Criminal Complaint Against U.S. Attorney Anarchy Albritton

INTERNATIONAL PRESS RELEASE CRIMINAL COMPLAINT AGAINST U.S. ATTORNEY “ANARCHY” BRIAN ALBRITTON CRIMINAL CONCEALMENT OF SCAM “O.R. 569/875” “Legislation which constitutes an invasion of the province of the judiciary is invalid.” Thursby v. Stewart, 138 So. 742 (Fla. 1931). Here, there were • NO “legislation” • NO lawmakers. “It is not, however, an established fact that the document is forged or invalid.” Doc. # 159, 04/21/10 p. 4, ¶ B. U.S. Attorney, “Anarchy” Brian Albritton

Case 2:09-cv-00791-CEH-SPC Document 159

Filed 04/21/10 Page 6 of 7

Respectfully submitted, A. Brian Albritton United States Attorney

By:

s/ Jennifer Waugh Corinis Jennifer Waugh Corinis Assistant United States Attorney Fla. Bar No. 49095 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6310 Facsimile: (813) 274-6200 Email: [email protected]

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Case 2:09-cv-00791-CEH-SPC Document 159

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admissions on file, and designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. Here, Plaintiffs have failed to establish that there are any facts in the record that are material, let alone that there are undisputed material facts. Conclusory statements cannot pass for “facts” in a summary judgment motion. B. Plaintiffs’ Motion Fails to Establish Any Material Facts

The “facts” Plaintiffs’ cite in their brief are not facts at all; rather, the facts consist of Plaintiffs’ insistence that a 1969 Lee County document is a forgery, and that all defendants know that it is a forgery: there was no genuine issue as to any material fact, because Governmental forgeries “D.R. 569/875" and “12-44-20-01-00000.00A0” were contrary to Florida and Federal law and null and void from the outset. The fake legal descriptions in said forgeries never existed, Plat Book 3, Page 25 (1912). It is not, however, an established fact that the document is forged or invalid. Plaintiffs make no effort to cite to anything in the record -- other than their own statements -- to establish any facts, material or otherwise. Thus, the Plaintiffs cannot meet their burden to establish that there is no genuine issue as to any material fact, and summary judgment must be denied. Celotex, 477 U.S. at 322. C. Plaintiffs Are Not Entitled to Judgment as a Matter of law

Plaintiffs fail to state any cognizable legal arguments in support of their conclusory allegations against the USAO Defendants. For example, they fail to plead even the bare minimum required to state a claim for fraud. Allegations of fraud must satisfy the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure Rule 9(b), which requires that “a party must state with particularity the 4

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BEN D. THURSBY v. ISAAC A. STEWART (12/23/31) SUPREME COURT OF FLORIDA, EN BANC Docket Number available at www.versuslaw.com Citation Number available at www.versuslaw.com December 23, 1931 BEN D. THURSBY, ET AL., APPELLANTS, v. ISAAC A. STEWART, APPELLEE; ISAAC A. STEWART, APPELLANT, v. BEN D. THURSBY, ET AL. APPELLEES An appeal from the Circuit Court for Volusia County; Daniel A. Simmons, Judge. Hull, Landis & Whitehair, of DeLand, for Board of Trustees of Volusia Co. Fair; W. J. Gardiner, for Daytona Beach, for Ben D. Thursby, et al., individually and as constituting Board of County Commissioners of Volusia County; Stewart and Stewart, for DeLand, for Solicitors for Isaac A. Stewart. Davis, Commissioner, Buford, C. J., And Whitfield, Ellis, Terrell, Brown And Davis, J. J., concur. Author: Davis DAVIS, Commissioner. -- Isaac A. Stewart, whom we will refer to as the complainant, the owner of property and a taxpayer in Volusia County, Florida, filed his bill of complaint in the Circuit Court of Volusia County against the members of the Board of County Commissioners of said County of Volusia, individually and as constituting the said Board of County Commissioners, Samuel D. Jordan, Clerk, etc., Volusia County Fair Association, Inc., a corporation, Board of Trustee of Volusia County fair, a corporation, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, individually and as constituting the members of "Board of Trustees of Volusia County Fair", a corporation, and herein alleged substantially that the said County Commissioners, without authority of law, donated and paid out, as a gratuity, the sum of four hundred dollars of the public funds of Volusia County to Volusia County Fair Association, a corporation, to help in securing the operation of a county fair, a warrant for said sum having been issued by the Chairman and Clerk of the said Board; that in the budget prepared by said Board, an appropriation of $6,000.00 was provided for to be paid out of the agricultural fund to the said Volusia County Fair Association, and that it was out of said appropriation that said sum of $400.00 was paid; that at the regular session of the Legislature of Florida, in 1931, a bill was passed entitled, "An Act requiring the Board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00) which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A.D. 1930, and to end on the 30th day of September, A.D. 1931." the same being known and referred to herein as Senate Bill No. 910; that the same Legislature also passed a bill entitled, "An Act creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, mainatain and carry on annually a fair or exposition in said county, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said Act not to exceed One Mill on the dollar, and giving the said Board of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said act and all funds derived from said tax or any other sources." the same being known and referred to herein as Senate Bill No. 911 and that both bills were approved by the Governor on June 11,

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1931; that pursuant to the terms of Senate Bill No. 910, the said Board of County Commissioners, had been requested by said Board of Trustees of Volusia County Fair, to pay over to them the sum of $6,000.00 which has been appropriated to Volusia County Fair Association, and that the defendants, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, were designated in Senate Bill No. 911 as such Board of Trustees; that although the complainant had objected personally to a number of said Board of County Commissioners against the payment of said sum, a meeting of said Commissioners had been called to be held on July 13, 1931, for the purpose of taking action and making payment of such money to the Volusia County Fair Association, and to include in their budget for the year 1931, such sum of money as may be required or demanded by the Board of Trustees of Volusia County Fair, and it was alleged upon information and belief that it was the intention of said Board of Commissioners to misappropriate the further sum of $6,000.00 by paying it over to the Board of Trustees of Volusia County Fair in accordance with the provisions of said Acts of the Legislature; that the appropriation to the Volusia County Fair Association was without authority of law, in that it was in violation of Section 9, Article X, of the Constitution of Florida, which provides that, "The Legislature shall not authorize any County X X X to obtain or appropriate money for or to loan its credit to any company, corporation, association, institution or individual," and that the Legislature is without power to turn over the administration of public funds or to expend or disburse the same in any way, except under and pursuant to law, by a duly commissioned officer of the State of Florida, or of the Counties of the State, for a valid County purpose. Complainant alleged further, upon the information and belief, that said bills, 910 and 911, copies of which were attached to the bill of complaint, are each unconstitutional because it is beyond the legislative power to impose compulsory taxation upon the people of Volusia County; that said bill 911, is unconstitutional and void because it is not authoritative in nature, but is mandatory as to the requirement that the County Commissioners pay said sum of money arbitrarily and without defining any purpose for which it is to be used, that it is not within the power of the Legislature to directly levy or compel the levying by a county of an ad valorem tax for an exclusive local purpose, or to compel the appropriation of money by a county in which the State has no concern, that it mandatorily requires the appropriation of money to be expended by non-commissioned officers, designated as such, in violation of the requirements of the Constitution, and that it violates Section 25 of Article III, of the Constitution, which requires that the legislature shall provide by general law, for incorporating educational, agricultural, mechanical, transportation, mining, mercantile and other useful companies or associations as may be deemed necessary, but shall not pass any special law on any subject, and any such special law shall be of no effect. The constitutionality of Senate Bill No. 911 is further attacked upon the grounds that, (a) it mandatorily requires the said Board of Trustees to acquire, purchase and take over in the name of the county, all property of Volusia County Fair Association, Inc., (at a sum not to exceed $83,000.00, and pledging the name and credit of Volusia County for the payment thereof), and to promote, maintain and carry on annually, a fair or exposition in said county, and it also, mandatorily requires the Board of County Commissioners to levy a tax to raise funds sufficient to carry out the provisions of the Act, (b) it requires the Board of Trustees, in effect, County Officers, to be freeholders to be elected by districts and not by the County at large, (c) it names and designates the said officers, until an election provided for therein, in violation of the provision of Section 27, Article III, which provides for an election of officers by the people or appointed by the Governor, (d) it permits the holding of such offices after the next gneeral election to be held in the State, (e) it -- a special law -- attempts to regulate and determine the compensation of certain officers provided for therein, (f) it provides that if the said Board of Trustees at the time of taking title to the said property, does not have on hand, funds sufficient to pay the purchase price in full, it is authorized and empowered to make and issue, interest bearing negotiable promissory notes in the name of Volusia County, for the deferred payment, and to secure the same by mortgage on all said property, or any parts thereof, (g) it is in conflict with Sec. 1486, Revised General Stats., Sec. 2191, Compiled General Laws of Florida, 1927, a general law which provides that, "No contract shall be let for the work on any road or street, construction or building of any bridge, erecting or building of any house, and that no goods, supplies or materials for county purposes or use be purchased when the amount to be paid therefor by the county shall exceed $300.00 unless notice thereof be advertised once a week for at least two weeks in some newspaper of general circulation of the County, calling for bids upon the work to be done, and for goods, supplies or materials to be purchased by the county and requiring in each case the bid of the lowest responsible bidder shall be accepted unless all bids are refused because same are too high." It is further alleged upon information and belief, that the Board of County Commissioners are about to levy the millage provided in said act to be levied, for the year 1931, and that the said Board of Trustees intends to pay to themselves out of the funds so collected and paid out of the public funds of Volusia County, or to be raised by general taxation, the salaries and compensation provided therein to be paid to themselves for services as such trustees, unless restrained by order of the Court. The complainant prayed for a temporary injunction, (1) restraining the members of the Board of Trustees of Volusia County Fair from paying to themselves or to one another, any salary or compensation for any services rendered, or to be rendered, in or about the performance of the duties prescribed by the Act creating the said Board of Trustees of Volusia County Fair, (2) restraining the said defendants from submitting "to the Board of County Commissioners of Volusia County, Florida, on the 1st Monday in July or at any time thereafter, any estimate of any pretended amount of money necessary to be raised for the purpose of carrying out the provisions of said act, to-wit, Senate Bill No. 911, as aforesaid, and that said Ben D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar and Davis Forster, and Saml. D. Jordan, Clerk of said Board, be enjoined from levying annually or at any time ad valorem tax for the purpose of carrying out the provisions of said Act," (3) restraining the Volusia County Fair Association and the individuals constituting the members of said Board of Trustees "from issuing any note under color of said Senate Bill No. 911 for the sum of $83,000.00 or any other sum of money in the name of the County of Volusia and State of Florida, for the purchase of any property or other assets of Volusia County Fair Association, Inc., a corporation organized and existing under and by virtue of the laws of the State of Florida, or in any wise pledging or obligating the County of Volusia and State of Florida to any extent whatsoever," and that said injunction be made permanent. The bill was sworn to by the Complainant.

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Notice of an application for a temporary injunction was filed in the cause, and thereupon the defendants, Volusia County Fair Association, Inc., and Trustees of Volusia County Fair, interposed certain objections to the granting of same, which objections, were under oath, and based, in substance upon the grounds that (1) the bill is multifarious, (2) that the Volusia County Fair Association, to whom the $6,000.00 appropriation was made, was chartered under the General Laws of Florida authorizing the formation of corporations not for profit, for the purpose of operating fairs, etc., and which law authorized the Board of County Commissioners to make contributions to such association, to assist in carrying out its purpose, and to expend in their discretion, such sums as they deem best in aiding the development of the agricultural, horticultural and live stock resources of the county, giving publicity to the same by aiding the exhibiting of such resources at or in connection with such fairs, including the offering and paying of premiums, (3) that Senate Bill No. 910 is in pari materia with Senate Bill No. 911, and that said Senate Bill No. 911 specifically declares that the purchase and taking over of the property of Volusia County Fair Association, and the promoting, maintaining and carrying on annually of a fair, the levying of the tax and paying the same over to the Board of Trustees of Volusia County Fair, are all for a valid County purpose, (4) that it is shown to be the duty of the County Commissioners to pay over the said sum of $6,000.00 and that no showing is made that any of the defendants are about to issue the said promissory notes, (5) that the appropriation of money to the Volusia County Fair Association is not for the benefit of any such company, but for the benefit of the County, and its citizens, (6) that it is not true that the tax sought to be enjoined or the appropriation of money sought to be enjoined, is one pertaining to an exclusive local affair, and in which State of Florida has no interest or concern, (7) that it is not true that the Board of Trustees of the Volusia County Fair are non-commissioned officers, but on the contrary, they have been commissioned in the form contemplated by the constitution of the State of Florida, (8) that Senate Bills numbered 910 and 911, do not authorize the County to loan its credit to any company, association or individual, (9) that the Board of Trustees of Volusia County Fair is nothing more than a subordinate public agency, established in aid of a public purpose, and that the provisions of Section 25, Art. 3, of the Constitution do not apply to such Board, and that Senate Bill No. 911 does not contain special legislation on subjects forbidden by said Section of the Constitution, (10) that the provision of Senate Bill No. 911 that the Board of Trustees of Volusia County Fair shall be free-holders does not curtail the Governor's power of selection so as to violate Section 27 of Article III of the Constitution, or any Constitutional provision relating thereto, (11) that Senate Bill No. 911 provides that in the event the naming of the Trustees of the Volusia County Fair should be judicially determined to be unconstitutional, that the Governor shall appoint such trustees and that the Governor has appointed the same individuals as are named in the Act, to be such Trustees, and they have been duly commissioned, (12) that the term of office of the said trustees is less than six years, and is not condemned by any provision of the State Constitution, (13) that Senate Bill No. 911 does not attempt to fix the fees of officers of the State or County, (14) that the said purchase money, notes and mortgage are not in effect bonds, and if they were, the provision authorizing the issuance of same, is separable from the remainder of the Act and may be eliminated without affecting the primary purpose of the Act, (15) that the legislature was competent to provided that the provisions of Section 1486, Revised Gen. Statutes of Florida, Section 2191, Compiled General Laws of Florida, 1927, shall not apply to the Board of Trustees of the Volusia County Fair, nor to any contracts or agreements of said Board, or to any purchases or obligations thereof, and if held otherwise, such provision may be eliminated from the Act without affecting the purpose of the Act, and (16) that the bill is without equity. The application for a temporary injunction was denied by Judge Daniel A. Simmons, sitting in Volusia County, Complainant then amended his bill of complaint by alleging further, upon information and belief, in substance, that the property referred to in Senate Bill No. 911, was acquired by the Volusia County Fair Association, Inc., by deed from Sidney A. Wood, as Executor and Trustee under the last will and testament of Asa D. McBride, deceased, for a recited consideration of Ten Dollars and other good and valuable consideration, but as a matter of fact, no consideration was paid therefor; that the said land was donated to the Volusia County Fair Association, Inc., and was in violation of the trust reposed in the said Executor, and Trustee, inasmuch as the said will only authorized him to sell or convey real estate of the estate for the purpose of converting the same into cash for re-investment and uses as directed under the terms of the will, and in consequence thereof, the Volusia County Fair Association, Inc., did not have title to the property, and that the same with the improvements thereon, constituted practically all of the property and assets of the said Volusia County Fair Association, Inc., and that unless restrained and enjoined by order of the Court, the said property will be acquired by the said Board of Trustees, and obligations will be issued in the name of the County of Volusia to the great and irreparable injury of said County and the taxpayers therein. The said amendment alleged further, that upon the day the bill of complaint was filed, the said County Commissioners prepared their tentative budget for the fiscal year beginning October 1, 1931, and placed therein, an appropriation of $15,000.00 for the use and benefit of the said Board of Trustees of Volusia County Fair, which unless prevented by order of Court, will cause a millage to be levied upon the taxable property of Volusia Count, in an amount sufficient to raise said sum of $15,000.00. Certified copies of the said deed and the said will were attached as exhibits and made a part thereof. The amendment was verified by the oath of the complainant as true, except as to matters stated on information and belief, and as to such matters, he believed them to be true. The judge of the Seventh Circuit being absent from the Circuit, the bill of complaint and the amendment thereto, without notice to the defendants, was presented to Judge Paul C. Albritton of the Twenty-Seventh Circuit, who thereupon granted a temporary restraining order as prayed for in the bill. In support of the application, Tom Stewart, an attorney for the Complainant, made an affidavit before Judge Albritton, which averred, "That the said defendant Board of County Commissioners have deferred making payment of the money mentioned in the bill of complaint to the Board of Trustees of Volusia County Fair, because of an insufficiency of money in the agricultural fund of Volusia County, which fund has now become adequate to pay the sum of $6,000.00 and that urgent demands are being made on said Board of County Commissioners to make said payment, and that his Excellency, the Governor of Florida, has signified to said Board his desire that it make such payment promptly or show cause of not so doing; that said Board of County Commissioners has now under consideration the preparation of its annual budget, and is in almost continuous session from day to day in the preparation of same; that affiant believes that to give notice of this application for injunction would cause immediate payment of said sum and accelerate the injury sought to be enjoined; and believes that the injury apprehended will be done if an immediate remedy is not afforded the complainant, and affiant fears that the Board of Trustees of the Volusia County Fair may take title to said Fair property and issue obligations in the name of Volusia County in payment thereof unless immediate relief is granted." From the said order granting a temporary injunction the defendants, Ben D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar, and Davis Forster, individually and as constituting the Board of County Commissioners of Volusia County, Florida, Volusia County, Saml.

