Opinion
December 18, 1951. Rehearing Denied February 22, 1952.
Richard W. Ervin, Atty. Gen., T. Paine Kelly, Asst. Atty. Gen., George C. Dayton, Dade City, Chester H. Ferguson, Tampa and David J. Kadyk, Tampa, for relator.
Morris E. White, Tampa and John Germany, Plant City, for respondent.
This matter is ready for decision on the information in quo warranto, the motion to dismiss, and the answer.
A statutory court of record for Pasco County was created by the legislature in 1945. The requirements of Section 21 of Article III, Const., F.S.A., with reference to notice of "intention to apply" for special legislation were followed and the act was passed as a local bill. Chapter 22837, Laws of Florida, Acts of 1945.
The respondent was appointed to the judgeship and in the election of 1948 was elected for a full term of four years beginning 4 January 1949.
At the regular session of the legislature of that year there was enacted Chapter 25482 repealing Chapter 22837, creating the court, but by its own terms this act was not to become law until approved by a majority of the electorate at the general election in 1950. If approved, the repealing act was to take effect the first Tuesday after the first Monday in January, 1953, that being the expiration date of the commission of the incumbent judge. At the election a majority of the voters cast their ballots in favor of the abolition of the court.
It should be emphasized here that the first act was passed as a local bill after prior notice; the next act as a local bill with subsequent referendum. The relevance of this distinction will be developed as we comment on the points presented.
In 1951 the legislature by general law, Chapter 26811, repealed both Chapter 22837 and Chapter 25482.
These circumstances form a basis for the primary question: the effectuality of the last act, a general law passed without notice or provision for referendum, to abolish the court established by an apparent special act, and therefore, to accelerate the time at which the court and the judge should cease to function.
To determine the matter requires a thorough study of three sections of the constitution and the expressions of the court on the general subject of establishment and abolishment of courts. Of course a decision will hinge on the nature of the three acts, irrespective of the procedure followed in their enactment, that is, whether they were actually local in character, or had to be.
In State ex rel. Johnson v. Quigg, 83 Fla. 1, 90 So. 695, this court holding that the legislature had power under Section 1 of Article V to create juvenile courts in one or all counties of the state, upheld the court in question which had been established by an act pursuant to the notice described in Section 21 of Article III. From that circumstance alone the act appeared to be special or local. It was not decided whether such a court should be created by local or general law, but at that time notice of this sort of legislation was required, and there was no provision that a referendum could take the place of notice.
We turn now to our decision in State ex rel. Landis v. Dickenson, 103 Fla. 907, 138 So. 376, 377. The legislature had passed an act, Chapter 11357, Laws of Florida, Acts of 1925, establishing civil courts of record in counties having a population of more than 100,000. Hillsborough County was in that category and such a court was organized there. In 1931 Chapter 14663 was, to quote from the opinion, "introduced * * * and passed as a so-called local or special bill" notice having been published in accord with the provisions of Section 21 of Article III of the Constitution. This act abolished the court in that county. So here we have a court created under general law and abolished by an apparent special law.
In this connection the court made comments that are pertinent to the immediate problem. The court said, for instance, "Whether it is competent for the Legislature to establish such a court as this by special or local law or not, it is undoubtedly competent by statutory enactment to abolish such a court when once established. And this may be accomplished by the passage of any legislative act which is not unconstitutional and which plainly evidences the intent that such legislative abolition of the court shall follow."
Although the point now under consideration was not expressly decided, the court saying it might "be possible to create a special statutory court in a particular county by special or local law" if procedure in the tribunal was governed by general law, the court did conclude that a special act abolishing a court established under general law was "not necessarily unconstitutional."
It may be true that in many, if not most, instances where a court has been established in a single county notice of application for the passage of such legislation has been given, but it does not follow that such notice was in those cases indispensable to the legality of the act. Counsel for respondent who have obviously made an exhaustive research of the authorities say frankly in their brief that the procedure so used is not decisive of this controversy. While we appear to have held that a court may be created by special act, and abolished by special act as well, we do not seem to have been placed in our present position of being obliged to decide whether such action must be taken by that kind of legislation.
