art. v, art. v, · art. v, § 18 judicial department art. v, 20 where statute requires judgment to...

Art. V, § 18 JUDICIAL DEPARTMENT Art. v, § 20

Where statute requires judgment to be entered for double damages found to be due, the double damages constitute the demand of damages claimed, and the county judge has judicial power to adjudicate and enter judgment for such demand or damages claimed only when they shall not exceed the jurisdictional amount of one hundred dollars. Louisville, etc., R. Co. v. Sutton, 54 Fla. 247, 44 So. 946.

Judgment in excess of jurisdictional amount is void. Louisville, etc., R. Co. v. Sutton, 54 Fla. 247, 44 So. 946; Seaboard Air Line Railway v. Ray, 52 Fla. 634, 42 So. 714.

III. PROBATE JURISDICTION.

A county judge has jurisdiction in probate matters, but not in chancery. Mott v. First Nat. Bank, 98 Fla. 444, 124 So. 36; State v. Edmunds, 114 Fla. 443, 447, 153 So. 850.

Under this section the county judge has general power to grant letters of admini stration. Bowden v. Jacksonville Elec. Co., 51 Fla. 152, 41 So. 400.

Statutes may confer upon county judges jurisdiction of the establishment of lost or destroyed wills. Pournelle v. Baxter, 142 Fla. 517, 523, 195 So. 163 .

The general jurisdiction of a county judge over a will offered for probate, g ranted by this section, is not divested by the filin g of a caveat. Street v. Crosthwait, 136 F la. 327, 329 , 186 So. 516.

Given by this section.-The effect of this section was to strip the county courts of probate power and vest it, subj ect to the provisions of § 11, of this Article in the county judges. Crosby v. Burleson, 142 Fla. 443, 454, 195 So. 202.

The county judge exercises general jurisdiction within a limited and defined sphere, with respect to probate powers under this section, but jurisdiction so exercised is not that of court of general jurisdiction according to course of common law. Mott v. First Nat. Bank, 98 Fla. 444, 124 So. 36.

But his jurisdiction is not exclusive over the settlement of the estates of decedents, etc. State v. Horne, 86 Fla. 309, 311, 98 So. 330.

§ 18 HISTORY.

Original section of Constitution 1885.

ANNOTATION. Jurisdictional amount.-!£ either the demand or

the value of specific property sought to be recovered does not exceed $500.00 the county court has jurisdiction. Goldstein v. Miami Wrecking, etc., Co. , 103 Fla. 149, 151, 137 So. 283.

Suspension of jurisdiction of county judge.When under the provisions of this section a county court is established in any county, the jurisdiction of the county judge as such is at once suspended in all those cases jurisdiction over which is placed in said county court, and remains so suspended so long as the legislature shall see proper to continue such county court in existence in such county. State v. Philips, 64 Fla. 105, 59 So. 241.

In particular counties.-As to county court for Polk County, see Ex parte Pitts, :! 5 Fla. 149, 17 So. 76. As to judicial notice that county court

has been established in Duval county, see State v. Philips, 64 Fla. 105, 59 So. 241.

Applied in In re Petition of D' Allesandro, 106 Fla. 673, 143 So. 660; State v. Ward, 135 Fla. 885, 185 So. 846.

Cited in Blackwell v. State, 79 Fla. 709, 749, 86 So. 224, 15 A. L. R. 465 (dis. op.); Ex parte Harris, 81 Fla. 797, 798, 89 So. 127; American Ry. Exp. Co. v. Weatherford, 84 Fla. 264, 270. 93 So. 740 (con. op.); Burkhart v. Gowin, 86 Fla. 376, 381, 98 So. 140; Frazier v. State, 87 Fla. 235, 100 So. 155; Tyson v. State, 87 Fla. 392, 403, 100 So. 254 (dis. op.); State v. Sullivan, 95 Fla. 191, 116 So. 255; Ex parte Bienville Inv. Co., 102 Fla. 1>2,1, 528, 136 So. 328; Dodd Lbr., etc., Co. v. Krusen Land, etc., Co., 105 Fla. 106, 141 So. 117: State v. McCall, 107 Fla. 564, 145 So. 841; Barber v. Smith, 139 Fla. 167, 171, HlO So .. 438; Gray v. Callahan, 143 Fla. 673, 685, 197 So. 396.

§ 19 HISTORY.


ANNOTATION. The authority of a judge ad litem is judicial un

der this section, and such judge ad litem is not merely an expert aid to the court in ascertaining facts or in maturing causes for judicial determi· nation by the court. Whe~ler v. Ridge Country Holding Co., 98 Fla. 999, 124 So. 457.

The provisions authorizing a judge ad litem and a referee to adjudicate causes are wholly different, being intended to operate under quite different conditions; and where a circuit judge appoints a "judge ad litem" who acts as such, and not as a referee, such appointment as made being unauthorized, cannot be regarded as the appointment of a referee, and the judicial acts of the appointee performed as ''judge ad litem" cannot be regarded as the judicial acts of a referee. Wheeler v. Ridge Country Holding Co., 98 Fla. 999, 124 So. 457.

Consent of parties necessary to transfer of cause.-The constitution forbids the transfer ot a civil case at law from one court to another for trial except upon consent of the parties to the action, and it shall not be tried before a judge ad litem or referee without such consent. State v. Walker, 25 Fla. 561, 6 So. 169; State v. Wills. 7;'i Fla. 553, 78 So. 603; Sommers v. Apalachicola Northern R . Co., 85 Fla. 9, 14, 96 So. 151.