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D. Jordan, Clerk of the Circuit Court, in and for Volusia County, Florida, and ex-officio Clerk of the said Board of County Commissioners for themselves and for the other defendants (naming them) on the 18th day of August, 1931, filed their notice and entry of appeal. On the said 18th day of August, the Volusia County Fair Assocation, Inc., and the Board of Trustees of Volusia County Fair, said Board consisting of W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, jointly and severally moved the Court to dissolve the temporary injunction. Objection to the hearing was interposed by the complainant, but on 21st day of August, A.D. a hearing was held and an order was made by Judge Simmons, acting in the place and in stead of the Judge of the 7th Judicial Circuit dissolving the said injunction. From this order and the order of Judge Simmons denying the first application for a temporary injunction, the complainant appealed. The two appeals have been consolidated here. It is settled here that the granting, continuance and modification of temporary restraining orders are largely discretionary, and the rights of the general public, if affected thereby, should be considered. Suwannee & S.P.R. Co., vs. West Coast Ry. Co., 50 Fla. 609, 612, 39 So. 538; McMullen vs. Pinellas County, 90 Fla. 398, 106 So. 73. Equity Rule 46 provides that in all cases of applications for injunctions, the judge to whom presented, before granting the same shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined, and of the time and place where the motion is to be made, and no order shall be granted without such notice unless it is manifest to such judge from the sworn allegations in the bill or affidavit of the complainant, or other competent person, that the injury apprehended will be done, if an immediate remedy is not afforded, when he may grant instanter an order restraining the party complained of until the hearing or the further order of the court or judge. "To satisfy the granting of an injunction exparte, and without notice, the allegations of the sworn bill or accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of from which the court can determine for itself whether the giving of notice will, or is likely to so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result." Godwin vs. Phifer, 51 Fla. 441, 41 So. 597, and other cases cired therein. The allegations in a bill for an injunction must be clear, direct and positive, and must be verified by an affidavit, which also, must be direct and positive; and where any of the material allegations in the bill are stated upon information, there should be annexed to the bill, the additional affidavit of the person from whom the information is derived verifying the truth of the information thus given. If the direct and positive allegations of fact in the sworn bill as amended, are sufficient to constitute a ground for an injunction, and the refusal of the court to grant a temporary injunction upon the first application is not a bar to the making of the order upon the second application, the lower court should not be held in error for granting the order from which the first appeal was taken. We cannot say that the showing was not sufficient to dispense with notice to the opposite parties of the second application for an injunction. As a general rule, a second application will be denied merely on a showing that the first one was denied, unless complainant presents new and additional matter discovered since the former hearing but "the refusal of an application for a preliminary injunction does not bar complainant from making a second application, the decision being an act of discretion; and the Court may, in subsequent application, reach a different conclusion on the same or more convincing evidence. The court is not bound to adhere to its former ruling, nor is it bound, in case the former application was in another court, although it will generally do so by way of comity." 32 C.J. 336; Louisville & N.R. Co., vs. Ky. R.R. Commission, 214 Fed. 465. While a second application for an injunction, when based upon the same evidence or upon evidence which should have been presented upon the first application will generally be denied, it being a matter in which judicial discretion should be exercised, a court will not be held in error in granting a second application if a clear case is presented. In McMullen vs. Pinellas County, supra, we held that "to the granting of every temporary injunction, two essential conditions must prevail. The bill must allege facts which appear sufficient to constitute a cause of action or ground for injunction, and, on the full showing made from both sides it must appear in the light of the circumstances, that the injunction is necessary to protect the legal rights of the plaintiff pending the litigation." On an application for a temporary injunction, the chancellor may consider the merits of the bill. City of Apalachicola vs. Apalachicola Land Co., 9 Fla. 340, 70 A.D. 284; McKinney vs. County Commissioners Bradford County, Fla. 267, 4 So. 855, McMullen vs. Pinellas County, supra. That a citizen and taxpayer may enjoin an unauthorized expenditure of public money, is well established. Rickman vs. Whitehurst, 73 Fla. 152, 74 So. 205, Whitner vs. Woodruff, 68 Fla. 465, 67 So. 110; Anderson vs. Fuller, 51 Fla. 380, 41 So. 684, 6 L.R.A. (NS) 1026, 120 A.S.R. 170, Lassiter & Co. vs. Taylor, 99 Fla. 819, 128 So. 14. Likewise, equity has jurisdiction to enjoin the assessment and collection of an illegal tax levied upon real estate, which, if assessed and collected, will cast a cloud over the title of such real estate. Pickett vs. Russell, 42 Fla. 116, 634, 28 So. 764. We are, therefore, confronted with the inquiry; Are the facts alleged, either in the original bill, or the bill as amended sufficient on the showing made by both sides to justify the chancellor in the exercise of his discretion, in granting the second application for an injunction? In all cases where there is no constitutional provision making an expense chargeable to the county, it must be for a county purpose in order to justify the legislature in authorizing a county to resort to taxation to defray it (Opinion of Justices, 13 Fla. 687; Board of County Commissioners Escambia County vs. Board of Pilot Commissioners, 52 Fla. 197, 42 So. 697). There is no general rule for determining what is a county purpose (Commissioners of Duval County vs. Jacksonville, 36 Fla. 196, 18 So. 339). In Jordan vs. Duval

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County, 68 Fla. 48, 66 So. 298, we said: "While the Constitution provides that 'the Legislature shall authorize the several counties * * * in the state to assess and impose taxes for county * * * purposes, and for no other purposes,' the term 'county purposes' is not defined or amplified in the organic law. This being so, the Legislative power, in exercising its appropriate law making functions, may determine what is a 'County purpose,' and the courts are not authorized to render such determination ineffectual, unless some provision of the Constitution is violated, or unless the particular enactment can have no legal or practical relation whatever to any 'county purpose.' Where the courts may as in this case inquire into the existence of legislative power to enact a statute, the absence of power must clearly appear before the statute will be declared to be ineffectual for the purpose designed." See Also, Jacksonville vs. Bowden, 67 Fla. 181, 64 So. 769; Anderson vs. Ocala, 67 Fla. 204, 64 So. 775. "A staute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it, can be pointed out." Neisel vs. Moran, 80 Fla. 98, 85 So. 346. Complainant insists that both Senate Bill No. 910 and Senate Bill No. 911 violate Section 10 of Article 9 of our Constitution, which provides that "the Legislature shall not authorize any county * * * to obtain or appropriate money for, or to loan its credit to any corporation, association, institution or individual." In the first state contention, the county commissioners are in accord with complainant. On the other hand, the Volusia County Fair Association, Inc., and the Trustees of the Volusia County Fair contend that the Volusia County Fair Association, Inc., is a non-profit corporation, and any taxes levied to obtain funds to be paid to it are not levied for the benefit of a chartered company, but for the benefit of the people; that this court held in Earle vs. Dade County, 92 Fla. 432, 109 So. 331, that taxation for a fair and agricultural exhibition is for a valid county purpose, and that being true, they aske, "What valid objection is there to placing the money in the hands of a non-profit corporation to aid in the carrying out of such purpose?" It is not for the Court to say that such an act shall be upheld or declared invalid because the believe it to be wise or illadvised, as the case may be. We are only concerned in whether or not it is denounced by some provision of the organic law. In Earle vs. Dade County, 92 Fla. 432, 109 So. 331, we upheld a decision of the lower court, validating bonds of the County of Dade, the issuance of which was authorized by the Legislature under an act providing for the acquirement and holding of real property for fair and fairground purposes, and for the construction thereon of buildings and other structures necessary or desirable for the purpose of conducting fairs and agricultural exhibits, authorizing the County Commissioners to levy upon property an annual tax to be expended in carrying out such purpose and requiring them from time to time, upon the issuance of such bonds, to levy and cause to be collected, a tax sufficient to pay the interest thereon, and the annual installments of such bonds from year to year, as they mature. In speaking for the Court, Justice Brown said. "The effect of these fairs has no doubt been to stimulate an interest in improved agricultural methods. It may also be true that the public benefits to be derived from such fairs are sufficient to authorize the Legislature to place the expense thereof upon the public rather than upon a few individuals who have the public spirit to promote and organize such enterprises. As to this feature of the act in question, though somewhat paternalistic in its nature, we arenot prepared to say that the Legislature has exceeded its powers or come in conflict with any constitutional restriction. This Court has held that the Legislature, in exercising its appropriate law making functions, may determine what is a county purpose within the meaning of Section 5, Art. 9, of the Constitution, and the courts are not authorized to render such legislation ineffectual, unless some other provision of the Constitution is violated, or unless the particular enactment can have no practical or legal relation whatever to any county purpose. * * * If the state has the power to establish and operate a state agricultural department, or provide for a commissioner of agriculture, it would appear that it might also, by proper legislation, authorize a county, a political subdivision and agency of the state, to promote the local agricultural interests of the county by acquiring the property and constructing the buildings necessary to the conduct of free public county fairs in the particular county." (Italics supplied). Senate Bill No. 910 does not direct for what purpose the said sum of $6,000.00 shall be used, but merely requires the County Commissioners to pay it over to the Board of Trustees of the Volusia County Fair. Senate Bill No. 911 declares that the purchasing and taking over of the property of Volusia County Fair Association, Inc., the promoting, maintaining and carrying on annually of a Fair or Exposition in the county, and the levying of a tax by the County Commissioners in order to carry out the provisions of the act, "are all for a valid County purpose." While the constitution provides that the powers and duties of county commissioners are prescribed by law (article 8, section 5, Constitution of Florida), this particular mandate of the Constitution is not violated by the provisions of said bill, that makes it the duty of the Board of Trustees of the Volusia County Fair, to make and submit to the Board of County Commissioners an amount of money necessary to be raised for the purpose of carrying out the provisions of the act, and give to the Board of Trustees of Volusia County Fair, the supervision and control of "all moneys that may be raised by the tax" as therein provided. County Commissioners have only such authority as is conferred by statute (Baden v. Ricker, 70 Fla. 154, 69 So. 694; Stephens vs. Fulch, 73 Fla. 708, 74 So. 805), and administrative duties pertaining to the affairs of a County may be conferred by law upon officers other than the County Commissioners (State ex rel. Buford vs. Daniel, supra). The power of the Legislature to pass laws creating County Officers, other than those provided for in the constitution, is "absolute unless restrained by some constitutional provision." (State ex rel. Bryan, 50 Fla. 293, 376, 39 So. 929). "All persons by authority of law instrusted with the receipt of public money, or through whose hands such money may pass to the treasury, are 'public officers', whether the service be general or special, transient or permanent." "Section 27, article 3 of the State Constitution means that when not otherwise provided in the Constitution the executive and administrative governmental functions of the state and counties shall be performed by officers who shall be elected by the people or appointed by the Governor, and that the duties and compensation of such officers shall be fixed by law. Section 7, article 8, requires that such county officers shall be commissioned by the Governor, and that before being commissioned they shall file with the

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secretary of state a bond to be approved by the county commissioners and by the comptroller, Section 14, article 4, provides that all commissions shall be in the name and under the authority of the state of Florida, sealed with the great seal of the state, signed by the Governor and countersigned by the secretary of state. Section 2, article 16, requires every officer to take the prescribed oath. Section 7, article 16, provides that the Legislature shall not create any office, the term of which shall be longer than four years." Dade County vs. State, 95 Fla. 465, 116 So. 72, 76. We are impelled to the conclusion that the lower court committed no error in granting the order temporarily restraining the Board of Trustees of Volusia County Fair from issuing any note under color of Senate Bill No. 911, for the sum of $83,000.00, or any other sum of money in the name of Volusia County, for the purchase of any property or other assets of Volusia County Fair Association, Inc., or otherwise pledging or obligating the said County to any extent whatever. Since no one other than the Board of Trustees of Volusia County Fair is authorized to perform the duties attempted to be conferred by the said Senate Bill No. 911 upon the said Board of Trustees, and the expressed purpose of the levy of the ad valorem tax is to carry out the provisions of the act, and such provisions as we have seen cannot be carried out because said Board of Trustees are powerless to act for the county, it follows that the levying of the annual tax on all taxable real and personal property in the county should not be made. We hold therefore, that the lower court did not err in granting an order temporarily restraining the members of the Board of County Commissioners from levying an ad valorem tax for the purpose of carrying out the provisions of Senate Bill No. 911. We will now take up the appeal of the complainant from the order denying a preliminary injunction upon the first application, and (2) from the order dissolving the temporary injunction granted by Judge Albritton. In view of the fact that we have upheld the order granting the injunction upon the second application, we deem it unnecessary to discuss the propriety of the Court's action upon the first application of complainant for such injunction. If error was committed in denying the application when first made, it was corrected when the order for the injunction was made upon the second application therefor. When the order dissolving the injunction was made, an appeal had been entered by the County Commissioners, and the Clerk, for themselves and for their co-defendants. This notice and entry of appeal having been filed and duly recorded as required by law (Sec. 4904 (2172) Compiled General Laws of Florida, 1927) it gave to the appellate court jurisdiction of the cause and also of the appellants and appellee. Stovall vs. Stovall, 77 Fla. 116, 80 So. 744. The defendants, who voluntarily appealed, had the right to join their co-defendants, who were also affected by the order, as parties appellant. (Rabinowitz vs. Houk, Fla. , 129 So. 501, Hay vs. Isletts, 98 Fla. 1026, 125 So. 237; Guaranty T. & T. Co. vs. Thompson, 89 Fla. 35, 103 So. 110.) It is a general rule that when an appeal is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone. The authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject matter of the appeal, until the appeal is heard and determined. 3 C.J. 1252, 1255; 2 Enc. P. & Pr. 332. See also Holland vs. State, 15 Fla. 549. Furthermore, where the defendants are so corrected that the rights of one cannot be determined without affecting the rights of the others, and an appeal is lawfully taken by one defendant, the trial court pending the appeal, cannot take any steps in the case. 3 C.J. 1261; 2 Enc. Pl. & Pr. 334. This court has said that "When jurisdiction of appellate court attaches, it is exclusive as to subject covered by appeal." Wiley v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126. By applying the rule just stated to this case, the lower court was without authority to make the order dissolving the injunction at the time it was made, and for that reason the said order should be and the same is hereby reversed. A supersedeas is not essential to the acquisition of or to preservation of appellate jurisdiction. Wiley v. W. J. Hoggson Corporation, supra. Per Curiam. -- A majority of this Court are of the opinion that so many vital and controlling provisions of Senate Bill No. 911, Acts of the Legislature, Session of 1931, being Chapter 15560, of the 1931 Special Laws, are unconstitutional that by reason thereof the whole Act is unconstitutional and inoperative, it being impossible for the Court to say that with the plainly unconstitutional provisions eliminated from Senate Bill No. 911 (Chapter 15560) entitled: "An Act Creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, maintain and carry on annually a fair or exposition in said County, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said tax not to exceed One Mill on the Dollar, and giving the said Board of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said Act and all Funds derived from said tax or any other sources," that said Bill would have been enacted at all. Therefore that Act falls in its entirely. Senate Bill No. 910 (Chapter 15557), entitled: "An Act requiring the board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00), which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A.D. 1930, and to end on the 30th day of September, A.D. 1931,"