A few paragraphs ago we commented on the amendment of Section 21 of Article III adopted in 1938 because we thought it might have had a bearing on the interpretation appearing in those opinions dealing with similar subjects before the amendment. It was theretofore provided that notice of the proposed legislation should be given as a condition precedent, so to speak, to its validity. So, the notice could have amounted to no more than surplusage if the act was in fact general. In other words, the law abolishing the court in Hillsborough County may have been considered not unconstitutional because if general the notice was useless while if local the notice had been given. It was easy to decide that inasmuch as the bill would be valid in either classification it could not have been unconstitutional.
Writing with candor, we wish our situation now were so comfortable, but here we have both kinds, of acts, a so-called local one, notice of passage of which was given, and another where the referendum was invoked. At any rate we can proceed, without any examination into the legality of the first, establishing the court, on the theory that general or local it was good.
We must then, at last, decide how abolition must be accomplished, the necessity arising from the fact that the first law, Chapter 25482, abolishing the court was attempted to be made effective by referendum under the provision of the 1938 amendment to Section 21 of Article III. It would not necessarily follow that such an act could be local as well as general, as in the case of an act passed after notice, in other words, that the provision for referendum could be considered surplusage.
We are now forced to make up our minds about the constitutional method of abolishing, and we may say establishing, a court in one named county by authority of Section 1 of Article V, that is, whether by local law as was undertaken by the passage of Chapter 25482 or general law as was attempted by the passage of Chapter 26811.
Section 20 of Article III of the Constitution provides that the "Legislature shall not pass special or local laws" in "enumerated cases" which do not include establishment of courts but do include "practice of courts of justice." In the following section there is the provision that in these enumerated cases "all laws shall be general * * * but in all cases not enumerated * * * the Legislature may pass special or local laws * * *," if the conditions of notice or referendum are observed. This does not mean, however, that every proposed law dealing with a subject other than the ones listed must be passed as a local or special measure.
To repeat, the nature of the subject dealt with must determine the general or special character of the bill and to fix it so far as a court is concerned we must examine it in the light of Section 1 of Article V vesting judicial powers in certain designated courts "and such other Courts * * * as the Legislature may * * * establish."
We have held, in State ex rel. Bliss v. Blitch, 100 Fla. 809, 130 So. 444, that the establishment of a court in a named county was "not among the classes of laws enumerated in section 20, article 3, Constitution, that, under section 21, 'shall be general and of uniform operation.'" Notice of the contemplated law had been given in accordance with this section of the Constitution as it existed prior to 1938.
The opinion of this court more nearly in point is found in State ex rel. Watson v. Roberts, 157 Fla. 368, 25 So.2d 888. A juvenile court had been established in Monroe County by local or special act naming that county and later the legislature undertook to strip it of all power and jurisdiction by an act effective in counties having a population of not less than 14,000 and not more than 14,200. The court, on the authority of State ex rel. Parrish v. Lee et al., 156 Fla. 578, 23 So. 731, held that the case was a special law passed in the guise of a general law and was therefore unconstitutional inasmuch as there had been no compliance with Section 21 of Article III. It is true that the court was not abolished outright, but certainly that was the effect of the enactment because all the court's powers and duties were attempted to be transferred to the county judge. For all practical purposes this was an abolishment of the court and the legislature undertook to accomplish it by general act which this court held could not be done.
In our effort to harmonize a decision of the present controversy with what we have hitherto said, we come to the conclusion that the legislature can exercise its power under Section 1 of Article V to abolish a court in a single named county only by special or local legislation whether the court was thus established, or created by a general act based on population or other permissible classification.
We realize that there is much responsible authority for the proposition that a court, from its very nature, becoming as it does under our decisions a part of the judicial system, where the practice must be uniform throughout the state, is of such character that its establishment is a proper subject for general legislation. But we are conscious also of the truth that there is much about a court established in a designated county that makes it local or special in character. The very one with which we are now dealing, of course, operates wholly within one county. The burden of the judge's salary falls on the taxpayers of that county. The judge is required to be a resident of that county and the executive officer and other officers of the court must be resident there also. The people of the county seem to be the ones immediately affected and, incidentally, the ones more familiar with the need for the court, or lack of it, and the wisdom of retaining or discontinuing it.
There can be no question about the matter being debatable and, indeed, the Attorney General has presented a most forceful argument and has cited many authorities from other jurisdictions in support of his position that the court could be abolished only by general law, but we, influenced by our former expressions on the matter, have the conviction that the court was properly discontinued by the second act which became effective through referendum and that the last act was ineffectual.
Accordingly, the motion to dismiss is granted and the information in quo warranto is quashed.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.