Statute relating to substitution of judges (Fla. Stats., 1941, § 38.11) held not to contravene the provisions of this section. Simonton v. State, 44 Fla. 289, 31 So. 821.

Applied in United States Fidelity, etc., Co. v. Tucker, 118 Fla. 430, 159 So. 787.

Cited in Cathcart v. Thompon, 77 Fla. 153, 155, 81 So. 410; Frazier v. State. 87 Fla. 235, 100 So. 155; State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; Dodd Lbr., etc., Co. v. Krusen Land, etc .. Co., 105 Fla. 196, 141 So. 117.

§ 20 HISTORY.


ANNOTATION. Cross references.-See Fla. Stats., 1941, §§

[ 1151 ]

~rt. V, § 21 CONSTITUTION OF THE STATE OF FLORIDA Art. V, § 24

56.01-56.07 and annotations thereto. See also, annotation to § 19 of this article.

The authority of a referee is judicial under this section and such referee is not merely an expert aid to the court in ascertaining fa cts or in maturing causes for judicial determination by the court. Wheeler v. Ridge Country Holding Co., 98 Fla. 999, 124 So. 457.

When appointed by judicial order.--To enable a referee to try a cause the ;udge of the court before whom the cause is pending must affirmatively act by a judicial order involving a judicial discretion. This is the sp irit and meaning of this section. Florida Home Finders v. Miami Sav. Bank, 78 Fla. ·85, 87, 82 So. 621.

And his judgments and decrees are intended to be efficacious and final as judgments and decrees rendered by the circuit judge. Rushing v. Thompson, 20 Fla. 583, 595.

His commission makes him an officer de facto whose titl e cannot be assailed in a collateral proceeding, though th ere may be some irregu larity in his appointment. If the judge has improvidently made the order appointing the referee, the remedy for th e error is in the same court or by appeal. Rushing v. Thompson, 20 Fla. 583, 594.

Act establishing criminal court of record of Polk county does not violate this section. Haddock v. State, 141 Fla .. 132, 146, 192 So. 802.

Cited in Cathcart v. Thompson, 77 Fla. 153, 155, 81 So. 41 0; \Vright v. Worth, 83 Fla. 204, 210, 91 So. 87; Frazier v. State, 87 Fla. 235, 100 So. 155; State v. Sulliyan, 95 Fla. 191, 197, 116 So. 255.

§ 21 HISTORY.


ANNOTATION. Duties of county commissioners as to division

of counties into justice districts cannot be conferred upon other officers by statute. State v. Wheat, 103 Fla. 1, 12, 137 So. 277.

Abolition of office.-U nder this section, where justice of the peace has been elected and qualified to serve in any district, his office cannot be abolished · durin g term for which he has been elected. Conyers v.· State, 98 Fla. 417, 123 So. 817.

Statute requiring county commissioners to divide counties into justice districts and to so ·designate districts as to make as near as practicable the limits of di strict coextensive with limits of one or more election districts (Fla. Stats., 1941. § 37.04) held not in conflic t with this section . Con · yers v·. State, 98 Fla. 417, 123 So. 817.

Applied, as formerly worded, in In re Advisory Opinion to Governor, 15 Fla. 735.

Cited in Frazier v. State, 87 Fla. 235, 100 So. 155; State v. Sullivan, 95 Fla. J 9 l, 116 So. 255: McLeod v. Chase, 95 Fla. 736a, 736f, 116 So. 858 (con. op.): State v. O'Neal, 100 Fla. 1277, 1281, 131 So. 165; State v. Ferrell, 130 Fla. 26, 30, 177 So. 181.

§ 22 HISTORY.

Original section of Constitution 1885: am<:'nded by Joint Resolution 4, Acts of 1895, adopted at general election of 1896.

ANNOTATION. Laws controlling jurisdiction of justicec; of

peace in criminal matters are authorjzed under this section. State v. Ferrell, '30 Fla. ::'o, 31, 177 So. 181.

Jurisdiction not exclusive.-:-This section is not a limitation upon the power of the legislature to confer upon the circuit courts jurisdiction in cases involving a less value than one hund1·crl dollars, s;nce the jurisdiction so C·)n:"erred U<JC' ,l justices of the peace in such cases, though original, is not exclusive. Ferrell v. Reed, 60 Fla. 62, 53 So. 935.

Pr.esumptions in favor of jurisdiction are not indulged as to courts of justices of the peace. Porter v. State, 62 Fla. 79, 56 So. 406.

And a charge of stealing hogs without allegations as to value held not to show jurisdiction of justice of the peace. Porter v. State, fi2 Fla ... 7!1. 56 So. 406.

Circuit courts may hear criminal cases rie novo appealed from final judgments entered by justir~s of the peace. Maxwell v. State, 134 Fla: 13l. 1 :H. 183 So. 723. See Ex parte Morris. 45 FLL 15 7. :11 So. 89.

Statute relating to impounding of live stock running at large in Hillsborough countv held not repugnant to this section. Formby v. Futch, 1 H Fla. 372, 373, 153 So. 913.

Applied in State v. Leon County, 133 Fla. 68, 182 So. 639.