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is in pari materia with Senate Bill No. 911, and if Senate Bill No. 911 is wholly void, the legislative purpose and intent designed by Senate Bill No. 910 cannot be accomplished, so that Act must likewise be held insufficient as a basis for any action or payment of money by the County Commissioners of Volusia County, such as was sought to be enjoined in this case. Since the principal object of the bill of complaint is to declare unconstitutional and void the aforesaid Acts of the Legislature of 1931, and relief so adjudging them void and unconstitutional is sufficiently sustained by the bill, the injunctions granted should be affirmed insofar as they enjoin and restrain acts of the County Commissioners of Volusia County under the two 1931 enactments hereinbefore referred to. The injunctions granted are accordingly limited and modified in effect so as to enjoin and restrain only the threatened acts of the County Commissioners of Volusia County, Florida, specified in the bill of complaint, insofar as such acts are based upon Chapter 1557 and 15560, Acts of 1931, Laws of Florida, as so modified the orders granting injunctions are affirmed. The order of Judge Simmons dissolving the injunction which had been granted by Judge Albritton is reversed. The question of enjoining payments of moneys by the County Commissioners of Volusia County, Florida, under Sections 6516-6526 C.G.L., 4517-4527 R.G.S., Acts of 1927, is not passed on, because neither the validity, construction nor effect of same is prperly involved in the present appeal. Orders granting injunctions limited in effect, and as so modified, affirmed. Order dissolving injunctions reversed. BUFORD, C. J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J. J., concur. WHITFIELD, J. -- Even though under section 6526 (4527) C.G.L. the county commissioners may have duly made an appropriation from county funds to the Volusia County Fair Association for an authorized county purpose, the act designated Senate Bill No. 910, is in the nature of a judicial decree requiring the county commissioners to pay over to the Board of Trustees of the Volusia County Fair, a body proposed to be created by an act of the Florida Legislature, out of the proceeds of the taxes collected and to be collected in said county for the year 1930, the sum of $6,000.00 that was appropriated to the Volusia County Fair Association, by the Board of County Commissioners in the budget for the fiscal year ending September 30, 1931. The legislature cannot exercise judicial junctions. A legislative command in the nature of a judicial decree that county funds which have been appropriated for payment to a specific payee shall be paid to a different payee, without anything in the act to show the right of the new payee or that the payment required to be made is for a lawful county purpose, is not contemplated by the constitution. It is alleged that the appropriation is not made for a public purose but violates sections 7 and 10, Article IX, Constitution. If it be assumed that the act may be shown to be valid by reference to the statute designated as Senate Bill No. 911, that act violates section 25, Article III, constitution, in that though it may have reference to a county purpose, Earle v. Dale Co., 92 Fla. 432, 109 So. 331, yet it is a special law, not creating an agency for governmental purposes, but incorporating a "useful" company or association with corporate powers, when the organic section forbids the legislature to "pass any special law on any such subject, and any such special law shall be of no effect," with exceptions no material here. The provision in the special act requiring the Board of Trustees of the Volusia County Fair to acquire, purchase and take over in the name of Volusia County, property owned by the Volusia County Fair Association, Inc., and other provisions, do not make th Board of Trustees created by the special act an agency for governmental purposes. In State ex rel. v. Daniel, 87 Fla. 270, 99 So. 804, the act was a general law and created an agency for governmental purposes. It is not necessary to consider whether section 20, Article III, or sections 7 and 10, Article IX, constitution, are also violated. BUFORD, C. J., AND ELLIS, TERRELL, BROWN AND DAVIS, J. J., concur. BROWN, J., (Concurring specially): -- It appears that the conducting of a County Fair in Volusia County constitutes a purely local and county purpose, and this being true, the legislature has no authority under the constitution to require or compel the county to assess and impose ad valoren taxes for such a purpose. The legislature may authorize the county to do so, but it cannot compel or require it. Sec. 5 of Art. IX of the constitution provides that the legislature shall "authorize" the several counties to assess and impose taxes for county purposes. This, we have held, refers to ad valorem taxes.There is a vast difference between authorizing a county to impose taxes for an exclusively local purpose and compelling it to do so. The former recognizes that the county should have some voice in purely county affairs whereas the latter would make possible the centralization of authority over all the local affairs of the counties in the State government, thus tending to build up a centralized and bureaucratic form of government, which, to my mind, is contrary to the system established by our constitution. This question was very ably discussed and the previous decisions of this court thereon reviewed, by this court, speaking through MR. JUSTICE STRUM, in the case of Amos v. Mathews, 99 Fla. 1, 126 So. 308. A few extracts from the opinion in that case read as follows: "But the existence of local county officers as a part of our form of government, and for the performance of purely local functions, is clearly recognized by the Constitution, altough the legislature possesses powers of the broadest possible nature consistent with the constitutional existence of those officers, in determining the extent of their local powers and duties. Therefore, while the legislature may shape local institutions and regulate the frame work of local government with reference to local powers, it can not abrogate these constitutionally recognized institutions and take to itself the complete and direct exercise of local functions in matters of purely local concern." "It is contended in this case that a county is a mere arm or agency of the State -- that it is merely 'the State Acting locally.' The foregoing resume of our constitutional system negatives this theory so far as the administration of purely local affairs is concerned. It is true that a county is an agency of the State, having no inherent power, but deriving its powers wholly from the sovereign State. It is also true, to paraphrase the language of one of the briefs herein, that the principle of local self-government does not

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constitute each county 'an independent sovereignty, managed by a board having legal rights.' Nevertheless, their existence as local entities for local purposes as well as their existence as legal political divisions of the State is recognized by the Constitution. The same power which created the legislaure, namely, the sovereign people, recognized the counties. While a county in the performance of certain funcstions is an agency or arm of the State, it is also something more than that. If a county were no more than a mere agent of the State, -- the State acting locally, -- bonds issued by a county by a county would in effect constitute State bonds, and therefore by virtue of Sec. 6 of Art. IX of the Constitution would be void ab initio. While the county is an agency of the State, it is also, under our Constitution, to some extent at least, an autonomous, self-governing political entity with respect to exclusively local affairs, in the performance of which functions it is distinguished from its creator, the State, and for its acts and obligations when acting in purely local matters the State is not responsible. This, as we have seen, must be conceded in order to sustain the validity of county bonds." * * *. "When the language of Section 2 and 5 Art. IX is contrasted, however, and is considered in the light of our institutions of government and in the light of the construction placed upon what is now Sec. 2 of Art. IX in Cheney v. Jones, supra, it is our judgment that the framers of the Constitution intended to and did withhold from the legislature the power to directly levy, or to compel a county to levy, a local county ad valorem tax for an exclusively local purpose as already defined herein. Local administration of exclusively local affairs, that is, affairs in which the State has no sovereign interest as such, is undoubtedly contemplated by our Constitution. To withhold the co-ordinate power of local determination as to taxation in matters of exclusively local concern, would leave little of local government. See Cooley, Taxation (4th ed.), Sec. 416; et seq; Jackson Lbr. Co. v. Walton County, 116 So. 771; People v. Mayor, etc., 51 Ill. 17; Pope v. Phifer, 3 Heisk. (Tenn.) 682, 700; Morgan v. Schussells, 81 N.E. 814; People v. Common Council of Detroit, 28 Mich. 366; People v. Village of Pelham, 109 N.E. 513; State v. Omaha, 200 N.W. 871; 46 A.L.R. 602, 610; Cooley Const. Lim. (7th ed.) p. 337." It may be as contended by Commissioner Davis, that the legislation here under review comes in conflict with Secs. 7 and 10 of Art. 9 and Sec. 20 of Art. 3 of the Constitution, but I am inclined to base my concurrence in the conclusions reached by Commissioner Davis upon the compulsory features of the legislation, in respect to matters which under the constitution the legislature may only authorize, and not require, a county to do. I am also inclined to agree with Justice DAVIS that under section 6526 C.G.L. the County Commissioners were authorized to appropriate $6,000.00 to the Volusia County Fair Association, Inc. for the fiscal year beginning Oct. 1, 1930, but I doubt the validity of the act compelling them to pay this appropriation to the "Trustees of the Volusia County Fair." The tax was not levied for that specific purpose. And, for the reasons above set forth, I am inclined to think the act creating the "Board of Trustees of the Volusia County Fair" is itself unconstitutional. DAVIS, J., concurs. DAVIS, J., concurring with WHITFIELD, J.: -- I concur with the view expressed by MR. JUSTICE WHITFIELD that Senate Bill No. 910, which became Chapter 15557, Acts of 1931, is in the nature of a judicial decree requiring the County Commissioners to pay over to the Board of Trustees of the Volusia County Fair, a body proposed to be created by an Act of the Florida Legislature, the sum of $6,000.00 that was appropriated to the Volusia County Fair Association by the Board of County Commissioners in the budget for the fiscal year ending September 30, 1931, and that such legislative command being in the nature of a judicial decree that County funds which have been appropriated to a specific payee shall be paid to a different payee is not contemplated by the constitution. I therefore acquiesce in the holding that Chapter 15557, Acts of 1931, insofar as it operates as a mandatory requirement on the Board of County Commissioners of Volusia County is unconstitutional, and that payments as commanded by the 1931 Act should be enjoined insofar as the 1931 Act seeks to coerce such payments by legislative fiat. I also concur in the view that Chapter 15560, Acts of 1931, is unconstitutional for the reasons pointed out in the opinion by MR. COMMISSIONER DAVIS and in the concurring opinion of MR. JUSTICE WHITFIELD. The bill of complaint shows that an appropriation was made of the sum of $6,000.00 to the Volusia County Fair Association, Inc., by the Board of County Commissioners of Volusia County for the fiscal year beginning October 1, 1930, and ending September 30, 1931. Such appropriation was specifically authorized by Section 6526 C.G.L., 4527 R.G.S., which provides that "Board of County Commissioners of the various counties of the State of Florida, are authorized to expend in their discretion such sums as they deem for the best interests of their counties and in aiding the development of the agricultural, horticultural and livestock resources of their counties and in giving publicity to the advantages, facilities and agricultural, horticultural and livestock possibilities and production of their counties by providing for, aiding and assisting the exhibition and demonstration of such resources at and in connection with such fairs and expositions, including the offering and paying of premiums for such exhibition of resources of their respective counties. This Section is a part of Chapter 7388, Acts of 1917, which has been unquestioned as to its validity for fourteen years. The object of the 1931 Act was simply to amend this already "fixed appropriation" which had been validly made, by providing that it should be paid, -- not to the Volusia County Fair Association, Inc., a voluntary corporation which has existed in Volusia County for many years, but to the new body also created in 1931 known as the Board of Trustees of Volusia County Fair. If such change gives any one the right to complain, it is not a taxpayer of Volusia County, but is the Volusia County Fair Association, Inc., whose "fixed appropriation" has thus been diverted to another separate and distinct body. In fact, the real complaint against the payment of this $6,000.00 which is a "fixed appropriation" to the Volusia County Fair Association, Inc., seems to be that Chapter 7388, Acts of 1917 (Sections 6516 to 6528, C.G.L.), is unconstitutional, -- particularly as to Section 6526 C.G.L., 4527 R.G.S., which authorizes county commissioners to appropriate moneys of the county fair associations to aid in the development of the agricultural and livestock resources of the several counties, by means of the publicity which is afforded through these fairs.

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I am unable to see where we can declare such purposes as those set out in Section 6526 C.G.L., supra, not proper county purposes in view of the Legislature's specific declaration that they are a valid purpose for which the county commissioners of a county may appropriate money. If there was any doubt on this score it has been removed by the holding of this court in Earle v. Dade County, 92 Fla. 432, 109 Sou. Rep. 331, where the court said that the use of taxation by a county to develop and advertise the agricultural, horticultural and livestock advantages of a county through county fairs and expositions was a proper county purpose. Publicity is perhaps the most powerful influence which exists in our modern life. So great is its value that over a billion dollars a year is spent for it by the people of the United States. Holding a fair of exposition to exhibit the county's resources is one way of taking advantage of this powerful influence of publicity, and the word "publicity" is expressly used in the law when referring to the purpose for which these appropriations of money are authorized. Publicity with reference to advantages and facilities of a community is now generally recognized in all enlightened communities as being a public purpose, for which tax money can be spent when authorized by appropriate legislation, where the expenditures made for it remain within the control of the public authorities and are not delegated to private agencies. Here the Board of County Commissioners in September, 1930, determined that the publicity of the advantages of Volusia County through the medium of a fair or exposition would be worth at least $6,000.00 to the County, and they put that much in the budget to be used for that purpose. This was appropriated to be paid over to the Volusia County Fair Association, Inc., as a consideration for the publicity and other advantages which the county would receive through the medium of the Volusia County Fair Association's activities in holding a fair or exposition during that fiscal year. Unless we are going to declare the 1917 statute unconstitutional, as well as the 1931 statute unconstitutional, there is no ground to enjoin and prohibit the County Commissioners from paying out this money which they deliberately appropriated under express authority of the 1917 statute, and in consideration of which Volusia County Fair Association, Inc., evidently has incurred expenses and rendered services to the County which justly entitle that Association, if not its 1931 successor, to receive these appropriated funds. BROWN, J., concurs. 19311223 © 1998 VersusLaw Inc.
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INTERNATIONAL PRESS RELEASE CRIMINAL COMPLAINT AGAINST U.S. ATTORNEY “ANARCHY” BRIAN ALBRITTON CRIMINAL CONCEALMENT OF SCAM “O.R. 569/875” “Legislation which constitutes an invasion of the province of the judiciary is invalid.” Thursby v. Stewart, 138 So. 742 (Fla. 1931). Here, there were • NO “legislation” • NO lawmakers. “It is not, however, an established fact that the document is forged or invalid.” Doc. # 159, 04/21/10 p. 4, ¶ B. U.S. Attorney, “Anarchy” Brian Albritton

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Statutes & Constitution :Constitution : …

The Florida Constitution
CONSTITUTION OF THE STATE OF FLORIDA AS REVISED IN 1968 AND SUBSEQUENTLY AMENDED The Constitution of the State of Florida as revised in 1968 consisted of certain revised articles as proposed by three joint resolutions which were adopted during the special session of June 24-July 3, 1968, and ratified by the electorate on November 5, 1968, together with one article carried forward from the Constitution of 1885, as amended. The articles proposed in House Joint Resolution 1-2X constituted the entire revised constitution with the exception of Articles V, VI, and VIII. Senate Joint Resolution 4-2X proposed Article VI, relating to suffrage and elections. Senate Joint Resolution 5-2X proposed a new Article VIII, relating to local government. Article V, relating to the judiciary, was carried forward from the Constitution of 1885, as amended. Sections composing the 1968 revision have no history notes. Subsequent changes are indicated by notes appended to the affected sections. The indexes appearing at the beginning of each article, notes appearing at the end of various sections, and section and subsection headings are added editorially and are not to be considered as part of the constitution. PREAMBLE We, the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order to secure its benefits, perfect our government, insure domestic tranquility, maintain public order, and guarantee equal civil and political rights to all, do ordain and establish this constitution. ARTICLE I DECLARATION OF RIGHTS ARTICLE II GENERAL PROVISIONS ARTICLE III LEGISLATURE ARTICLE IV EXECUTIVE ARTICLE V JUDICIARY ARTICLE VI SUFFRAGE AND ELECTIONS ARTICLE VII FINANCE AND TAXATION ARTICLE VIII LOCAL GOVERNMENT ARTICLE IX EDUCATION ARTICLE X MISCELLANEOUS ARTICLE XI AMENDMENTS
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Statutes & Constitution :Constitution : … (c) The governor shall appoint all commissioned officers of the militia, including an adjutant general who

shall be chief of staff. The appointment of all general officers shall be subject to confirmation by the senate. (d) The qualifications of personnel and officers of the federally recognized national guard, including the adjutant general, and the grounds and proceedings for their discipline and removal shall conform to the appropriate United States army or air force regulations and usages. SECTION 3. Vacancy in office.--Vacancy in office shall occur upon the creation of an office, upon the death, removal from office, or resignation of the incumbent or the incumbent's succession to another office, unexplained absence for sixty consecutive days, or failure to maintain the residence required when elected or appointed, and upon failure of one elected or appointed to office to qualify within thirty days from the commencement of the term. History.--Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998. SECTION 4. Homestead; exemptions.-(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family; (2) personal property to the value of one thousand dollars. (b) These exemptions shall inure to the surviving spouse or heirs of the owner. (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. History.--Am. H.J.R. 4324, 1972; adopted 1972; Am. H.J.R. 40, 1983; adopted 1984; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998. SECTION 5. Coverture and property.--There shall be no distinction between married women and married men in the holding, control, disposition, or encumbering of their property, both real and personal; except that dower or curtesy may be established and regulated by law. SECTION 6. Eminent domain.-(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.
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Statutes & Constitution :Constitution : …

ARTICLE XII SCHEDULE

ARTICLE I DECLARATION OF RIGHTS SECTION 1. Political power. SECTION 2. Basic rights. SECTION 3. Religious freedom. SECTION 4. Freedom of speech and press. SECTION 5. Right to assemble. SECTION 6. Right to work. SECTION 7. Military power. SECTION 8. Right to bear arms. SECTION 9. Due process. SECTION 10. Prohibited laws. SECTION 11. Imprisonment for debt. SECTION 12. Searches and seizures. SECTION 13. Habeas corpus. SECTION 14. Pretrial release and detention. SECTION 15. Prosecution for crime; offenses committed by children. SECTION 16. Rights of accused and of victims. SECTION 17. Excessive punishments. SECTION 18. Administrative penalties. SECTION 19. Costs. SECTION 20. Treason. SECTION 21. Access to courts. SECTION 22. Trial by jury. SECTION 23. Right of privacy.

