The State of Florida ex rel. W. B. Lamar, Attorney General, Plaintiff in Error vs. Benjamin F. Dillon, et al., Defendants in Error, 42 Fla. 95

Per. Curiam (After stating the facts) : I. The third

section of

Article III of the charter act of the municipality of Jacksonville (Chapter 3775, laws 1887) empowered the mayor and city council to create such offices and to provide by ordinance for the appointment or election of all such officers as might be necessary for the good government of the city, not in conflict or interfering with the duties of officers and appointees in that act provided for whose compensation and terms of service were required to be fixed before their election. The mayor and city council were also' empowered by said

section to abolish at any time any office created' by them. The charter act in terms provided for various officers and boards therein named, but the board of trustees named in the information was not created thereby nor mentioned therein. By the first

section of the act of 1893,

Chapter 4301, the municipal officers of the city of Jacksonville were declared to be a mayor, city council, a board of public works, a board of police commissioners, a comptroller, treasurer, recorder, füdge of the municipal court, marshal and such other officers as might be provided by ordinance. The second

section provided for the election by the qualified electors of the city of the mayor, comptroller, treasurer, and city council, and required the members of the board of public works, police commissioners, judge of the municipal court, recorder and all other officers of the city to be elected by the city council. It provided that all city officers should hold office for the term of two years and until their successors were elected, unless sooner removed in the manner therein provided.

It fixed the terms of all officers elected by the electors as beginning at noon of the third day after the day of election, and the terms of all officers elected by the city council as beginning at noon of the first day after the organization of each newly elected city council. The fifteenth

section of this act provided that the number, powers, duties and terms of office of all the city boards and city officers, excepting only the powers and duties of the city council, might be amended and changed at any time, by an ordinance first passed by the affirmative vote of not less than three-fifths of all the members of the city council approved by the mayor or passed over his veto and subsequently approved by the affirmative vote of a majority of the votes cast by the qualified electors of the city at an election.

The act did not create or mention the board of trustees of the waterworks and improvement Dpnds, nor is there anything in the record to show that such a board had ever been created by ordinance prior to- the passage of that act. The ordinance set out in the information was passed in 1894, after the enactment of

Chapter 4301, and one of the principal contentions in the case on the part of plaintiff in error is that said ordinance Creates the office of the board of trustees of the waterworks .and improvement bonds of the city of Jacksonville, and that it is void because it undertakes to create an office the term of which is therein fixed at nine years, in violation of

section 7,

Article XVI of the constitution of 1885, which provides that “the legislature shall not create any office the term of which shall be longer than four years.” Under the view we take of this case, it does not become necessary for us to determine whether this clause of the constitution has any application to the creation of municipal offices. The fifteenth

section of

Chapter 4301, laws of 1893, authorizing the amendment and change of the numbers, powers, duties and terms of office of all city officers and boards (excepting- the powers and duties of the city council) extended only to such officers and boards as had been created or recognized by legislative enactment, and not to such offices as may have been created by the mayor and city council.

The office of the board of trustees of the waterworks and improvement bonds had not prior to the pasage of the ordinance in question been created or recognized by any act of the legislature, nor had the mayor and city council, so far as disclosed by the record, created or attempted to' create such an office.

Inasmuch as the ordinance creating- the board, passed in 1894, undertook to transfer to it a part of the duties assigned by statute to the board of public works, it was properly passed in the manner pointed out in the fifteenth section, but the ordinance does not pretend to amend or change the terms of office of any office of the city created or recognized by the legislature. It does, however, create the board of trustees of the waterworks and improvement bonds and undertake to fix their'terms of office at nine years, but the second

section of the act (Chap. 4301) definitely fixed the terms of all city officers at two years, which in our judgment embraced all the officers of the city, including those created by the mayor and city council except where the terms of office of some office created or recognized by the legislature was amended or changed in the manner pointed out in the fifteenth section, which, as we have seen, is not the case here.

From what has been said, it is quite apparent that as to this particular office the legislature has neither created, nor authorized the city to create, the office in question with a term exceeding four years, so that it cannot be said that the constitutional provision insisted upon has been violated by the legislature, even if it applies to municipal offices.