Cited in Haimovitz v. Hector, 79 Fla 28, 8:! So. 666; Blackwell v. State, 79 Fla. 709, 750, R6 So. 224, 15 A. L. R. 465 (dis. op.); Jonas v. Prows, 82 Fla. 131, 89 S. 424; Frazier v. S7ate, H7 Fla. 235, 100 So. 155; Ex parte Sirmans, '14 Fla. 832. 838, 116 So. 282; State v. Sullivan. 95 Fla. 191, 197, 116 So. 255; McLeod v. Chase, :15 Fla. 736a, 736f, 116 So. 858 (con. op.); McCloud v. CiisS<tdy, 104 Fla. 241, 140 So. 217: Osceola County v. State, 115 Fla. 5, 9, 155 So. 119 (dis. op.): State v. Frederick, 124 Fla. 290, 168 So. 252; Gehlbach v. Stone, 131 Fla. 402, 179 So. 893.

§ 23 HISTORY.


ANNOTATION. This section must be read in connection with

§ 30 of this artide and both be given full iorce and effect, if possible. Fountain v. Fountain, 123 Fla. 748, 750, 167 So. 651.

Statute relating to impounding of live stock running at large in Hillsborough county held not repugnant to this section . Formby v. Futch, 114 Fla. 372, 373, 153 So. 913.

Quoted in Williams v. State, 100 Fla. 1567, J 2.; So. 358; Williams v. State, 100 Fla. 1570, 1574, 131 So. 864 (dis. op.).

Cited in State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; Paxon v. State. 122 Fla. 470, 472, 1-65 So. 661.

§ 24 HISTORY.

Original section of Cons titution 1885.

ANNOTATION. The constitution established one criminal court

of record and authorized the legislature to establish others at will. State v. Board of Countv Com'rs, 147 Fla. 278, 282, 3 So. (2d) 360. ·

[ 11 52 l

Art. V, § 25 JUDICIAL DEPARTMENT Art. V, § 28

Act establishing the criminal court of record of Polk county does not violate this section. Haddock v. State, 141 Fla. 132, 146, 192 So. 802.

ln doing so it impliedly vested them with common-law powers of procedure applicable to their jurisdiction as courts of record. Leavitt v. State, 116 Fla. 738, 741, 156 So. 904.

Amendment to § 10 of the Declaration of Rights in no manner conflicts with this and the four following sections. Anderson v. State, 134 Fla. 290, 295, 183 So. 735.

Cited in West v. State, 75 Fla. 342, 368, 78 So. 275; Holland v. State, 83 Fla. 400, 402, 91 So. n9; Sawyer v. State, 94 Fla. 60, 113 So. 736; In re Advisory Opinion to Governor, 94 Fla. 986, 114 So. 889; Segars v. State, 94 Fla. 1128, 115 So. 537; State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; State v. Giblin, 98 Fla. 802, 813, 124 So. 375; State v. Blitch, 100 Fla. 809, 130 So. 444; State v. O'Neal, 100· Fla. 1277·, 131 So. 165; Stearns v. Stearns. 106 Fla. 440, 143 So. 642 ; State v. Collins, 101 Fla. 371, 134 So. 595; Pelaez v. State, 107 Fla. 50, 53, 144 So. 364; Cormack v. Coleman, 120 Fla. 1, 13, 161 So. 844; Fountain v. Fountain, 123 Fla. 748, 167 So. 651; In re Advisory Opinion to Governor, 137 Fla. 298, 188 So. 218.

§ 25 HISTORY.


ANNOTATION. Cross reference.-See ann~tation to § 24 of this

article. The words "jurisdiction of all criminal cases not

capital" as used in this section are not equivalent to "exclusive" jurisdiction in such causes. The word "all" clearly has reference to and limits quantity . of litigation. It does not affect classification or degree of litigation. State v. Sullivan, 95 Fla. 191, 200, 116 So. 255.

The legislature can not take away constitutional jurisdiction of county criminal courts of record to try a ·criminal offense not capital. And an act whose terms purport simply to grant to the circuit court jurisdiction of an offense which such act makes a misdemeanor will not be held as having been intended· to deny to the county criminal court of record their constitutional jurisdiction of stich offense. State v. Butt, 25 Fla. 258, 5 So. 597. . Quoted in State v. Board of County Com'rs, 147 Fla. 278, 281, 3 So. (2d) 360.

Cited in West v. State, 75 Fla. ·342, 368, 78 So. 275; Holland v. State, 83 Fla. 400, 402, 91 So. 379; Sawyer v. State, 94 Fla. 60, 113 So. 736; Segars v. State, 94 Fla. 1128, 115 So. 537; Stearns v. Stearns, 106 Fla. 440, 143 So. 642; Pelaez v. State, 107 Fla. 50, 53, 144 So. 364: Cormack v. Coleman, 120 Fla. 1, 13, 161 So. 844; State v. Thompson, 120 Fla. 860, 163 So. 270; Fountain v. Fountain, 123 Fla. 748, 167 So. 651; Deeb v. State, 131 Fla. 362, 370, 179 So. 894.

§ 26 HISTORY.


ANNOTATION. See ·annotation to § 24 of this Article. Quoted in State v. Board of County Com'rs, 147

Fla. 278, 281, 3 So. (2d) 360.

gars v. State, ·94 Fla. 1128, 115 So. 537; State v. Sullivan, 95 Fla. 191, 197, 116 So. 255.

§ 27 HISTORY.