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Statutes & Constitution :Constitution : … SECTION 24. Access to public records and meetings.

SECTION 25. Taxpayers' Bill of Rights. SECTION 26. Claimant's right to fair compensation. SECTION 27. Marriage defined. SECTION 1. Political power.--All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people. SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability. History.--Am. S.J.R. 917, 1974; adopted 1974; Am. proposed by Constitution Revision Commission, Revision No. 9, 1998, filed with the Secretary of State May 5, 1998; adopted 1998. SECTION 3. Religious freedom.--There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. SECTION 4. Freedom of speech and press.--Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated. History.--Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998. SECTION 5. Right to assemble.--The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances. SECTION 6. Right to work.--The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike. SECTION 7. Military power.--The military power shall be subordinate to the civil. SECTION 8. Right to bear arms.-(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law. (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the
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Statutes & Constitution :Constitution : … purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer

of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph. (c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony. (d) This restriction shall not apply to a trade in of another handgun. History.--Am. C.S. for S.J.R. 43, 1989; adopted 1990. SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself. History.--Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998. SECTION 10. Prohibited laws.--No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed. SECTION 11. Imprisonment for debt.--No person shall be imprisoned for debt, except in cases of fraud. SECTION 12. Searches and seizures.--The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution. History.--Am. H.J.R. 31-H, 1982; adopted 1982. SECTION 13. Habeas corpus.--The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety. SECTION 14. Pretrial release and detention.--Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. History.--Am. H.J.R. 43-H, 1982; adopted 1982.
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Advisory Legal Opinion - Counties, roa…

Florida Attorney General Advisory Legal Opinion
Number: AGO 78-118 Date: September 27, 1978 Subject: Counties, roads and streets, dedication, vacation

Robert Bruce Snow Hernando County Attorney Brooksville QUESTION: May a county legally divest itself of ownership and control of certain dedicated streets and roads in a subdivision, and transfer to a homeowners' association the right to exercise ownership and control of, and to maintain, the streets and roads? SUMMARY: A county is statutorily authorized in the sound discretion of the board of county commissioners to close and vacate dedicated roads and streets designated on a recorded subdivision plat. Such authority must be lawfully exercised in the interest of the general public welfare and may not invade or violate individual property rights. The county is not authorized, however, and cannot in any manner legally convey or transfer the ownership and control of the vacated roads or streets to a homeowners' association as such, but upon lawful vacation thereof the abutting fee owners hold the title in fee simple to the vacated roadways or streets to the center thereof unburdened and unencumbered by the public's prior easement to use such roadways or streets for travel. The county would not be liable to any abutting fee owners as a result of closing or vacating such roadways or streets unless an abutting owner is thereby deprived of and suffers a consequent loss of access to his property. An abutting fee owner would also have a private or implied easement and cause of action to enforce such easement for access or egress or travel as against the homeowners' association or other abutting owners seeking to obstruct such access and use of and travel upon the vacated, now private, roads and streets. According to your letter, several miles of platted roads or streets in a large subdivision in Hernando County were dedicated to the public and accepted by the county through its approval for
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recording of the subdivision plat and its acceptance of the dedication of the streets and roads contained thereon. A property owners' association representing the majority, though not all, of the residents and property owners of the subdivision has requested the county to relinquish its control, ownership, and maintenance of the dedicated streets and roads and turn over this control, ownership, and maintenance to the association in order that it might not only maintain such streets and roads but also restrict access to and within the subdivision to its residents and property owners. As attorney for the county, you ask whether the board of county commissioners may legally transfer its ownership and control of the streets and roads to the association and, if it does so, whether it will be subject to any liability as a consequence of its actions. Initially, it is necessary to consider the elements and effect of a dedication. A dedication is simply the donating or appropriating of one's own land for use by the public. That is, the owner of the dedicated property is precluded from using it in any way inconsistent with the public's use thereof. There are two essential requisites to a finding of a dedication of property to the public. There must first be a clearly manifested intent by the owner of property to dedicate it to public use. Second, the public, through its authorized agents or officials, must clearly manifest its intent to accept the dedication. City of Miami v. Florida East Coast Railway Co., 84 So. 726 (Fla. 1920); Roe v. Kendrick, 200 So. 394 (Fla. 1941). An offer of dedication to the public an be accomplished by making and recording a plat and selling lots with reference thereto, the method apparently employed in the instant situation. See, e.g., Florida East Coast Railway Co. v. Worley, 38 So. 618 (Fla. 1905); Miami Beach v. Undercliff Realty and Investment Co., 21 So.2d 783 (Fla. 1945); and see s. 177.081, F. S. It appears from your letter that the dedication of roads and streets in the subdivision in question was properly accepted by the appropriate county officials and I, therefore, assume that a proper dedication has taken place. The effect of a dedication does not operate as a grant of the dedicated property but rather by way of an estoppel in pais. That is, the legal title to the property remains in the grantor (or his vendees) while the public takes the beneficial use of the property. Effectively, then, the fee remains in the grantor (or his grantees) while the public acquires only a right of easement in trust, so long as the dedicated land is used for the intended purpose of the dedication. The grantor (or grantees--abutting lot owners) is precluded from using the property in any way inconsistent with the public use. Burkhart v. City of Fort Lauderdale, 156 So.2d 752 (2 D.C.A. Fla., 1963), decision quashed 168 So.2d 65 (Fla. 1964); Florida State Turnpike Authority v. Anhoco Corporation, 107 So.2d 51 (3 D.C.A. Fla., 1959); Robbins v. White, 42 So. 841 (Fla. 1907).
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Absent a contrary showing, not made evident here , the legal title of the grantor-subdivider in properly dedicated property passes to the grantees of lots sold in reference to a plat, which lots abut the dedicated streets. Their title extends to the center of the streets subject to the public easement. Walker v. Pollack, 74 So.2d 886 (Fla. 1954); Smith v. Horn, 70 So. 435 (Fla. 1915); New Fort Pierce Hotel Co. v. Phoenix Tax Title Corp., 171 So. 525 (Fla. 1936); United States v. 16.33 Acres of Land in County of Dade, 342 So.2d 476, 480 (Fla. 1977); cf., Emerald Equities v. Hutton, 357 So.2d 1071 (2 D.C.A. Fla., 1978), wherein the court held that, when a single owner conveys to the county the title to or an easement in a roadway which is later abandoned by the county, that owner or his successors takes back or retains title to all the ababdoned property unless the owner is a subdivider who has later *4438 conveyed lots (and his interest in the abutting road) which abut the dedicated roadway to separate owners without specifically reserving any reversionary interest in the roadway. In such a case, the general rule prevails that the abutting owners on each side of the abandoned or vacated road become the fee owners out to the center line. See also ss. 177.085(2) and 336.12, F. S. These purchasers acquire their title, however, subject to the easement of the public in the dedicated property. Smith, supra; New Ft. Pierce Hotel Co., supra; Gainesville v. Thomas, 54 So. 780 (Fla. 1911). Your inquiry does not state that the dedicator or subdivider reserved any reversionary interest or rights in the streets and roads in the plat in question. I assume, therefore, for the purposes of this opinion, that no such rights exist in or under the plat. However, if such plat was made and recorded in the public records before July 1, 1972, and if no action has since been brought to establish or enforce any such reversionary rights, they are now barred and unenforceable by operation of s. 177.085(2), F. S. See also 16.33 Acres of Land in County of Dade, supra, and Emerald Equities, supra. It seems evident that the governing body of Hernando County does not 'own' the streets and roads in the subject subdivision which were dedicated for public use. The public has an easement to use the streets and roads, but there is no legal title to the property vested in the county which it can convey or transfer to the homeowners' association. Nevertheless, counties in Florida have the statutory authority to close and vacate any county streets, roads, alleyways, or other places used for travel. Section 336.09(1), F. S., provides: (1) The commissioners, with respect to property under control may in their own discretion, and of their own or upon the request of any agency of the state, or of federal government, or upon petition of any person or are hereby authorized and empowered to:
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their motion, the persons,
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(a) Vacate, abandon, discontinue and close any existing public or private street, alleyway, road, highway , or other place used for travel, or any portion thereof, other than a state or federal highway, and to renounce and disclaim any right of the county and the public in and to any land in connection therewith; (b) Renounce and disclaim any right of the county and the public in and to any land, or interest therein, acquired by purchase, gift, devise, dedication or prescription for street, alleyway, road or highway purposes , other than lands acquired for state and federal highway; and (c) Renounce and disclaim any right of the county and the public in and to land, other than land constituting, or acquired for, a state or federal highway, delineated on any recorded map or plat as a street, alleyway, road or highway. (Emphasis supplied.) Upon termination of the easement acquired by the public in the dedicated property, s. 336.12, F. S., provides that the title of the fee owners in the property shall be freed and released therefrom. The act of any commissioners in closing or abandoning any such road, or in renouncing or disclaiming any rights in any land delineated on any recorded map as a road, shall abrogate the easement theretofore owned, held, claimed or used by or an behalf of the public and the title of fee owners shall be freed and released therefrom . . .. (Emphasis supplied.) Hence, upon the lawful, statutorily prescribed vacation of the public's easement, the title to the fee of the dedicator or of his successors, or of the abutting lot owners, is freed of and released from the easement; therefore, those property owners who own land abutting the street or road would, upon surrender, have unencumbered fee title to the center of the right-of-way. Cf., Emerald Equities, Inc., supra. Applying the foregoing principles and statutes to the instant case, I conclude that the board of county commissioners has statutory authority to close and vacate the dedicated and platted roads and streets in question in accordance with the statutes, but may not by conveyance by deed or any other instrument of conveyance transfer the ownership and control thereof to the association. The title in fee simple to the vacated road beds or rights-of-way to the center thereof would remain, unburdened or unencumbered , in the abutting
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, Advisory Legal Opinion - Counties, roa… , g fee owners who presumably could, if they so chose, convey or transfer a portion of their property to the homeowners' association (assuming it is so organized and legally capacitated to hold the legal title thereto) for roadway purposes and control and maintenance thereof. As a caveat, it should be noted that if the general public is using the roads and streets in question (including public service vehicles such as garbage trucks, police, fire, or emergency vehicles), then the county should not close or vacate the roads or streets in question if such vacation would be injurious to the public welfare or violate individual property rights. It has been noted: '. . . [T]he power to vacate streets cannot be exercised in an arbitrary manner, without regard to the interest and convenience of the public or individual rights.' McQuillin Municipal Corporations s. 30.186a. Hence, absent a determination by the county commission that the general public welfare would benefit from vacation, it should not be accomplished, and in any event, the roads or streets can be vacated only in accordance with the statute as discussed above and title thereto cannot be legally conveyed or transferred to the homeowners' association.

You also ask whether the action of the county in closing and vacating the roads and streets in the subdivision would subject it to liability in inverse condemnation based upon a loss of access to the abutting lot owners. As a practical matter, the facts delineated in your inquiry suggest that the homeowners' association does not propose to restrict the access of any of the resident or nonresident abutting fee owners to any of the platted streets or roads or any property within the subdivision. Therefore, no cause of action in inverse condemnation could arise in such factual situation. However, a right of access to one's own property is a property right. Hence, an abutting fee owner may be entitled to compensation from a public body when it closes or vacates a public street for the consequent loss of such access on the theory that a property right has been taken without compensation. See, e.g., Pinellas County v. Austin, 323 So.2d 6 (2 D.C.A. Fla., 1975). An abutting owner, it should also be noted, would, upon vacation of the property, have a cause of action to enforce his right of access or private easement for roadway purposes as against the homeowners' association or other abutting owners who may obstruct access or travel upon any of the vacated roads. Such private (implied) easement would arise by virtue of conveyances and sales made with reference to the recorded plat which creates a private right to have the space marked on the plat as streets and roads remain open for ingress and egress and the uses indicated by the designation. As stated by the Florida Supreme Court in City of Miami v. Florida East Coast Ry. Co., 84 So.2d 726, 729 (Fla. 1920): The platting of land and the sale of lots pursuant thereto
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Advisory Legal Opinion - Counties, roa… p p g creates as between the grantor and the purchaser of the lots a private right to have the space marked upon the plat as streets, alleys, parks, etc., remain open for ingress and egress and the uses indicated by the designation. (Emphasis supplied.)

See also McCorquodale v. Keyton, 63 So.2d 906 (Fla. 1956); Burnham v. Davis Islands, Inc., 87 So.2d 97 (Fla. 1956); Reiger v. Anchor Post Products, Inc., 210 So.2d 283 (3 D.C.A. Fla., 1968), holding that the rights of abutting or adjacent purchasers depend upon principles of law applicable to private property rather than public dedication since these rights depend upon a 'private easement implied from sale with reference to a plat showing streets [etc.]' rather than upon any dedication to the public generally. 87 So.2d at 100. And see, Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A. Fla., 1978), wherein the court held that the rights of common owners of an easement on and for the purposes of a private road are limited to the purpose for which the easement was established and may not be exercised in derogation of the rights of other common owners. Hence, the court granted an injunction requiring a homeowners' association to remove speedbumps it had placed on the roadway which substantially invaded and violated the right of a particular homeowner to use his easement on the private road to get to his house and property. Cf., Emerald Equities, Inc., supra; 16.33 Acres of Land, supra; and AGO's 078-88 and 078-63. Prepared by: Frank A. Vickory Assistant Attorney General

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Advisory Legal Opinion - Municipalities, vacation of streets and roads

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Florida Attorney General Advisory Legal Opinion
Number: AGO 78-125 Date: October 24, 1978 Subject: Municipalities, vacation of streets and roads

David B. Higginbottom City Attorney Frostproof QUESTION: Is a municipality authorized by law to require abutting landowners who request vacation of a public street to prove a revesionary interest in the property and pay for the proportionate costs of an appraisal and for the proportionate appraised value of such property interest as conditions to the vacation? SUMMARY: A municipality possesses no authority under the Municipal Home Rule Powers Act to require property owners whose land abuts a dedicated public street to 'prove a reversionary interest' or any other property interest or property right in the streetbed prior to and as a condition to the vacation of such street. The determination and adjudication of property rights is a judicial function which may not be exercised by the legislative branches of government; hence any such exercise by a municipality does not constitute a lawful exercise of a municipal governmental power for a municipal purpose. In addition, while the vacation of streets in the public interest or when the streets are no longer required for public use is a legislative function which may be performed by a municipality, a municipality possesses neither statutory nor constitutional authority to exact payment for or otherwise interfere with the property rights of landowners whose property abuts a public street as conditions to or in exchange for the exercise of its power to vacate streets no longer required for public use.