The attempt on the part of the city to make the term of office nine years is in conflict with the statute fixing the term at two years, and so much of the ordinance as attempts to fix the term at nine years is void, but we do' not think this renders the entire ordinance invalid.

The constitutional provision invoked, if applicable to municipal offices, is a limitation upon the power of the legislature, forbidding it to create, or to authorize the municipality to create a municipal office the term of which shall be longer than four years, but its language is not addressed to municipalities, nor has the legislature addressed any such language to- the city of Jacksonville in reference to offices to be created by the mayor and city council.

That portion of the ordinance fixing the term of office at nine years is void because it is in conflict with the statute, which fixed the term at two years, and under these circumstances the rule applied by the Supreme Court of Indiana, in Indianapolis Brewing Co. v. Claypool, 149 Ind. 193, 48 N. E. Rep. 228, cited by plaintiff in error, upon its construction of a constitutional provision similar toi the one we have quoted from ours, has no' application, even if it is a proper one to follow in cases like the one there under consideration.

On the contrary, we think the rule applied by the Supreme Court of California in the case of People ex rel. Davidson v. Perry, 79 Cal. 105, 21 Pac. Rep. 423, is the proper one for us to follow in the present case, and that the invalid provision fixing the terms of office at nine years may be rejected without affecting the validity of the other provisions of the ordinance, the officers named in the ordinance holding for the terms fixed by statute. The act of 1895,

Chapter 4498, passed subsequent to the ordinance in question, repeals

Chapter 4301, laws of 1893, but it contains a provision that nothing therein should interfere with or invalidate the municipal government of the city of Jacksonville as it then existed, the officers of which, it was declared, were to continue in office until their successors were elected and qualified under the provisions of that act, with an exception not affecting the question under consideration.

It also contains provisions fixing the terms of all officers at two years, and until their succesors are elected and qualified, unless removed in the manner therein provided, and designates the manner of the selection of all officers of the city, and the time when their respective terms shall begin, as'did the act of 1893. This disposes of the only question argued upon this branch of the case. II. The first and second sections of

Chapter 4872, laws of 1899, read as follows:

Section 1. From and after the passage and approval by the Governor of this act, the board of election commissioners of the city of Jacksonville as now existing shall be abolished. The board of bond trustees of the city of Jacksonville shall have exclusive power to appoint, subject to approval by the affirmative vote of two-thirds of the members of the city council, all officers not elected by the electors and all members of the police force; provided, that officers properly belonging to the department of the board of public works shall be elected by the board of public works.

Three persons selected by the board of bond trustees from among the members of the said board shall be designated to perform all the duties of election commissioners in all matters relating to municipal elections. The organization, number and compensation of members of the police force and fire department shall be regulated and controlled by the board of bond trustees.

The city council may, by ordinance, establish general provisions ancl requirements, which shall be followed by the mayor in the control, suspension and removal of members of the police force, designating the causes for and grounds upon which members of the police force may, upon specific charges, be removed from office, and providing for the trial of such charges before the board of bond trustees; and after the publication of such ordinance no member of the police force who- has served one year or more shall be removed from office except under and in pursuance of the provisions of such ordinance.

The board of trustees of the waterworks and improvements bonds shall each year immediately after the election of a new member of said board of bond trustees reorganize said board by the election of a chairman and secretary and other officers. No person not a qualified elector of the city of Jacksonville shall be eligible to election to any office under the city government or appointment upon the police force. Sec. 2.

The board of bond' trustees shall have charge, management and control of the electric light plant, in addition to their present powers and duties, and from time to time fix the compensation of all employes or officers of the departments under its control, and fix the charge for water and electricity, and shall require the payment to said board from each of the departments of the city government of the reasonable value of the water and electricity used by them, based upon the prices usually paid by municipalities for water and electricity to persons or corporations furnishing the same; and all surplus revenues accruing after the most economical management of said system shall be applied semi-annually towards the payment of interest and sinking fund on account of the waterworks and improvement bonds of the city, and an itemised statements of the receipts and expenditures of each of said departments shall be made and published in a newspaper of 'general circulation on the tenth days of January, April, July and October of each year, for the quarter ending on the last day of the months next preceding said months.