ANNOTATION. Cross references.-See annotaiions to §§ 24 and

28 of this Article. Under this section there can be only one prose

cuting attorney, county solicitor, of a criminal court of record; one officer held responsible for a proper discharge of the duties of the office and liable for misconduct in' the discharge of such duties. State v. Botts, 101 Fla. 361, 363, 134 So. 219.

The section leaves the fixing of compensation to the legislature. It eliminates legislation fixing compensation from the provisions of §§ 20 and 21 of Article III of the Constitution. State v. ·Board of County Com'rs, 147 Fla. 278, 282, 3 So. (2d) 360.

Applied in Taylor v. Trianon Amusement Co., 146 Fla. 447, 453, 200 So. 912. ·

Cited in West v. State, 75 Fla. 342, 368, 78 So. 275; T yson v. State, 87 Fla. 392, 403, 100 So. 254 (dis. op.); Sawyer v. State, 94 Fla. 60, 113 So. 736; State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; Pelaez v. State, 107 Fla. 50, 53, 144 So. 364; State v. Peeler, 107 Fla. 615, 619, 146 So. 188, 90 A. L. R. 447; State v. Davidson, 121 Fla. 196, 198, 163 So. 588; In re Advisory Opinion to Governor, 137 Fla. 298, 188 So. 218; In re Advisory Opinion to Governor, 147 Fla. 148, 155, 2 So. (2d) 372.

' § 28 HISTORY.

Original section of Constitution 1885 .

ANNOTATION. Cross reference.-See annot~tion to § 24 of this

Article. "Under oath" contemplates that the jurat be

made in the presence of one authorized to administer oaths, otherwise it is of no avail. State v. Coleman, ·139 Fla. 656, 658, 190 So. 811.

Although in counties not having criminal courts of . record indictments by the grand jury are requtred, this does not operate to deprive persons in counties where such courts of record are established of the equal protection of the laws or of due process of law, within the meaning of the 14th Am endment to the Federal Constitution, or of similar provisions in our State Constitution. Sawyer v. State, 94 Fla. 60, 113 So. 736.

The provision that the grand jury of the circuit court may indict for offenses triable in the criminal court of record does not mean tha~ no person can be prosecuted upon information in such criminal court of record until he has first been indicted by the grand jury. Sawyer v. State, 94 Fla. 60, 113 So. 736.

Insofar as statute vests assistant county solicitors with authority to sign, swear to and file informations in criminal courts of record (Fla. Stats. 1941, § 32.25), it is in conflict with this and § 27 of this Article and to that extent is void. Segars v. State, 94 Fla. 1128, 115 So. 537, cited in Young v. State, 97 Fla. 214, 216, 120 So. 326, 121 So. 468; State v. Davidson, 121 Fla. 196, 163 So. 588.

Cited in State v. Dowling, 91 Fla. 236, 107 '2&7; Sawyer v. State, 94 Fla. 60, 113 So. 736;

Fla.· Stat.-37

So. Quoted in State v. Coleman, 137 Fla. 177, 180, Se- 187 So. 696. . [ 1153 ]

Art. V, § 29 CONSTITUTION OF THE STATE OF FLORIDA Art. V, § 3;,

Cited in West v. State, 75 Fla. 342, 368, 78 So. 275; ·Holland v. State, 83 Fla. 400, 403, 91 So. 379; Suarez v. State, 95 Fla. 42, 46, 115 So. 519; State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; Pelaez v. State, 107 Fla. 50, 53, 144 So. 364; State v. Peeler, 107 Fla. 615, 619, 146 So. 188, 90 A. L. R. 447; Spencer v. Gomez, 114 Fla. 688, 692, 154 So. 858; Haddock v. State, 129 Fla. 701, 176 So. 782; Deeb v. State, 131 Fla. 362, 370, 179 So. 894: Haddock v. State, 141 Fla. 132, 152, 192 So. 802 (con. op.).

§ 29 HISTORY.

Original section of Cons~itution 1885.

ANNOTATION. Cited in West v. State, 75 Fla. 342, 368, 78 So.

275; State v. Sullivan , 95 Fla. 191, 197, 116 So. 255.

§ 30 HISTORY.


ANNOTATION. This section must be read in connection with

§ 23 of this Article and both be given full force and effect, if possible. Fountain v. Fountain, 123 Fla. 748, 750, 1t>7 So. 651.

The provision that compensation shall be fixed by law, contemplates a general law fixing such compensation. State v. O'Neal, 100 Fla. 1277, 131 So. 165.

Statute relating to service of process (Fla. Stats., 1941, § 47.12) held not in conflict with this section. Crum v. Baily, 135 Fla. 192, 184 So. 774.

Cited in Tyson v. State, 87 Fla. 392, 403, 100 So. 254 (dis. op.); In re Advisory Opinion to Governor, 94 Fla. 986, 114 So. 889 ; State v. Sullivan, 95 Fla. 191, 197, 116 So. 2.55; Knight v. Atkin, 95 Fla. 526, 529, 116 So. 239.

§ 31 IiiSTORY.

Origin;:tl section of Constitution 1885.

ANNOTATION. Cited in State v. Sullivan, 95 Fla. 191, 197, 116

So. 255. § 32

HISTORY.

ion to Governor, 93 Fla. 1024, 1028, 113 So. 115; State v. Collins, 101 Fla. 371, 134 So. 595; State v. Bird, 120 Fla. 780, 793, 163 So. 248; In re Advisory Opinion to Governor, 147 Fla. 157, 164, 2 So. (2d) 378.