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Advisory Legal Opinion - Municipalities, vacation of streets and roads

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Your letter advises that the Frostproof City Council has adopted a 'motion' which reads as follows: [I]n the future a qualified appraiser [shall] be used by the city to set the value of a street (to become property) when requested for closure. The person or persons making the request would have to bear the expense of the appraisal and proof of a reversionary clause. They would be notified and bills [sic] for the appraised property value before actual closing of the street could take place. Payment to be made on date of actual closing. Section 2(b), Art. VIII, State Const., provides in pertinent part: Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. (Emphasis supplied.) Statutory implementation of the broad grant of home rule is provided by Ch. 166, F. S., the Municipal Home Rule Powers Act. Section 166.051(1), F. S., of that act states in relevant part that 'municipalities . . . may exercise may power for municipal purposes, except when expressly prohibited by law.' (Emphasis supplied.) Thus, it is clear that the only limitation upon the exercise of power by a municipality is that it must be exercised for a municipal purpose. State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla. 1977). Although the phrase 'municipal purposes' is not defined by the constitution, it is defined by s. 166.021(2), F. S., as 'any activity or power which may be exercised by the state or its political subdivisions.' But see City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764, 765-769 (Fla. 1974) (Dekle, J., concurring), in which Justice Dekle observed: It is not the definition of municipal purposes found in . . . s. 166.021(2) that grants power to the municipality . . . but rather the provision of . . . s. 166.021(1) which expressly empowers municipalities to 'exercise any power for municipal purposes, except when expressly prohibited by law.' It is a fundamental principal in this state that the determination and adjudication of property rights is a judicial function which cannot be performed by the Legislature. Hillsborough County v. Kensatt, 144 So. 393 (Fla. 1932); State Plant Board v. Smith, 110 So.2d 401 (Fla. 1959); Daniels v. State Road Dept., 170 So.2d 846 (Fla. 1964). Legislation which constitutes an invasion of the

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province of the judiciary is invalid. Thursby v. Stewart, 138 So. 742 (Fla. 1931); Simmons v. State, 36 So.2d 207 (Fla. 1948). Thus, while the vacation of streets is a legislative function which may be validly delegated to municipalities (see Sun Oil Company v. Gerstein, 206 So.2d 439, 440 (3 D.C.A. Fla., 1968), AGO 075-171), no legislative body (whether state, county, or municipal) is authorized to invade private property rights or require abutting property owners to prove a reversionary or any other interest in real property as a condition to the vacation of a public street. Accordingly, the action taken by the Frostproof City Council does not constitute a municipal purpose; and, therefore, it is outside the scope of municipal home rule powers possessed by the municipality. Moreover, under the general rule, the interest acquired in land by a municipal corporation for street purposes is held in trust for the benefit of all the public, regardless of whether the corporation owns the fee or has merely an interest therein. Sun Oil Company v. Gerstein, supra; 30 Am. Jur.2d Highways Streets and Bridges s. 159. A municipality is empowered to vacate streets only when the vacation is in the public interest or when the street is no longer required for public use and convenience. 64 C.J.S. Municipal Corporations s. 1668. Consequently, in AGO 078-118, I noted, as a caveat, with respect to the vacation of county roads: [I]f the general public is using the roads and streets in question (including public service vehicles such as garbage trucks, police, fire or emergency vehicles), then the county should not close or vacate the roads or streets in question as such vacation would be injurious to the public welfare or violate individual property rights. Applying these principles to your inquiry, it is clear that the city council should not undertake to vacate any streets in the absence of a determination that the general public would benefit from the vacation or that such streets are no longer required for the public use and convenience. As to whether a municipality is authorized to exact charges or payments from abutting landowners as a condition to or in exchange for the vacation of a public street, it is necessary to analyze the property interests possessed by the public and the abutting or adjoining landowners in public streets. Recently, in AGO's 078-63, 078-88, and 078-118, I examined the elements and effect of the dedication of property for public use. There are two basic requirements to the existence of a valid dedication to the public. First, there must be a clearly manifested intention by the owner of the property to dedicate it to public use. Second, the public, through its authorized agents, must clearly show its intent to accept the dedication. City of

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Advisory Legal Opinion - Municipalities, vacation of streets and roads

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Miami v. Florida East Coast Railway Co., 84 So. 726 (Fla. 1920); Roe v. Kendrick, 200 So. 394 (Fla. 1941). An offer of dedication to the public may be accomplished by making and recording a plat and selling lots with reference thereto. See, e.g., Florida East Coast Railway Co. v. Worley, 38 So. 618 (Fla. 1905); Miami Beach v. Undercliff Realty and Investment Co., 21 So.2d 783 (Fla. 1945); and see, s. 177.081, F. S. However the dedication to the public is accomplished, it is clear that such dedication does not have the effect of transferring legal title from the grantor to the public. To the contrary, the fee remains in the grantor (or his grantees) while the public acquires only a right of easement in trust, so long as the dedicated land is used for the intended purpose of the dedication. Attorney General Opinion 078-118. Unless otherwise specifically provided in the conveyance, the legal title of the grantor in the dedicated property passes to the grantees of those lots sold with reference to a plat, which lots abut the dedicated streets. Their title extends to the center of the street subject to the public easement. Walker v. Pollack, 74 So.2d 886 (Fla. 1954); Smith v. Horn, 70 So. 435 (Fla. 1915); New Fort Pierce Hotel Co. v. Phoenix Tax Title Corp., 171 So. 525 (Fla. 1936); United States v. 16.33 Acres of Land in County of Dade, 342 So.2d 476, 480 (Fla. 1977); cf. Emerald Equities v. Hutton, 357 So.2d 1071 (2 D.C.A. Fla., 1978). Therefore, a street in which the public has only an easement when properly vacated ceases to be a street; the abutting landowners continue to hold fee simple title to the center of the vacated roadbed unencumbered by the easement. Smith v. Horn, supra; Robbins v. White, 42 So. 841, 843-844 (Fla. 1907); AGO 078-118. See also s. 177.081(1), F. S., providing that every plat of a subdivision filed for record must contain a dedication by the developer; s. 177.081(2), F. S., providing that all streets, rights-of-way, and public areas shown on plats approved by the affected local governments shall be deemed dedicated to the public for the uses and purposes stated in such plat, unless otherwise stated therein by the dedicator; s. 177.085(1), F. S., providing that when any landowner subdivides his land and dedicates streets or roadways on the plat but reserves unto the dedicator the reversionary interests in the dedicated streets or roadways, and thereafter conveys abutting lots, such conveyance carries with it the reversionary interest in the abutting street to the center line, unless the landowner clearly provides otherwise in the conveyance; and s. 177.085(2), F. S., providing that prior holders of any interest in the reversionary rights in the streets and roads in recorded plats of subdivided lots, other than the owners of abutting lots, 'shall have 1 year from July 1, 1972, to institute suit . . . to establish or enforce the right,' and that, if no such action is instituted within that time, any

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right, title, or interest and all right of reversion shall be barred and unenforceable. With regard to the instant inquiry, therefore, it is apparent that the Frostproof City Council does not 'own' streets which have been dedicated to public use. Cf. AGO 078-118 in which this office concluded that a county was not authorized to convey or transfer ownership and control of dedicated streets to a 'homeowners association' since the county possessed no legal title in the property which it could convey or transfer. Under such circumstances, there would appear to be no legal basis upon which the city could require abutting fee owners to pay to secure property interests which they already possess. See McQuillin Municipal Corporations s. 30.189, at 123 (3rd rev. ed. 1977), stating: 'A municipality is not entitled to compensation for loss of a public easement in streets in which it does not own the fee.' Accord: Lockwood & Strickland Co. v. City of Chicago, 117 N.E. 81, 82 (Ill. 1917), in which the court held, among other things: [I]t would be beyond the power of the city to grant or convey to a private person or corporation the ground embraced in a vacated street or alley. Whether a city owns the fee in an alley or merely an easement, when it is vacated because no longer needed for public use, the law disposes of the reversionary interest, and the reversionary rights cannot be granted or conveyed by the city. . . . Whether the alley was no longer needed for public use, and whether the public interest would be subserved by its vacation, could not be made to depend on how much the city could get for its action. The legislative powers of a city must be exercised for the public benefit, but that does not authorize a municipality to sell or bargain legislation as a means of obtaining revenue. The State Constitution provides that all natural persons shall have the inalienable right 'to acquire, possess and protect property . . ..' Section 2, Art. I, State Const. Additionally, s. 9, Art. I, State Const., provides that no person 'shall be deprived of . . . property without due process of law . . ..' Section 6, Art. X, State Const., states that '[n]o private property shall be taken except for a public purpose and with full compensation therefor . . ..' Thus, the acquisition, possession, enjoyment, use, and alienation of property and property rights are controlled by constitutional law and the common law. Moreover, the term 'property' for purposes of the abovecited constitutional provisions includes more than the abutting landowner's fee simple title. As stated in Seldon v. City of Jacksonville, 10 So. 457, 459 (Fla. 1891): There is incident to abutting property, or its ownership, even

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Advisory Legal Opinion - Municipalities, vacation of streets and roads

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where the abutter's fee or title does not extend to the middle of the street, but only to its boundary, certain property rights which the public generally do not possess. They are the right of egress and ingress from and to the lot by the way of the street, and the right of light and air which the street affords. Viewing property to be not the mere corporal subject of ownership, but as being all the rights legally incidental to the ownership of such subject, which rights are generally said to be those of user, exclusion, and disposition, or the right to use, possess, and dispose of, . . . we are satisfied that the rights just mentioned are within the meaning of the word 'property,' as it is used in this constitutional provision. [10 So. 457, 459 (1891) (construing s. 12, Declar. Rts., State Const. 1885, in part a predecessor of s. 6, Art. X, State Const.).] See also Lutterloh v. Mayor and Council of Town of Cedar Keys, 15 Fla. 306, 308 (1875); City of Miami v. East Coast Ry. Co. , 84 So. 726, 729 (Fla. 1920); McCorquodale v. Keyton, 63 So.2d 906 (Fla. 1956); Monell v. Golfview Road Association, 359 So.2d 2 (4 D.C.A. Fla., 1978). Accordingly, it has been held that the rights of abutting or adjacent purchasers depend on principles of law applicable to private property rather than public dedication since these rights depend upon a 'private easement implied from sale with reference to a plat showing streets [etc.]' rather than upon any dedication to the public generally. Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla. 1956). An abutting landowner may be entitled to compensation from a public body when it vacates a public street for consequent loss of access to such landowner's property on the theory that a property right has been taken without compensation. See Pinellas County v. Austin, 323 So.2d 6, 8 (2 D.C.A. Fla., 1975). If follows, then, that the several property interests of abutting landowners are subject to constitutional protection. Clearly the attempt by a municipality to usurp private property rights or property interests or to barter or sell such property rights as conditions to or in exchange for the exercise of its legislative power to vacate streets no longer required for public use, does not constitute a municipal purpose and is outside the scope of municipal home rule powers. Prepared by: Patricia R. Gleason Assistant Attorney General

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4/30/2009

Case 2:09-cv-00791-CEH-SPC Document 159

Filed 04/21/10 Page 1 of 7

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION JENNIFER FRANKLIN PRESCOTT, DR. JORGE BUSSE, Plaintiffs, v. Case No. 2:09-cv-791-FtM-36SPC

ROGER ALEJO; KENNETH M. WILKINSON; JACK N. PETERSON; ROGER DESJARLAIS; LEE COUNTY, FLORIDA; LEE COUNTY VALUE ADJUSTMENT BOARD; LORI L. RUTLAND; STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND; STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION; CHAD LACH; CHARLES -BARRY- STEVENS; REAGAN KATHLEEN RUSSELL; KAREN B. HAWES; ROGER DESJARLAIS; CHARLIE GREEN; BOB JANES; BRIAN BIGELOW; RAY JUDAH; TAMMY HALL; FRANK MANN; UNITED STATES ATTORNEY(S); SEAN P. FLYNN; E. KENNETH STEGEBY; DAVID P. RHODES; A. BRIAN ALBRITTON; CYNTHIA A. PIVACEK; JOHNSON ENGINEERING, NC.; STEVEN CARTA; MIKE SCOTT; HUGH D. HAYES; GERALD D. SIEBENS; STATE OF FLORIDA ATTORNEY GENERAL WILLIAM M. MARTIN; PETERSON BERNARD; SKIP QUILLEN; TOM GILBERTSON, __________________________________/ FEDERAL DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT The United States of America, by and through the undersigned Assistant United States Attorney, and on behalf of the named defendants A. Brian Albritton, U.S. Attorney for the Middle District of Florida, and David P. Rhodes, Sean P. Flynn, and E. Kenneth Stegeby, Assistant U.S. Attorneys for the Middle District of Florida (the “USAO Defendants”), submits their Opposition to Plaintiffs’ Motion for Summary Judgement Against Defendant U.S. Attorneys, Notice of Case Fixing & Corruption on Record and Conspiracy of Corruption by “Legal Whores” Chappell & Corinis, Notice of Criminal

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Concealment of Forged Parcel 12-44-2D-0I-00000.00A0 (“Motion for Summary Judgment”). Plaintiffs’ Motion should be denied in all respects. The Plaintiffs has fallen far short of demonstrating that they are entitled to summary judgment. STATEMENT OF UNDISPUTED FACTS As it pertains to the USAO Defendants, Plaintiffs’ Complaint includes claims against the USAO Defendants for fraudulent concealment, material misrepresentation, conspiracy, and obstruction of justice, based on the USAO Defendants alleged conspiracy to conceal, and to further, the Lee County defendants’ scheme to deprive Plaintiffs of their property rights. Busse VII Complaint ¶¶ 222-230. The “evidence” that Plaintiffs cite to support their concusory allegations of fraud and conspiracy by the USAO Defendants is that a 1969 Lee County resolution was forged. The only other pertinent fact appears to be that the USAO Defendants diagree with the Plaintiffs’ position. In their Motion, the Plaintiffs claim to be entitled to summary judgment against the USAO Defendants on the issues in their Compalint for two reasons, as described in their prayer for relief: An order for Summary Judgment against said Defendant U.S. Attorneys under FRCP 56, because said forgeries were “no genuine issue as to any material fact”, and because Defendants never answered and/or defended against the conclusively proved allegations in Plaintiffs’ Complaint. Motion, p. 29.1

The majority of Plaintiffs’ so-called “summary judgment” motion consists of accusations against Magistrate Judge Chappell of a laundry list of misdeeds, all of which have been repeated ad nauseam, using scandalous and impertinent language, in Plaintiffs’ filings. These allegations do not pertain to the USAO Defendants.