The other sections of the act have no bearing upon the questions involved in this case. It is contended that this act is unconstitutional and void upon the grounds stated in the information. 1. As to the first objection of the act, it is sufficient to say that the board of bond trustees has a legal existence as has been shown in the preceding portion of this opinion, and it is not denied that if such board exists it can perform the duties and powers imposed upon them 'by the statute. 2.

The argument upon the second objection is that the act confers power upon the board of bond trustees to appoint themseUes as their own succesors in office subject to approval of the city council, thereby making them a self-perpetuating body. It is not alleged in the information that they have ever claimed or exercised the power to supply vacancies in their own body; neither is it denied that the power given them to appoint other officers subject to the approval of the city council is valid.

In the absence of a specific allegation that the respondents are assuming the right to appoint themselves as their own successors, the court is not required to enter into an investigation as to their powers to do so, even if this be the proper remedy for testing the right to exercise such power. 3. As to the third objection, the act does not attempt to create the board of trustees of the waterworks and improvement bonds, or to fix their terms of office, or to extend their terms of office as members of said board.

In the clause directing them each year immediately after the election of a new member to reorganize the board, it is fair to say that the legislature did not deny the validity of the provisions of the ordinance fixing the terms at nine years, and that it is impliedly assumed in such clause that the terms of office of the members of the board would expire in accordance with the provisions of the ordinance.

That provision might be eliminated without affecting the other provisions of the act, but we do not pass upon its validity, as we feel sure that clause was never intended to- validate any invalid portion of the ordinance or to extend the terms of office of the members of the board, or to fix any terms for them, but merely to require the rer organization of the board immediately after the election of a new member theréof. 4th. As to the fourth ground, it is difficult to see how the bill could have been read in full on its final passage without at the same time being read by sections.

We think this objection without merit. State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767. 5th. Sections 14 and 17,

Article III, constitution of 1885, read as follows: “Sec. Í4. Any bill may originate in either house of the legislature, and after being passed in one house, may be amended in the other.” “Sec. 17. Every bill shall be read by its title on its first reading in either house, unless one-third of the members, present desire it read by sections. Every bill shall be read on three several days unless two-thirds of the members present when such bill may be pending shall deem it expedient to dispense with this rule.

Every bill shall be read by its sections on its second reading and on its final passage, unless on its second reading two-third of the members present in the house where such bill may be pending shall deem it expedient to dispense with this rule. The vote on the final passage of every bill or joint resolution shall be taken by yeas and nays and to be entered on the journal of each house; provided, that any general revision of the entire laws embodied in any bill shall not be required to be read by sections upon its final passage and its reading may be wholly dispensed with by a two-third vote.

A majority of members present in each house shall be necessary to pass every bill or joint resolution, all bills or joint resolutions so. passed shall be signed by the presiding officer of the respective houses, and by the secretary of the Senate and the clerk of the House of Representatives.” There are differences of opinion among the courts as to what constitutes the “final passage” of a bill, within the meaning of constitutional provisions relating to the’vote on the final passage of bills being taken by yeas and nays and entered upon the journals of the legislature.

Cases have been cited to us holding that the “final passage” meant is the vote in each house which adopts the bill as it is afterwards enrolled and presented to the Governor for his signature.

The provision which we have quoted from our constitution speaks of the first and second reading and final passage of the bill, and it seems to us from the connection in which they are used that the words “final passage” in our constitution can legitimately refer to nothing else than the vote in each house which adopts the bill after it has passed its first and second readings, and after it has been read again for the purpose of being-put upon its passage. No. doubt after passing one house it may be very materially amended in the other and there passed as amended.

The constitution expressly recognizes this fact and authorizes it to be done, but it does not require such bill as amended to. be read three times in the house originating the bill before concurring in the amendments proposed by the other (State ex rel. Turner v. Hocker, 36 Fla., 358, 18 South. Rep. 767), nor does it require the vote on the adoption of the amendments to be taken by yeas and nays and entered on the journal.

The clause quoted was framed in view of parliamentary practice as is evident from the use of the terms first and sc "ond reading's and final passage, and its object was to regulate the number of readings to which the bill should be subjected in each house and to require the vote to be taken by'yeas and nays and entered upon the journals upon the passage of the bill after such readings. Such has been the legislative construction of the provision in question for many years and we are satisfied that construction is correct.

This disposes of all the material questions presented, and results in the affirmance of the judgment. The judgment is affirmed.