§ 34 HISTORY.


ANNOTATION. This section is the only provision of the consti

tution conferring judicial power on municipal officers. Owens v. Bond, 83 Fla. 495, 497, 91 So. 686.

Quoted in Wright v. Worth, 83 Fla. 204, 209, 91 So. 87.

Cited in LaTour v. Stone, 139 Fla. 681, 687, 190 So. 704.

§ 35 HISTORY.

Original section of Constitution 1885; amended by Joint Resolution 2, Acts of 1897, adopted at general election 1898; amended by ] oint Resolution 3, Acts of 1909, adopted at general election 19'10.

ANNOTATION. This section should be applied in connection

with § 1 of this Article. State v. Quigg, 83 Fla. 1, 3, 90 So. 695.

The authorization of "such other cpurts or commissions as the legislature may from time to time ordain and es tablish" was an amendment to § 1 of this Article and modified this section so as to enable the legislature to establish additional courts and commissions. State v. Sullivan, 95 Fla. 1lll, 116 So. 255.

And section 8.-Section 8 of this Article provides that a judge for an additional circuit therein provided for "shall be appointed for a term equal to the un expired term of the other circuit judges." The spirit, if not the letter, of this provision is applicable to the appointment of circuit judges. for other additional circuits created under this section. In re Advisory Opinion to Governor, 76 Fla. 649, 651, 80 So. 519.

It was not in any wise impliedly superseded, amended or modified by the adoption of § · 45 of this Article. State v. Thompson, 120 Fbi. 860, 886, 163 So. 270.

Original section

ANNOTATION. Cited in State v.

The legislature has no power to create canvassing committees or boards with final judicial power

Sullivan, 95 Fla. 191, 197, 116 to pass upon purely judicial questions arising under the primary election law. D'Alemberte v. State, 56 Fla. 162, 47 So. 489.

of Constitution 1885. ·

So. 255. § 33

HISTORY. . Original section of Constitution 1885.

The provision in primary election law making the decisions of committees final, is not to be construed as final in the sense that such decisions are

ANNOTATION. absolute to the exclusion of judicial inquiry, so as Rule changed by section.-The rule announced to make such provision obnoxious to this sec

in In re Advisory Opinion to Governor, 16 Fla. tion. Id. 841, was changed by this section. State v. Amos, Statute regulating real estate brokers and sales-101 Fla. 114, 117, 133 So. 623. men held not violative of this section. State v.

Long continued illness of a circuit judge does Rose, 97 Fla. 710, 122 So. 225. not create a vacancy in his office so as to authorize Applied in State v. Butler, 70 Fla. 102. 69 So. an executive appointment thereto although such 771: State v. Hilburn, 70 Fla. 55, 69 So. 784. , illness renders him unable to devote his personal Quoted in In re Advisory Opinion to Governor, attention to the duties of the office. In re Ad vi- 9:1 Fla. 948, 950, 113 So. 113. sory Opinion to Governor, 67 Fla. 423, 65 So. 4. Cited in In re Advisory Opinion to Governor,

Quoted in In re Advisory Opinion to Governor, 78 Fla. 5, 8, 82 So. 612; State v. Railroad Com'rs, 120 Fla. 142, 149, 162 So. 346. 79 Fla. 526, 531, 84 So. 4H: State v. Branning, 85

Cited in In re Advisory Opinion to Governor, Fla. 61, 66, 95 So. 237; State v. Giblin, 98 Fla. 802, 76 Fla. 649, 651, 80 So. 519; In re Advisory Opin- 813, 124 So. 375; Florida Motor Lines v. Railroad

i 1154 ]

Art. V, § 36 JUDICIAL DEPARTMENT 'Art. V, § 43

Com'rs, lOp Fla. 538, 544, 129 So. 876; Matthews v. State, 111 Fla. 587, 592, 149 So. 648 (con. op.); In re Advisory Opinion to Governor, 120 F la. 142, 149, 162 So. 346; State v. Bird, 120 Fla. 780, 163 So. 248; State v. Lee, 121 Fla. 360, 400, 163 So. 859 (dis. op.); State v. Thompson, 125 Fla. 466, 473, 170 So. 464; Mutual Benefit Health, etc., Ass 'n v. Bunting, 133 Fla. 646, 652, 183 So. 321; State v. L ee, 134 Fla. 59, 69, 183 So. 782 (con. op.); Brown v. State, 135 Fla. 30, 33, 184 So. 518; South Atlantic Steamship Co. v. Tutson, 139 F la. 405, 417, 190 So. 675.

§ 36 HISTORY.


ANNOTATION.

tual Benefit H ealth, etc., Ass'n v. Bunting, 133 Fla. 646, 652, 183 So. 321.

§ 41 HISTORY.

Section added by amendment, Joint Resolution 2, Acts of 1909, adopted at general election 1910.

ANNOTATION. Cited in Holland v. State, 83 Fla. 400, 402, 91

So. 379; Lewis v. Leon County, 91 Fla. 118, 164, 107 So. 146 (dis. op.); State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; State v. Giblin, 98 Fla. 802, 813, J 24 So. 375; State v. Mayo, 123 F la. 491, 167 So. 34; Mutual Benefit Health, etc., Ass'n v. Bunting, 133 Fla. 646, 652, 183 So. 321.