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ARGUMENT I. PLAINTIFFS FAIL TO ESTABLISH ENTITLEMENT TO SUMMARY JUDGMENT UNDER RULE 56 Plaintiffs’ Motion for Summary Judgment makes no effort to comply with the basic requirements of such a motion under Fed. R. Civ. P. 56. To prevail on a motion for summary judgment, the moving party must establish that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004). While the court is required to “make all reasonable inferences in favor of the party opposing summary judgment,” it is not required to make all possible inferences in the non-moving party's favor. Chapman v. Al Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Whether a fact is material is dictated by the substantive law underlying the moving party’s claims. Celotex, 477 U.S. at 323 (“The substantive law applicable to the claimed causes of action will identify which facts are material.”) If a moving party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, the non-moving party must “go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and 3

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admissions on file, and designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. Here, Plaintiffs have failed to establish that there are any facts in the record that are material, let alone that there are undisputed material facts. Conclusory statements cannot pass for “facts” in a summary judgment motion. B. Plaintiffs’ Motion Fails to Establish Any Material Facts

The “facts” Plaintiffs’ cite in their brief are not facts at all; rather, the facts consist of Plaintiffs’ insistence that a 1969 Lee County document is a forgery, and that all defendants know that it is a forgery: there was no genuine issue as to any material fact, because Governmental forgeries “D.R. 569/875" and “12-44-20-01-00000.00A0” were contrary to Florida and Federal law and null and void from the outset. The fake legal descriptions in said forgeries never existed, Plat Book 3, Page 25 (1912). It is not, however, an established fact that the document is forged or invalid. Plaintiffs make no effort to cite to anything in the record -- other than their own statements -- to establish any facts, material or otherwise. Thus, the Plaintiffs cannot meet their burden to establish that there is no genuine issue as to any material fact, and summary judgment must be denied. Celotex, 477 U.S. at 322. C. Plaintiffs Are Not Entitled to Judgment as a Matter of law

Plaintiffs fail to state any cognizable legal arguments in support of their conclusory allegations against the USAO Defendants. For example, they fail to plead even the bare minimum required to state a claim for fraud. Allegations of fraud must satisfy the heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure Rule 9(b), which requires that “a party must state with particularity the 4

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circumstances constituting fraud.” Fed.R.Civ.P. 9(b). Likewise, Plaintiffs must plead with particularity that the parties to an alleged conspiracy knew of the conspiracy and agreed to commit fraud. See Tippens v. Round Island Plantation, L.L. C., No. 09-CV-14036, 2009 WL 2365347, at *5 (S.D.Fla. July 31, 2009). Plaintiffs’ allegations of misrepresentation and obstruction of justice are stated in conclusory fashion, with absolutely no support. In addition to their failure to establish the absence of a disputed genuine issues of material fact (or any fact), Plaintiffs can point to no issue of law on which they would be entitled to judgment, even if they did produce material facts (which they have not). D. Waiver

Finally, the Plaintiffs’ argument that the USAO Defendants somehow “waived” their defenses against the Plaintiffs’ Complaint is nonsense. The USAO Defendants timely filed a motion to dismiss premised on absolute immunity, res judicata, and frivolousness. That motion is pending. There has been no waiver. Plaintiffs’ argument on this point should be rejected, along with the other arguments Plaintiffs raise in support of their Motion for Summary Judgment. CONCLUSION In light of the foregoing, the USAO Defendants submit that this Court should deny plaintiffs’ Motion for Summary Judgment in all respects. Additionally, the USAO Defendants respectfully renews their request that this Court institute a pre-filing injunction against Plaintiffs, and dismiss Plaintiffs’ Complaint with prejudice, for the reasons outlined in the USAO Defendants’ pending motions (Dkt. No. 69 and 149).

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Certificate of Service I HEREBY CERTIFY that on April 21, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of filing. I FURTHER HEREBY CERTIFY that on April 21, 2010, I further served the below listed non-participants in the CM/ECF system by U.S. mail, first class postage prepaid: JORG BUSSE P.O. Box 11124 Naples, FL 34101-7561 Plaintiff JENNIFER FRANKLIN PRESCOTT P.O. Box 845 Palm Beach, FL 33480-0845 Plaintiff /s/ Jennifer Waugh Corinis JENNIFER WAUGH CORINIS Assistant United States Attorney

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4/21/2010

FindACase™ | BEN D. THURSBY v. ISA…

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BEN D. THURSBY v. ISAAC A. STEWART (12/23/31) SUPREME COURT OF FLORIDA, EN BANC Docket Number available at www.versuslaw.com Citation Number available at www.versuslaw.com December 23, 1931 BEN D. THURSBY, ET AL., APPELLANTS, v. ISAAC A. STEWART, APPELLEE; ISAAC A. STEWART, APPELLANT, v. BEN D. THURSBY, ET AL. APPELLEES An appeal from the Circuit Court for Volusia County; Daniel A. Simmons, Judge. Hull, Landis & Whitehair, of DeLand, for Board of Trustees of Volusia Co. Fair; W. J. Gardiner, for Daytona Beach, for Ben D. Thursby, et al., individually and as constituting Board of County Commissioners of Volusia County; Stewart and Stewart, for DeLand, for Solicitors for Isaac A. Stewart. Davis, Commissioner, Buford, C. J., And Whitfield, Ellis, Terrell, Brown And Davis, J. J., concur. Author: Davis DAVIS, Commissioner. -- Isaac A. Stewart, whom we will refer to as the complainant, the owner of property and a taxpayer in Volusia County, Florida, filed his bill of complaint in the Circuit Court of Volusia County against the members of the Board of County Commissioners of said County of Volusia, individually and as constituting the said Board of County Commissioners, Samuel D. Jordan, Clerk, etc., Volusia County Fair Association, Inc., a corporation, Board of Trustee of Volusia County fair, a corporation, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, individually and as constituting the members of "Board of Trustees of Volusia County Fair", a corporation, and herein alleged substantially that the said County Commissioners, without authority of law, donated and paid out, as a gratuity, the sum of four hundred dollars of the public funds of Volusia County to Volusia County Fair Association, a corporation, to help in securing the operation of a county fair, a warrant for said sum having been issued by the Chairman and Clerk of the said Board; that in the budget prepared by said Board, an appropriation of $6,000.00 was provided for to be paid out of the agricultural fund to the said Volusia County Fair Association, and that it was out of said appropriation that said sum of $400.00 was paid; that at the regular session of the Legislature of Florida, in 1931, a bill was passed entitled, "An Act requiring the Board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00) which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A.D. 1930, and to end on the 30th day of September, A.D. 1931." the same being known and referred to herein as Senate Bill No. 910; that the same Legislature also passed a bill entitled, "An Act creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, mainatain and carry on annually a fair or exposition in said county, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said Act not to exceed One Mill on the dollar, and giving the said Board of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said act and all funds derived from said tax or any other sources." the same being known and referred to herein as Senate Bill No. 911 and that both bills were approved by the Governor on June 11,

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FindACase™ | BEN D. THURSBY v. ISA…

1931; that pursuant to the terms of Senate Bill No. 910, the said Board of County Commissioners, had been requested by said Board of Trustees of Volusia County Fair, to pay over to them the sum of $6,000.00 which has been appropriated to Volusia County Fair Association, and that the defendants, W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, were designated in Senate Bill No. 911 as such Board of Trustees; that although the complainant had objected personally to a number of said Board of County Commissioners against the payment of said sum, a meeting of said Commissioners had been called to be held on July 13, 1931, for the purpose of taking action and making payment of such money to the Volusia County Fair Association, and to include in their budget for the year 1931, such sum of money as may be required or demanded by the Board of Trustees of Volusia County Fair, and it was alleged upon information and belief that it was the intention of said Board of Commissioners to misappropriate the further sum of $6,000.00 by paying it over to the Board of Trustees of Volusia County Fair in accordance with the provisions of said Acts of the Legislature; that the appropriation to the Volusia County Fair Association was without authority of law, in that it was in violation of Section 9, Article X, of the Constitution of Florida, which provides that, "The Legislature shall not authorize any County X X X to obtain or appropriate money for or to loan its credit to any company, corporation, association, institution or individual," and that the Legislature is without power to turn over the administration of public funds or to expend or disburse the same in any way, except under and pursuant to law, by a duly commissioned officer of the State of Florida, or of the Counties of the State, for a valid County purpose. Complainant alleged further, upon the information and belief, that said bills, 910 and 911, copies of which were attached to the bill of complaint, are each unconstitutional because it is beyond the legislative power to impose compulsory taxation upon the people of Volusia County; that said bill 911, is unconstitutional and void because it is not authoritative in nature, but is mandatory as to the requirement that the County Commissioners pay said sum of money arbitrarily and without defining any purpose for which it is to be used, that it is not within the power of the Legislature to directly levy or compel the levying by a county of an ad valorem tax for an exclusive local purpose, or to compel the appropriation of money by a county in which the State has no concern, that it mandatorily requires the appropriation of money to be expended by non-commissioned officers, designated as such, in violation of the requirements of the Constitution, and that it violates Section 25 of Article III, of the Constitution, which requires that the legislature shall provide by general law, for incorporating educational, agricultural, mechanical, transportation, mining, mercantile and other useful companies or associations as may be deemed necessary, but shall not pass any special law on any subject, and any such special law shall be of no effect. The constitutionality of Senate Bill No. 911 is further attacked upon the grounds that, (a) it mandatorily requires the said Board of Trustees to acquire, purchase and take over in the name of the county, all property of Volusia County Fair Association, Inc., (at a sum not to exceed $83,000.00, and pledging the name and credit of Volusia County for the payment thereof), and to promote, maintain and carry on annually, a fair or exposition in said county, and it also, mandatorily requires the Board of County Commissioners to levy a tax to raise funds sufficient to carry out the provisions of the Act, (b) it requires the Board of Trustees, in effect, County Officers, to be freeholders to be elected by districts and not by the County at large, (c) it names and designates the said officers, until an election provided for therein, in violation of the provision of Section 27, Article III, which provides for an election of officers by the people or appointed by the Governor, (d) it permits the holding of such offices after the next gneeral election to be held in the State, (e) it -- a special law -- attempts to regulate and determine the compensation of certain officers provided for therein, (f) it provides that if the said Board of Trustees at the time of taking title to the said property, does not have on hand, funds sufficient to pay the purchase price in full, it is authorized and empowered to make and issue, interest bearing negotiable promissory notes in the name of Volusia County, for the deferred payment, and to secure the same by mortgage on all said property, or any parts thereof, (g) it is in conflict with Sec. 1486, Revised General Stats., Sec. 2191, Compiled General Laws of Florida, 1927, a general law which provides that, "No contract shall be let for the work on any road or street, construction or building of any bridge, erecting or building of any house, and that no goods, supplies or materials for county purposes or use be purchased when the amount to be paid therefor by the county shall exceed $300.00 unless notice thereof be advertised once a week for at least two weeks in some newspaper of general circulation of the County, calling for bids upon the work to be done, and for goods, supplies or materials to be purchased by the county and requiring in each case the bid of the lowest responsible bidder shall be accepted unless all bids are refused because same are too high." It is further alleged upon information and belief, that the Board of County Commissioners are about to levy the millage provided in said act to be levied, for the year 1931, and that the said Board of Trustees intends to pay to themselves out of the funds so collected and paid out of the public funds of Volusia County, or to be raised by general taxation, the salaries and compensation provided therein to be paid to themselves for services as such trustees, unless restrained by order of the Court. The complainant prayed for a temporary injunction, (1) restraining the members of the Board of Trustees of Volusia County Fair from paying to themselves or to one another, any salary or compensation for any services rendered, or to be rendered, in or about the performance of the duties prescribed by the Act creating the said Board of Trustees of Volusia County Fair, (2) restraining the said defendants from submitting "to the Board of County Commissioners of Volusia County, Florida, on the 1st Monday in July or at any time thereafter, any estimate of any pretended amount of money necessary to be raised for the purpose of carrying out the provisions of said act, to-wit, Senate Bill No. 911, as aforesaid, and that said Ben D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar and Davis Forster, and Saml. D. Jordan, Clerk of said Board, be enjoined from levying annually or at any time ad valorem tax for the purpose of carrying out the provisions of said Act," (3) restraining the Volusia County Fair Association and the individuals constituting the members of said Board of Trustees "from issuing any note under color of said Senate Bill No. 911 for the sum of $83,000.00 or any other sum of money in the name of the County of Volusia and State of Florida, for the purchase of any property or other assets of Volusia County Fair Association, Inc., a corporation organized and existing under and by virtue of the laws of the State of Florida, or in any wise pledging or obligating the County of Volusia and State of Florida to any extent whatsoever," and that said injunction be made permanent. The bill was sworn to by the Complainant.

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FindACase™ | BEN D. THURSBY v. ISA…

Notice of an application for a temporary injunction was filed in the cause, and thereupon the defendants, Volusia County Fair Association, Inc., and Trustees of Volusia County Fair, interposed certain objections to the granting of same, which objections, were under oath, and based, in substance upon the grounds that (1) the bill is multifarious, (2) that the Volusia County Fair Association, to whom the $6,000.00 appropriation was made, was chartered under the General Laws of Florida authorizing the formation of corporations not for profit, for the purpose of operating fairs, etc., and which law authorized the Board of County Commissioners to make contributions to such association, to assist in carrying out its purpose, and to expend in their discretion, such sums as they deem best in aiding the development of the agricultural, horticultural and live stock resources of the county, giving publicity to the same by aiding the exhibiting of such resources at or in connection with such fairs, including the offering and paying of premiums, (3) that Senate Bill No. 910 is in pari materia with Senate Bill No. 911, and that said Senate Bill No. 911 specifically declares that the purchase and taking over of the property of Volusia County Fair Association, and the promoting, maintaining and carrying on annually of a fair, the levying of the tax and paying the same over to the Board of Trustees of Volusia County Fair, are all for a valid County purpose, (4) that it is shown to be the duty of the County Commissioners to pay over the said sum of $6,000.00 and that no showing is made that any of the defendants are about to issue the said promissory notes, (5) that the appropriation of money to the Volusia County Fair Association is not for the benefit of any such company, but for the benefit of the County, and its citizens, (6) that it is not true that the tax sought to be enjoined or the appropriation of money sought to be enjoined, is one pertaining to an exclusive local affair, and in which State of Florida has no interest or concern, (7) that it is not true that the Board of Trustees of the Volusia County Fair are non-commissioned officers, but on the contrary, they have been commissioned in the form contemplated by the constitution of the State of Florida, (8) that Senate Bills numbered 910 and 911, do not authorize the County to loan its credit to any company, association or individual, (9) that the Board of Trustees of Volusia County Fair is nothing more than a subordinate public agency, established in aid of a public purpose, and that the provisions of Section 25, Art. 3, of the Constitution do not apply to such Board, and that Senate Bill No. 911 does not contain special legislation on subjects forbidden by said Section of the Constitution, (10) that the provision of Senate Bill No. 911 that the Board of Trustees of Volusia County Fair shall be free-holders does not curtail the Governor's power of selection so as to violate Section 27 of Article III of the Constitution, or any Constitutional provision relating thereto, (11) that Senate Bill No. 911 provides that in the event the naming of the Trustees of the Volusia County Fair should be judicially determined to be unconstitutional, that the Governor shall appoint such trustees and that the Governor has appointed the same individuals as are named in the Act, to be such Trustees, and they have been duly commissioned, (12) that the term of office of the said trustees is less than six years, and is not condemned by any provision of the State Constitution, (13) that Senate Bill No. 911 does not attempt to fix the fees of officers of the State or County, (14) that the said purchase money, notes and mortgage are not in effect bonds, and if they were, the provision authorizing the issuance of same, is separable from the remainder of the Act and may be eliminated without affecting the primary purpose of the Act, (15) that the legislature was competent to provided that the provisions of Section 1486, Revised Gen. Statutes of Florida, Section 2191, Compiled General Laws of Florida, 1927, shall not apply to the Board of Trustees of the Volusia County Fair, nor to any contracts or agreements of said Board, or to any purchases or obligations thereof, and if held otherwise, such provision may be eliminated from the Act without affecting the purpose of the Act, and (16) that the bill is without equity. The application for a temporary injunction was denied by Judge Daniel A. Simmons, sitting in Volusia County, Complainant then amended his bill of complaint by alleging further, upon information and belief, in substance, that the property referred to in Senate Bill No. 911, was acquired by the Volusia County Fair Association, Inc., by deed from Sidney A. Wood, as Executor and Trustee under the last will and testament of Asa D. McBride, deceased, for a recited consideration of Ten Dollars and other good and valuable consideration, but as a matter of fact, no consideration was paid therefor; that the said land was donated to the Volusia County Fair Association, Inc., and was in violation of the trust reposed in the said Executor, and Trustee, inasmuch as the said will only authorized him to sell or convey real estate of the estate for the purpose of converting the same into cash for re-investment and uses as directed under the terms of the will, and in consequence thereof, the Volusia County Fair Association, Inc., did not have title to the property, and that the same with the improvements thereon, constituted practically all of the property and assets of the said Volusia County Fair Association, Inc., and that unless restrained and enjoined by order of the Court, the said property will be acquired by the said Board of Trustees, and obligations will be issued in the name of the County of Volusia to the great and irreparable injury of said County and the taxpayers therein. The said amendment alleged further, that upon the day the bill of complaint was filed, the said County Commissioners prepared their tentative budget for the fiscal year beginning October 1, 1931, and placed therein, an appropriation of $15,000.00 for the use and benefit of the said Board of Trustees of Volusia County Fair, which unless prevented by order of Court, will cause a millage to be levied upon the taxable property of Volusia Count, in an amount sufficient to raise said sum of $15,000.00. Certified copies of the said deed and the said will were attached as exhibits and made a part thereof. The amendment was verified by the oath of the complainant as true, except as to matters stated on information and belief, and as to such matters, he believed them to be true. The judge of the Seventh Circuit being absent from the Circuit, the bill of complaint and the amendment thereto, without notice to the defendants, was presented to Judge Paul C. Albritton of the Twenty-Seventh Circuit, who thereupon granted a temporary restraining order as prayed for in the bill. In support of the application, Tom Stewart, an attorney for the Complainant, made an affidavit before Judge Albritton, which averred, "That the said defendant Board of County Commissioners have deferred making payment of the money mentioned in the bill of complaint to the Board of Trustees of Volusia County Fair, because of an insufficiency of money in the agricultural fund of Volusia County, which fund has now become adequate to pay the sum of $6,000.00 and that urgent demands are being made on said Board of County Commissioners to make said payment, and that his Excellency, the Governor of Florida, has signified to said Board his desire that it make such payment promptly or show cause of not so doing; that said Board of County Commissioners has now under consideration the preparation of its annual budget, and is in almost continuous session from day to day in the preparation of same; that affiant believes that to give notice of this application for injunction would cause immediate payment of said sum and accelerate the injury sought to be enjoined; and believes that the injury apprehended will be done if an immediate remedy is not afforded the complainant, and affiant fears that the Board of Trustees of the Volusia County Fair may take title to said Fair property and issue obligations in the name of Volusia County in payment thereof unless immediate relief is granted." From the said order granting a temporary injunction the defendants, Ben D. Thursby, W. C. Jackson, Bedford Jones, T. K. Apgar, and Davis Forster, individually and as constituting the Board of County Commissioners of Volusia County, Florida, Volusia County, Saml.

