment temporary, for they were appointed to hold office for a year and a half, or until their successors should be elected and qualified.

The Constitution required the Legislature to provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by the Constitution. Sec. 27, Art. III, Const.

The Constitution does not otherwise provide for the selection of Port Commissioners. Port Commissioners of *Page 797 Broward County Port District are State officers within the meaning of the Constitution above quoted.

An examination of Chapter 17506, supra, clearly shows that the Broward County Port District is an administrative agency requiring the exercise of sovereign governmental powers, and such powers may be exercised only by officers duly commissioned for that purpose. See Dade County v. State, 95 Fla. 465, 116 South. Rep. 72; Kuhn v. Swanson, supra; Blitch v. Buchanan, 100 Fla. 1202, 131 South. Rep. 151; Commissioner of Internal Revenue v. Ten Eyck, 76 Fed. Rep. 2d 515; State v. Jones, 79 Fla. 56, 84 South. Rep. 84.

The Port District is in fact a State agency, the officers for which are required by the Constitution to be either appointed by the Governor or elected by the people.

The claim of the respondents therefore is necessarily that ofde facto officers and is in no sense superior to the claim of Swanson, Baxter and Ryan, who are in fact in possession of the properties of the Port District by virtue of their selection under Chapter 15107, supra.

The contention of relators that the Special Act, Chapter 17509,supra, as well as Special Act, Chapter 17506, supra, were not constitutionally passed by the Legislature because the requirements of Section 21 of Article III of the Constitution as amended in the year 1928, were not observed is clearly supported by the allegations of the information.

The particulars in which such requirements were not observed in the matter of the passage of Chapter 17509, supra, (House Bill No. 915), the Act under which the respondents were appointed by the Governor, are fully set out in the information in the nature of quo warranto. Those particulars relate to the notice required to be given as to the substance of the proposed legislation, the designation of the *Page 798 locality to be affected, the attaching of a copy of the notice to the bill introduced and the affidavit of proof of publication of the notice and further that the information imparted by Honorable Dwight L. Rogers, Representative from Broward County, to a member of the Port Authority was misleading in a matter of substance relating to the proposed bill. Those allegations were admitted by the demurrer to the information. The allegations were of sufficient substance to affect the validity of the bill's passage and to show that the purpose of the constitutional amendment was not regarded and the attempted legislation was bad. See Board Public Instruction v. Brown, 114 Fla. 711, 154 South Rep. 850.

The demurrer therefore should have been overruled with leave to respondents to answer if they deem it to be necessary, and the constitutional writ heretofore issued continued in force.

BROWN, J., concurs in the conclusion.