<;:ited in Ex parte Sirmans, 94 f la. 832, 838, 116 HISTORY. So. 282.

§ 42

§ 37 HISTORY.

Original · section of Constitution 1885.

ANNOTATION. This section has reference to process as used in

the restricted sense and has r eference only to that character of process which under the common law would run in the name of the king. It has no application to statutes providing for constructive service in chancery. Gautier Properties v. Biscayne Trust Co., 100 Fla. 403, 405, 129 So. 848.

A prosecution instituted in the name and in behalf of the people of the state of Florida is a substantial compliance with this section. State v. Gleason, 12 Fla. 190.

Prosecution instituted in the name of the board of commissioners of pilotage held violative of this proviSIOn. Ex parte Nightingale, 12 Fla. 272.

Applied in State v. Stone, 137 F la. 498, 188 So. 575; Gilmer v. Bird, 15 Fla. 410.

Cited in Horne v. Ocala, 143 Fla. 108, 114, 196 So. 441 (dis. op.).

§ 38 HISTORY.

Original sectio.n of Constitution 1885.

Section added by amendment, Senate Joint Resolution 257, Acts of 1911, adopted at general election 191'2.

ANNOTATION. This section has not been in any wise impliedly

superseded, amended or modified by the adoption of § 45 of this Article. State v. Thompson, 120 Fla. 860, 886, 163 So. 270.

This section does not prevent proper statutory classification of counties and circuits for the purpose of prescribing the compensation of judges of the circuit court under § 1 of this Article. State v. Lee, 119 F la. 745, 757, 160 So. 886.

It does not forbid a classi fication of judicial circuits in which contributions to the salaries of circuit judges in the class shall be made by the counties therein. Id.

Cited in Pope v. State, 84 Fla. ,428, 436, 94 So. 865; State v. Merritt, 86 F la: 164, 171, 99 So. 230 ; Lewis v. Leon County, 91 F la. its, 164, 107 So. 146 (dis. op.); State v. Giblin , 98 F ia. 802, 813, 124 So. 375; State v. Bird, l 20 F la. 780, 795, 163 So. 248; Mutual Benefit Healt h, etc., Ass'n v. Bunting, 133 Fla. 646, 652, 183 So. 321.

§ 43 HISTORY.

ANNOTATION. Section added by amendment, Joint Resolution Cited in Cotton v. State, 85 Fla. 197, 201, 95 So. 9, Acts of 1921, adopted at general election 1922.

668. ANNOTATION. § 39 This section has not been in any wise impliedly

HISTORY. Section added by amendment, Joint Resolution

2, Acts of 1909, adopted at general election 1910.

ANNOTATION. . Quoted in Fountain v. Fountain, 123 Fla. 748,

i67 So. 651. Cited in Holland v. State, 83 Fla. 400, 402, 91

So." 379; State ~- Sullivan, 95 Fla. 191, 197, 116 So. 255; Stearns v. Stearns, 106 Fla. 440, 143 So. 642; State v. Mayo, 123 Fla. 491, 167 So. 34; Mutual Benefit Health, etc., Ass'n v. Bunting, 133 Fla. 64 6, 652, 183 So. 321.

superseded, amended or modified by the adoption of § 45 of this Article. State v. Thompsqn, 120 Fla. 860, 886, 163 So. 270.

Classification of counties and circuits for the pur~ pose of prescribing compensation of circuit judges under § 1 of this Article is not prevented by this ·section. State v. Lee, 119 Fla. 745, 757, 160 So. 886.

When an ad interim appointment of a circuit judge is legally made by the governor to hold un·til the end of the next session of the senate, it is the duty of the governor to submit to the senate at its next session an appointment of a circuit judge

§ 40 for confirmation to fill such office under this sec~ HISTORY. tion and § 45 of this Article for the term contem-

Section added by amendment, Joint Resolution plated by the Constitution. The ad interim ap-2, Acts of 1909, adopted at general election 1910. pointment and the subsequent appointment for ANNOTATION. confirmation by the senate may be by succeeding

Cited' in Holland v. State, 83 Fla. 400, 402, 91 governors. In the latter case the incumbent gov-So. 379; State v. Sullivan,- 95 Fla. 191, 197, 116 So. ern or makes an appointment, and does not m erely 255; State v. Mayo, 123 Fla. 491, 167 So. 34; Mu- transmit to the senate for confirmation the nam~

[ 1155 ]

Art. V, § « CONSTITUTION OF THE STATE OF FLORIDA Art. VI,§ 1

-of the judge who had been appointed ad litem. In re Advisory Opinion to Governor, 147 Fla. 157, 163, 2 So. (2d) 378.

Applied in State v. Atkinson, 116 Fla. 366, 372, 156 So. 726, 96 A. L. R. 539; Coral Gables v. Blount, 131 Fla. 36, 178 So. 554; as to holding over by additional circuit judges, in State v. Day-

. ton, 111 Fla. 202, 149. So. 769; as to appointment of additional judges, in In re Advisory Opinion to Governor, 93 Fla. 1024, 113 So. 115; In re Advisory Opinion to Governor, 101 Fla. 1510, 136 So. 623.

Quoted in In Advisory Opinion to Governor, 93 F la. 948, 951, 113 So. 113.