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D. Jordan, Clerk of the Circuit Court, in and for Volusia County, Florida, and ex-officio Clerk of the said Board of County Commissioners for themselves and for the other defendants (naming them) on the 18th day of August, 1931, filed their notice and entry of appeal. On the said 18th day of August, the Volusia County Fair Assocation, Inc., and the Board of Trustees of Volusia County Fair, said Board consisting of W. E. Swope, Lillian Frances Nordman, G. A. Tyler, A. B. Prevatt and J. G. Dreka, jointly and severally moved the Court to dissolve the temporary injunction. Objection to the hearing was interposed by the complainant, but on 21st day of August, A.D. a hearing was held and an order was made by Judge Simmons, acting in the place and in stead of the Judge of the 7th Judicial Circuit dissolving the said injunction. From this order and the order of Judge Simmons denying the first application for a temporary injunction, the complainant appealed. The two appeals have been consolidated here. It is settled here that the granting, continuance and modification of temporary restraining orders are largely discretionary, and the rights of the general public, if affected thereby, should be considered. Suwannee & S.P.R. Co., vs. West Coast Ry. Co., 50 Fla. 609, 612, 39 So. 538; McMullen vs. Pinellas County, 90 Fla. 398, 106 So. 73. Equity Rule 46 provides that in all cases of applications for injunctions, the judge to whom presented, before granting the same shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined, and of the time and place where the motion is to be made, and no order shall be granted without such notice unless it is manifest to such judge from the sworn allegations in the bill or affidavit of the complainant, or other competent person, that the injury apprehended will be done, if an immediate remedy is not afforded, when he may grant instanter an order restraining the party complained of until the hearing or the further order of the court or judge. "To satisfy the granting of an injunction exparte, and without notice, the allegations of the sworn bill or accompanying affidavit must state facts showing how and why the giving of notice will accelerate or precipitate the injury complained of from which the court can determine for itself whether the giving of notice will, or is likely to so result, and such facts must make it manifest to the court that the giving of notice of the application will, or is likely to, have such result." Godwin vs. Phifer, 51 Fla. 441, 41 So. 597, and other cases cired therein. The allegations in a bill for an injunction must be clear, direct and positive, and must be verified by an affidavit, which also, must be direct and positive; and where any of the material allegations in the bill are stated upon information, there should be annexed to the bill, the additional affidavit of the person from whom the information is derived verifying the truth of the information thus given. If the direct and positive allegations of fact in the sworn bill as amended, are sufficient to constitute a ground for an injunction, and the refusal of the court to grant a temporary injunction upon the first application is not a bar to the making of the order upon the second application, the lower court should not be held in error for granting the order from which the first appeal was taken. We cannot say that the showing was not sufficient to dispense with notice to the opposite parties of the second application for an injunction. As a general rule, a second application will be denied merely on a showing that the first one was denied, unless complainant presents new and additional matter discovered since the former hearing but "the refusal of an application for a preliminary injunction does not bar complainant from making a second application, the decision being an act of discretion; and the Court may, in subsequent application, reach a different conclusion on the same or more convincing evidence. The court is not bound to adhere to its former ruling, nor is it bound, in case the former application was in another court, although it will generally do so by way of comity." 32 C.J. 336; Louisville & N.R. Co., vs. Ky. R.R. Commission, 214 Fed. 465. While a second application for an injunction, when based upon the same evidence or upon evidence which should have been presented upon the first application will generally be denied, it being a matter in which judicial discretion should be exercised, a court will not be held in error in granting a second application if a clear case is presented. In McMullen vs. Pinellas County, supra, we held that "to the granting of every temporary injunction, two essential conditions must prevail. The bill must allege facts which appear sufficient to constitute a cause of action or ground for injunction, and, on the full showing made from both sides it must appear in the light of the circumstances, that the injunction is necessary to protect the legal rights of the plaintiff pending the litigation." On an application for a temporary injunction, the chancellor may consider the merits of the bill. City of Apalachicola vs. Apalachicola Land Co., 9 Fla. 340, 70 A.D. 284; McKinney vs. County Commissioners Bradford County, Fla. 267, 4 So. 855, McMullen vs. Pinellas County, supra. That a citizen and taxpayer may enjoin an unauthorized expenditure of public money, is well established. Rickman vs. Whitehurst, 73 Fla. 152, 74 So. 205, Whitner vs. Woodruff, 68 Fla. 465, 67 So. 110; Anderson vs. Fuller, 51 Fla. 380, 41 So. 684, 6 L.R.A. (NS) 1026, 120 A.S.R. 170, Lassiter & Co. vs. Taylor, 99 Fla. 819, 128 So. 14. Likewise, equity has jurisdiction to enjoin the assessment and collection of an illegal tax levied upon real estate, which, if assessed and collected, will cast a cloud over the title of such real estate. Pickett vs. Russell, 42 Fla. 116, 634, 28 So. 764. We are, therefore, confronted with the inquiry; Are the facts alleged, either in the original bill, or the bill as amended sufficient on the showing made by both sides to justify the chancellor in the exercise of his discretion, in granting the second application for an injunction? In all cases where there is no constitutional provision making an expense chargeable to the county, it must be for a county purpose in order to justify the legislature in authorizing a county to resort to taxation to defray it (Opinion of Justices, 13 Fla. 687; Board of County Commissioners Escambia County vs. Board of Pilot Commissioners, 52 Fla. 197, 42 So. 697). There is no general rule for determining what is a county purpose (Commissioners of Duval County vs. Jacksonville, 36 Fla. 196, 18 So. 339). In Jordan vs. Duval

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County, 68 Fla. 48, 66 So. 298, we said: "While the Constitution provides that 'the Legislature shall authorize the several counties * * * in the state to assess and impose taxes for county * * * purposes, and for no other purposes,' the term 'county purposes' is not defined or amplified in the organic law. This being so, the Legislative power, in exercising its appropriate law making functions, may determine what is a 'County purpose,' and the courts are not authorized to render such determination ineffectual, unless some provision of the Constitution is violated, or unless the particular enactment can have no legal or practical relation whatever to any 'county purpose.' Where the courts may as in this case inquire into the existence of legislative power to enact a statute, the absence of power must clearly appear before the statute will be declared to be ineffectual for the purpose designed." See Also, Jacksonville vs. Bowden, 67 Fla. 181, 64 So. 769; Anderson vs. Ocala, 67 Fla. 204, 64 So. 775. "A staute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it, can be pointed out." Neisel vs. Moran, 80 Fla. 98, 85 So. 346. Complainant insists that both Senate Bill No. 910 and Senate Bill No. 911 violate Section 10 of Article 9 of our Constitution, which provides that "the Legislature shall not authorize any county * * * to obtain or appropriate money for, or to loan its credit to any corporation, association, institution or individual." In the first state contention, the county commissioners are in accord with complainant. On the other hand, the Volusia County Fair Association, Inc., and the Trustees of the Volusia County Fair contend that the Volusia County Fair Association, Inc., is a non-profit corporation, and any taxes levied to obtain funds to be paid to it are not levied for the benefit of a chartered company, but for the benefit of the people; that this court held in Earle vs. Dade County, 92 Fla. 432, 109 So. 331, that taxation for a fair and agricultural exhibition is for a valid county purpose, and that being true, they aske, "What valid objection is there to placing the money in the hands of a non-profit corporation to aid in the carrying out of such purpose?" It is not for the Court to say that such an act shall be upheld or declared invalid because the believe it to be wise or illadvised, as the case may be. We are only concerned in whether or not it is denounced by some provision of the organic law. In Earle vs. Dade County, 92 Fla. 432, 109 So. 331, we upheld a decision of the lower court, validating bonds of the County of Dade, the issuance of which was authorized by the Legislature under an act providing for the acquirement and holding of real property for fair and fairground purposes, and for the construction thereon of buildings and other structures necessary or desirable for the purpose of conducting fairs and agricultural exhibits, authorizing the County Commissioners to levy upon property an annual tax to be expended in carrying out such purpose and requiring them from time to time, upon the issuance of such bonds, to levy and cause to be collected, a tax sufficient to pay the interest thereon, and the annual installments of such bonds from year to year, as they mature. In speaking for the Court, Justice Brown said. "The effect of these fairs has no doubt been to stimulate an interest in improved agricultural methods. It may also be true that the public benefits to be derived from such fairs are sufficient to authorize the Legislature to place the expense thereof upon the public rather than upon a few individuals who have the public spirit to promote and organize such enterprises. As to this feature of the act in question, though somewhat paternalistic in its nature, we arenot prepared to say that the Legislature has exceeded its powers or come in conflict with any constitutional restriction. This Court has held that the Legislature, in exercising its appropriate law making functions, may determine what is a county purpose within the meaning of Section 5, Art. 9, of the Constitution, and the courts are not authorized to render such legislation ineffectual, unless some other provision of the Constitution is violated, or unless the particular enactment can have no practical or legal relation whatever to any county purpose. * * * If the state has the power to establish and operate a state agricultural department, or provide for a commissioner of agriculture, it would appear that it might also, by proper legislation, authorize a county, a political subdivision and agency of the state, to promote the local agricultural interests of the county by acquiring the property and constructing the buildings necessary to the conduct of free public county fairs in the particular county." (Italics supplied). Senate Bill No. 910 does not direct for what purpose the said sum of $6,000.00 shall be used, but merely requires the County Commissioners to pay it over to the Board of Trustees of the Volusia County Fair. Senate Bill No. 911 declares that the purchasing and taking over of the property of Volusia County Fair Association, Inc., the promoting, maintaining and carrying on annually of a Fair or Exposition in the county, and the levying of a tax by the County Commissioners in order to carry out the provisions of the act, "are all for a valid County purpose." While the constitution provides that the powers and duties of county commissioners are prescribed by law (article 8, section 5, Constitution of Florida), this particular mandate of the Constitution is not violated by the provisions of said bill, that makes it the duty of the Board of Trustees of the Volusia County Fair, to make and submit to the Board of County Commissioners an amount of money necessary to be raised for the purpose of carrying out the provisions of the act, and give to the Board of Trustees of Volusia County Fair, the supervision and control of "all moneys that may be raised by the tax" as therein provided. County Commissioners have only such authority as is conferred by statute (Baden v. Ricker, 70 Fla. 154, 69 So. 694; Stephens vs. Fulch, 73 Fla. 708, 74 So. 805), and administrative duties pertaining to the affairs of a County may be conferred by law upon officers other than the County Commissioners (State ex rel. Buford vs. Daniel, supra). The power of the Legislature to pass laws creating County Officers, other than those provided for in the constitution, is "absolute unless restrained by some constitutional provision." (State ex rel. Bryan, 50 Fla. 293, 376, 39 So. 929). "All persons by authority of law instrusted with the receipt of public money, or through whose hands such money may pass to the treasury, are 'public officers', whether the service be general or special, transient or permanent." "Section 27, article 3 of the State Constitution means that when not otherwise provided in the Constitution the executive and administrative governmental functions of the state and counties shall be performed by officers who shall be elected by the people or appointed by the Governor, and that the duties and compensation of such officers shall be fixed by law. Section 7, article 8, requires that such county officers shall be commissioned by the Governor, and that before being commissioned they shall file with the

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secretary of state a bond to be approved by the county commissioners and by the comptroller, Section 14, article 4, provides that all commissions shall be in the name and under the authority of the state of Florida, sealed with the great seal of the state, signed by the Governor and countersigned by the secretary of state. Section 2, article 16, requires every officer to take the prescribed oath. Section 7, article 16, provides that the Legislature shall not create any office, the term of which shall be longer than four years." Dade County vs. State, 95 Fla. 465, 116 So. 72, 76. We are impelled to the conclusion that the lower court committed no error in granting the order temporarily restraining the Board of Trustees of Volusia County Fair from issuing any note under color of Senate Bill No. 911, for the sum of $83,000.00, or any other sum of money in the name of Volusia County, for the purchase of any property or other assets of Volusia County Fair Association, Inc., or otherwise pledging or obligating the said County to any extent whatever. Since no one other than the Board of Trustees of Volusia County Fair is authorized to perform the duties attempted to be conferred by the said Senate Bill No. 911 upon the said Board of Trustees, and the expressed purpose of the levy of the ad valorem tax is to carry out the provisions of the act, and such provisions as we have seen cannot be carried out because said Board of Trustees are powerless to act for the county, it follows that the levying of the annual tax on all taxable real and personal property in the county should not be made. We hold therefore, that the lower court did not err in granting an order temporarily restraining the members of the Board of County Commissioners from levying an ad valorem tax for the purpose of carrying out the provisions of Senate Bill No. 911. We will now take up the appeal of the complainant from the order denying a preliminary injunction upon the first application, and (2) from the order dissolving the temporary injunction granted by Judge Albritton. In view of the fact that we have upheld the order granting the injunction upon the second application, we deem it unnecessary to discuss the propriety of the Court's action upon the first application of complainant for such injunction. If error was committed in denying the application when first made, it was corrected when the order for the injunction was made upon the second application therefor. When the order dissolving the injunction was made, an appeal had been entered by the County Commissioners, and the Clerk, for themselves and for their co-defendants. This notice and entry of appeal having been filed and duly recorded as required by law (Sec. 4904 (2172) Compiled General Laws of Florida, 1927) it gave to the appellate court jurisdiction of the cause and also of the appellants and appellee. Stovall vs. Stovall, 77 Fla. 116, 80 So. 744. The defendants, who voluntarily appealed, had the right to join their co-defendants, who were also affected by the order, as parties appellant. (Rabinowitz vs. Houk, Fla. , 129 So. 501, Hay vs. Isletts, 98 Fla. 1026, 125 So. 237; Guaranty T. & T. Co. vs. Thompson, 89 Fla. 35, 103 So. 110.) It is a general rule that when an appeal is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone. The authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject matter of the appeal, until the appeal is heard and determined. 3 C.J. 1252, 1255; 2 Enc. P. & Pr. 332. See also Holland vs. State, 15 Fla. 549. Furthermore, where the defendants are so corrected that the rights of one cannot be determined without affecting the rights of the others, and an appeal is lawfully taken by one defendant, the trial court pending the appeal, cannot take any steps in the case. 3 C.J. 1261; 2 Enc. Pl. & Pr. 334. This court has said that "When jurisdiction of appellate court attaches, it is exclusive as to subject covered by appeal." Wiley v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126. By applying the rule just stated to this case, the lower court was without authority to make the order dissolving the injunction at the time it was made, and for that reason the said order should be and the same is hereby reversed. A supersedeas is not essential to the acquisition of or to preservation of appellate jurisdiction. Wiley v. W. J. Hoggson Corporation, supra. Per Curiam. -- A majority of this Court are of the opinion that so many vital and controlling provisions of Senate Bill No. 911, Acts of the Legislature, Session of 1931, being Chapter 15560, of the 1931 Special Laws, are unconstitutional that by reason thereof the whole Act is unconstitutional and inoperative, it being impossible for the Court to say that with the plainly unconstitutional provisions eliminated from Senate Bill No. 911 (Chapter 15560) entitled: "An Act Creating a Board of Trustees of the Volusia County Fair, in Volusia County, Florida, and requiring said Board of Trustees to acquire, purchase and take over in the name of Volusia County, all property of the Volusia County Fair Association, Inc., and to promote, maintain and carry on annually a fair or exposition in said County, and investing said Board of Trustees with other powers and duties for the carrying out of the provisions of said Act, and requiring the Board of County Commissioners of Volusia County, Florida, to levy a tax sufficient to raise the necessary funds to carry out the provisions of said Act, said tax not to exceed One Mill on the Dollar, and giving the said Board of Trustees the entire control of such fair or exposition and all matters connected therewith and all property that may be acquired under said Act and all Funds derived from said tax or any other sources," that said Bill would have been enacted at all. Therefore that Act falls in its entirely. Senate Bill No. 910 (Chapter 15557), entitled: "An Act requiring the board of County Commissioners of Volusia County, Florida, to Pay Over to the Board of Trustees of the Volusia County Fair, the sum of Six Thousand Dollars ($6,000.00), which was appropriated to the Volusia County Fair Association, by the Board of County Commissioners of said County, in the budget for said County for the fiscal year beginning, on the 1st day of October, A.D. 1930, and to end on the 30th day of September, A.D. 1931,"

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is in pari materia with Senate Bill No. 911, and if Senate Bill No. 911 is wholly void, the legislative purpose and intent designed by Senate Bill No. 910 cannot be accomplished, so that Act must likewise be held insufficient as a basis for any action or payment of money by the County Commissioners of Volusia County, such as was sought to be enjoined in this case. Since the principal object of the bill of complaint is to declare unconstitutional and void the aforesaid Acts of the Legislature of 1931, and relief so adjudging them void and unconstitutional is sufficiently sustained by the bill, the injunctions granted should be affirmed insofar as they enjoin and restrain acts of the County Commissioners of Volusia County under the two 1931 enactments hereinbefore referred to. The injunctions granted are accordingly limited and modified in effect so as to enjoin and restrain only the threatened acts of the County Commissioners of Volusia County, Florida, specified in the bill of complaint, insofar as such acts are based upon Chapter 1557 and 15560, Acts of 1931, Laws of Florida, as so modified the orders granting injunctions are affirmed. The order of Judge Simmons dissolving the injunction which had been granted by Judge Albritton is reversed. The question of enjoining payments of moneys by the County Commissioners of Volusia County, Florida, under Sections 6516-6526 C.G.L., 4517-4527 R.G.S., Acts of 1927, is not passed on, because neither the validity, construction nor effect of same is prperly involved in the present appeal. Orders granting injunctions limited in effect, and as so modified, affirmed. Order dissolving injunctions reversed. BUFORD, C. J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J. J., concur. WHITFIELD, J. -- Even though under section 6526 (4527) C.G.L. the county commissioners may have duly made an appropriation from county funds to the Volusia County Fair Association for an authorized county purpose, the act designated Senate Bill No. 910, is in the nature of a judicial decree requiring the county commissioners to pay over to the Board of Trustees of the Volusia County Fair, a body proposed to be created by an act of the Florida Legislature, out of the proceeds of the taxes collected and to be collected in said county for the year 1930, the sum of $6,000.00 that was appropriated to the Volusia County Fair Association, by the Board of County Commissioners in the budget for the fiscal year ending September 30, 1931. The legislature cannot exercise judicial junctions. A legislative command in the nature of a judicial decree that county funds which have been appropriated for payment to a specific payee shall be paid to a different payee, without anything in the act to show the right of the new payee or that the payment required to be made is for a lawful county purpose, is not contemplated by the constitution. It is alleged that the appropriation is not made for a public purose but violates sections 7 and 10, Article IX, Constitution. If it be assumed that the act may be shown to be valid by reference to the statute designated as Senate Bill No. 911, that act violates section 25, Article III, constitution, in that though it may have reference to a county purpose, Earle v. Dale Co., 92 Fla. 432, 109 So. 331, yet it is a special law, not creating an agency for governmental purposes, but incorporating a "useful" company or association with corporate powers, when the organic section forbids the legislature to "pass any special law on any such subject, and any such special law shall be of no effect," with exceptions no material here. The provision in the special act requiring the Board of Trustees of the Volusia County Fair to acquire, purchase and take over in the name of Volusia County, property owned by the Volusia County Fair Association, Inc., and other provisions, do not make th Board of Trustees created by the special act an agency for governmental purposes. In State ex rel. v. Daniel, 87 Fla. 270, 99 So. 804, the act was a general law and created an agency for governmental purposes. It is not necessary to consider whether section 20, Article III, or sections 7 and 10, Article IX, constitution, are also violated. BUFORD, C. J., AND ELLIS, TERRELL, BROWN AND DAVIS, J. J., concur. BROWN, J., (Concurring specially): -- It appears that the conducting of a County Fair in Volusia County constitutes a purely local and county purpose, and this being true, the legislature has no authority under the constitution to require or compel the county to assess and impose ad valoren taxes for such a purpose. The legislature may authorize the county to do so, but it cannot compel or require it. Sec. 5 of Art. IX of the constitution provides that the legislature shall "authorize" the several counties to assess and impose taxes for county purposes. This, we have held, refers to ad valorem taxes.There is a vast difference between authorizing a county to impose taxes for an exclusively local purpose and compelling it to do so. The former recognizes that the county should have some voice in purely county affairs whereas the latter would make possible the centralization of authority over all the local affairs of the counties in the State government, thus tending to build up a centralized and bureaucratic form of government, which, to my mind, is contrary to the system established by our constitution. This question was very ably discussed and the previous decisions of this court thereon reviewed, by this court, speaking through MR. JUSTICE STRUM, in the case of Amos v. Mathews, 99 Fla. 1, 126 So. 308. A few extracts from the opinion in that case read as follows: "But the existence of local county officers as a part of our form of government, and for the performance of purely local functions, is clearly recognized by the Constitution, altough the legislature possesses powers of the broadest possible nature consistent with the constitutional existence of those officers, in determining the extent of their local powers and duties. Therefore, while the legislature may shape local institutions and regulate the frame work of local government with reference to local powers, it can not abrogate these constitutionally recognized institutions and take to itself the complete and direct exercise of local functions in matters of purely local concern." "It is contended in this case that a county is a mere arm or agency of the State -- that it is merely 'the State Acting locally.' The foregoing resume of our constitutional system negatives this theory so far as the administration of purely local affairs is concerned. It is true that a county is an agency of the State, having no inherent power, but deriving its powers wholly from the sovereign State. It is also true, to paraphrase the language of one of the briefs herein, that the principle of local self-government does not

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constitute each county 'an independent sovereignty, managed by a board having legal rights.' Nevertheless, their existence as local entities for local purposes as well as their existence as legal political divisions of the State is recognized by the Constitution. The same power which created the legislaure, namely, the sovereign people, recognized the counties. While a county in the performance of certain funcstions is an agency or arm of the State, it is also something more than that. If a county were no more than a mere agent of the State, -- the State acting locally, -- bonds issued by a county by a county would in effect constitute State bonds, and therefore by virtue of Sec. 6 of Art. IX of the Constitution would be void ab initio. While the county is an agency of the State, it is also, under our Constitution, to some extent at least, an autonomous, self-governing political entity with respect to exclusively local affairs, in the performance of which functions it is distinguished from its creator, the State, and for its acts and obligations when acting in purely local matters the State is not responsible. This, as we have seen, must be conceded in order to sustain the validity of county bonds." * * *. "When the language of Section 2 and 5 Art. IX is contrasted, however, and is considered in the light of our institutions of government and in the light of the construction placed upon what is now Sec. 2 of Art. IX in Cheney v. Jones, supra, it is our judgment that the framers of the Constitution intended to and did withhold from the legislature the power to directly levy, or to compel a county to levy, a local county ad valorem tax for an exclusively local purpose as already defined herein. Local administration of exclusively local affairs, that is, affairs in which the State has no sovereign interest as such, is undoubtedly contemplated by our Constitution. To withhold the co-ordinate power of local determination as to taxation in matters of exclusively local concern, would leave little of local government. See Cooley, Taxation (4th ed.), Sec. 416; et seq; Jackson Lbr. Co. v. Walton County, 116 So. 771; People v. Mayor, etc., 51 Ill. 17; Pope v. Phifer, 3 Heisk. (Tenn.) 682, 700; Morgan v. Schussells, 81 N.E. 814; People v. Common Council of Detroit, 28 Mich. 366; People v. Village of Pelham, 109 N.E. 513; State v. Omaha, 200 N.W. 871; 46 A.L.R. 602, 610; Cooley Const. Lim. (7th ed.) p. 337." It may be as contended by Commissioner Davis, that the legislation here under review comes in conflict with Secs. 7 and 10 of Art. 9 and Sec. 20 of Art. 3 of the Constitution, but I am inclined to base my concurrence in the conclusions reached by Commissioner Davis upon the compulsory features of the legislation, in respect to matters which under the constitution the legislature may only authorize, and not require, a county to do. I am also inclined to agree with Justice DAVIS that under section 6526 C.G.L. the County Commissioners were authorized to appropriate $6,000.00 to the Volusia County Fair Association, Inc. for the fiscal year beginning Oct. 1, 1930, but I doubt the validity of the act compelling them to pay this appropriation to the "Trustees of the Volusia County Fair." The tax was not levied for that specific purpose. And, for the reasons above set forth, I am inclined to think the act creating the "Board of Trustees of the Volusia County Fair" is itself unconstitutional. DAVIS, J., concurs. DAVIS, J., concurring with WHITFIELD, J.: -- I concur with the view expressed by MR. JUSTICE WHITFIELD that Senate Bill No. 910, which became Chapter 15557, Acts of 1931, is in the nature of a judicial decree requiring the County Commissioners to pay over to the Board of Trustees of the Volusia County Fair, a body proposed to be created by an Act of the Florida Legislature, the sum of $6,000.00 that was appropriated to the Volusia County Fair Association by the Board of County Commissioners in the budget for the fiscal year ending September 30, 1931, and that such legislative command being in the nature of a judicial decree that County funds which have been appropriated to a specific payee shall be paid to a different payee is not contemplated by the constitution. I therefore acquiesce in the holding that Chapter 15557, Acts of 1931, insofar as it operates as a mandatory requirement on the Board of County Commissioners of Volusia County is unconstitutional, and that payments as commanded by the 1931 Act should be enjoined insofar as the 1931 Act seeks to coerce such payments by legislative fiat. I also concur in the view that Chapter 15560, Acts of 1931, is unconstitutional for the reasons pointed out in the opinion by MR. COMMISSIONER DAVIS and in the concurring opinion of MR. JUSTICE WHITFIELD. The bill of complaint shows that an appropriation was made of the sum of $6,000.00 to the Volusia County Fair Association, Inc., by the Board of County Commissioners of Volusia County for the fiscal year beginning October 1, 1930, and ending September 30, 1931. Such appropriation was specifically authorized by Section 6526 C.G.L., 4527 R.G.S., which provides that "Board of County Commissioners of the various counties of the State of Florida, are authorized to expend in their discretion such sums as they deem for the best interests of their counties and in aiding the development of the agricultural, horticultural and livestock resources of their counties and in giving publicity to the advantages, facilities and agricultural, horticultural and livestock possibilities and production of their counties by providing for, aiding and assisting the exhibition and demonstration of such resources at and in connection with such fairs and expositions, including the offering and paying of premiums for such exhibition of resources of their respective counties. This Section is a part of Chapter 7388, Acts of 1917, which has been unquestioned as to its validity for fourteen years. The object of the 1931 Act was simply to amend this already "fixed appropriation" which had been validly made, by providing that it should be paid, -- not to the Volusia County Fair Association, Inc., a voluntary corporation which has existed in Volusia County for many years, but to the new body also created in 1931 known as the Board of Trustees of Volusia County Fair. If such change gives any one the right to complain, it is not a taxpayer of Volusia County, but is the Volusia County Fair Association, Inc., whose "fixed appropriation" has thus been diverted to another separate and distinct body. In fact, the real complaint against the payment of this $6,000.00 which is a "fixed appropriation" to the Volusia County Fair Association, Inc., seems to be that Chapter 7388, Acts of 1917 (Sections 6516 to 6528, C.G.L.), is unconstitutional, -- particularly as to Section 6526 C.G.L., 4527 R.G.S., which authorizes county commissioners to appropriate moneys of the county fair associations to aid in the development of the agricultural and livestock resources of the several counties, by means of the publicity which is afforded through these fairs.

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4/21/2010

FindACase™ | BEN D. THURSBY v. ISA…

I am unable to see where we can declare such purposes as those set out in Section 6526 C.G.L., supra, not proper county purposes in view of the Legislature's specific declaration that they are a valid purpose for which the county commissioners of a county may appropriate money. If there was any doubt on this score it has been removed by the holding of this court in Earle v. Dade County, 92 Fla. 432, 109 Sou. Rep. 331, where the court said that the use of taxation by a county to develop and advertise the agricultural, horticultural and livestock advantages of a county through county fairs and expositions was a proper county purpose. Publicity is perhaps the most powerful influence which exists in our modern life. So great is its value that over a billion dollars a year is spent for it by the people of the United States. Holding a fair of exposition to exhibit the county's resources is one way of taking advantage of this powerful influence of publicity, and the word "publicity" is expressly used in the law when referring to the purpose for which these appropriations of money are authorized. Publicity with reference to advantages and facilities of a community is now generally recognized in all enlightened communities as being a public purpose, for which tax money can be spent when authorized by appropriate legislation, where the expenditures made for it remain within the control of the public authorities and are not delegated to private agencies. Here the Board of County Commissioners in September, 1930, determined that the publicity of the advantages of Volusia County through the medium of a fair or exposition would be worth at least $6,000.00 to the County, and they put that much in the budget to be used for that purpose. This was appropriated to be paid over to the Volusia County Fair Association, Inc., as a consideration for the publicity and other advantages which the county would receive through the medium of the Volusia County Fair Association's activities in holding a fair or exposition during that fiscal year. Unless we are going to declare the 1917 statute unconstitutional, as well as the 1931 statute unconstitutional, there is no ground to enjoin and prohibit the County Commissioners from paying out this money which they deliberately appropriated under express authority of the 1917 statute, and in consideration of which Volusia County Fair Association, Inc., evidently has incurred expenses and rendered services to the County which justly entitle that Association, if not its 1931 successor, to receive these appropriated funds. BROWN, J., concurs. 19311223 © 1998 VersusLaw Inc.
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