Cited in State v. Branning, 85 Fla. 61, 66, 95 So. "237; In re Advisory Opinion to Governor, 85 Fla. 505, 97 So. 127; State v. Sullivan, 95 Fla. 191, 197, 116 So. 255; State v. Giblin, 98 Fla. 802, 813, 124 So. 375; State v. Bird, 99 Fla. 673, 676, 127 So. 331; State v. Bird, 120 Fla. 780, 795, 163 So. 248; State v. Thompson, 125 Fla. 466, 472, 170 So. 464; State v. Jackson, 128 Fla. 240, 245, 174 So. 471; Mutual Benefit Health, etc., Ass'n v. Bunting, 133 Fla. 646, 652, 183 So. 321; State v. Lee, 134 Fla. 59, 69, 183 So. 782 (con. op.).

§ 44 HISTORY.

Section added by amendment, Senate Joint Resolution 322, Acts of 1925, adopted· at gc:eral election 1926.

ANNOTATION. Cited in State v. Sullivan, 95 Fla .. 191, 197, 116

So. 255. § 45

HISTORY. Section added by amendment, Senate Joint Res

olution 582, Acts of 1933, adopted at general election 1934.

ANNOTATION. This section is a valid part of the constitution.

State v. Thompson, 120 Fla. 860, 877, 163 So. 270. It authorizes the legislature to provide for reap

portionment and reduction in judicial circuits and circuit judges. State v. Thompson, 120 Fla. 860, 885, 163 So. 270.

It was intended to work no changes in the circuit courts system otherwise, except such as might be necessari ly implied for the accompli shment of the principal end desired. It was not "the intention of the framers of the section to repeal or amend, either expressly or by inference, any other existing section of the article. State v. Thompson, 120 Fla. 860, 885, 163 So. 270.

Neither §§ 8, 35, 42 or 43 of this Article have been in any wise impliedly superseded, amended or modified by the adoption of this section, but these and all others of the pre-existing sections of the judiciary article still retain their full force, effect and vigor, except insofar as such preceding sections of the article appear to be in direct and irreconcilable conflict with the express terms of this section. I d.

As to appointment of circuit judges, see annotation to § 43 of this Article.

Applied in In re Advisory Opinion to Governor, 120 Fla. 142, 162 So. 346; State v. Bird, 120 Fla. 780, 163 So. 248; State v. Thompson, 121 Fla. 561, 164 So. 192; In re Advisory Opinion to Governor, 128 Fla. 3"34, 337, 174 S_o. 7 40.

Cited in Collier v. Gray, 116 Fla. 845, 849, 157 So. 40; State v. Lee, 119 Fla. 745, 756, 160 So. 886: In re Advisory Opinion to Governor, 120 Fla. 142, 149, 162 So. 346; In re Opinion of the Justices, 120 Fla. 729, 163 So. 76; State v. Davis, 124 Fla. 592, 607, 169 So. 199; Brown v. State, 135 Fla. 30, 34, 184 So. 518.

ARTICLE VI. SuFFRAGE AND ELIGIBILITY.

§ 1 HISTORY.

Original section of Constitution 1885; amended by House Joint Resolution 2, Acts of 1893, adopted at general election 1894.

ANNOTATION. This section defines the qualifications of electors

who may participate in general elections. State \1. Page, 125 Fla. 348, 355, 169 So. 854; Lake Maitland v. Carleton, 103 Fla. 583, 137 So. 707.

And makes registration a prerequisite to the vote. State v. Rinehart, 140 Fla. 645, 651 , 192 So. 819.

The word "male" as it appears in this section is regarded as having been eliminated by the adoption in 1920 of the Nineteenth Amendment to the Constitution of the United States. Barnett v. Gray, 107 Fla. 73, 81, 144 So. 349; Faucette v. State, 147 Fla. 754, 756, 3 So. (2d) 392.

See § 9-8.01, Fla. Stats. , 1941. Legislative phrase "qualified elector" presumed

to mean elector as herein defined. Tacker v. Board of County Com'rs, 126 Fla. 15, 18, 127 Fla. 248, 170 So. 458. -

As legislature may not add different restrictions. State v. County Board of Public Instruction, 137 F la. 244, 188 So. 88.

Nor lower qualifications, such as by allowing minors to vote.-Statute removing disabilities o·f married male minors (§ 743.01 Fla. Stats., 1941) is ineffective as to the right to vote because this section limits the right of suffrage to male citizens twenty-one years of age. Where the constitution in terms prescribes qualifications for suffrage the legislature is powerless to modify these qualifications. Riley v. Holmer, 100 Fla. 938, 131 So 330.

Statutory referendum elections are not ~lections within the meaning of this section. Masters v. Duval County, 114 Fla. 205, 216, 154 So~ 172.

No elector or other person has an inherent or organic right to vote in statutory referendum elections. Id.

Municipal elections are not included. State v. Dillon, 32 Fla. 545, 14 So. 383, 22 L. R. A. 124.

The primary election laws are a part of the general election machinery of the state. Overstreet v. Whiddon, 130 Fla. 231, 240, 177 So. 701; State v. Page, 125 Fla. 348, 169 So. 854.

Primary election law amounts to a policing and regulation of the m ethod and means by whlch the political activities of the qualified electors .Jefined by this section are ultimately exerted in the final choice of elective officers. State v. Page, 125 Fla 348, 355, 169 So. 854; Overstreet v. Whidd·:m, 130 Fla. 231, 177 So. 701.

The registration officers contemplated by the constitution are those who have been official!y appointed and commissioned as such and who havt: qualified as public registration officers by taking

[ 1156 ]

Art. VI,§ 2 SUFFRAGE AND ELIGIBILITY Art. VI, § 9 '

the oath of office prescribed by § 2 of Art. XVI and whose acts are designed by law to be performed within the territorial limits of the state under the sanction and penalties of its laws and ~ot mere official registrars. State v. Page, 125 Fla. 348, 169 So. 854.

Stated in Leavine v. State, 101 Fla. 1370, 133 So. 870.

Cited in State v. Culbreath, 124 Fla. 268, 168 So. 244; Winter Haven v. Klemm & Son, 1:32 Fla. 334, 181 So. 153; State v. Henderson, 134 Fla. 731, 184 So. 654.

§ 2 HISTORY.


ANNOTATION. · This section .requires an official registration of

all such qualified electors before they can be permitted to vote. State v. Page, 125 Fla. 34!\, 355, 169 So. ·854.

It authorizes the legislature to provide foi' the registration of all electors. Lake Maitland v. Carleton, 103 Fla. 583, 137 So. 707.

Which must be performed within the territorial limits of the state. State v. Page, 125 Fla. 348, 358, 169 So. 854.

Chapter 16987, acts of 1935, authorizing regis· tration for primary elections to be performed outside the territorial jurisdiction . of the state and prescribing an elector's oath wholly at variance with that prescribed by § 3 of this article . , is unconstitutional because registration of electors is a sovereign act and must be performed within the territorial limits of the state. Id.

§ 3 HISTORY.


ANNOTATION. Personal appearance before registration officer

required.-See State v. Page, 125 Fla. 348, 355, 169 So. 854.

Registration officers contemplated, see annotation to § 1 of this Article, ante.

Cited in Gray v. Winthrop, 115 Fla. 721, 1.56 So. 270, 94 A. L. R. 804; Gray v. Moss, 115 Fla. 701, 156 So. 262; State v. Culbreath, 124 Fla. 268, 168 So. 244.

§ 4 HISTORY.


§ 5 HISTORY.


and malpractice,. the penalty for which is imprisonment not exceeding one year or by fine not exceeding five hundred dollars, the place of im .. prisonment not being designattd, is not an infamous crime. Adams v. Elliott. 128 Fla. 79, 174 So. 731.

Cited in Quigley v. State, 99 Fla. 933, 127 So. 898 . .

HISTORY. § 6

Original section of · Constitution 1885.

ANNOTATION. Guarantee of secret vote by ballot is binding

upon municipalities in the regulation of elections. State v. Anderson, 26 Fla. 240, 8 So. 1; State v. Dillon, 32 Fla. 545, 14 So. 383, 22 L . R. A. J.24.

An ordinance which provides that there ~hall be separate ballot boxes to receive the ballots for the different city officers, and that the ballots shall be printed on plain white paper, to contain nothing bu't the name of the officer or officers voted for, does not violate this section. State v. Anderson, 26 Fla. 240, 8 So. 1.

Elector cannot be compelled to violate the secrecy of his ballot but may waive such right. State v. Tucker, 106 Fla. 905, 908, 143 So. 754.

Hence, the Absent Voters' Law is constitutional. -The Absent Voters' Law, §§ 429, et seq., C. G. L. (§§ 101.01, et seq., Fla. Stats., 7941) was not unconstitutional under this section because the method therein provided for voting destroyed the secrecy of the ballot, as there was no provision of the statute which compelled the voter to pursue the method of voting provided and if the voter did pursue such method it was in the exercise of the free and voluntary choice of the voter. State v. Tucker, 106 Fla. 905, 907, 143 So. 754. See anno .. tation to § 9 of this Article.

HISTORY. § 7

Original section of Constitution 1885; section repealed by House Joint Resolution 2, Acts of 1893, adopted at general election 1894.

§ 8 HISTORY.


ANNOTATION. This section authorizes the legislature to make

the ·payment of capitation tax a prerequisite for voting. Lake Maitland v. Carleton, 103 Fla. 583, 137 So. 707.

However, the legislature has abolished the pol l tax, see §§ 98.02 and 193.75, Fla. Stats., 1941.-Ed. note.

§ 9 ANNOTATION. Cross references.-See annotations to § 9 of this HISTORY.

Article and § 23 of Art. III. Original section of Constitution 1885. Legislature may regulate the conducting of ANNOTATION.

primary elections.-See State v. Carson, 114 Fla. Cross references.-See § 26 of Art. III, and 451, 456, 154 So. 150. _ annotation thereto. As to act authorizing regis

Misdemeanor is not an infamous crime. Adams tration for primary elections 'to be performed ouc· v. Elliott, 128 Fla. 79, 90, 174 So. 731. side state, see annotation to § 2 of this Art1cle.

The term "felony" means a criminal offense Absentee voting.-There was nothing 10 the punishabl~ w~th death or impr~sonment in the Absent Voters' Act, §§ 429, et seq., C: G. L. (§§ state pemtenhary. Adams v. Elhott, 128 Fla. 79, 101.01, et seq., Fla. Stats., 1941) permitting ab-89, 174 So. 731. . sentee votes to be cast in another county within

Extortion and malpractice by an offidal do the state, which could have been construed to be not disqualify him.-Conviction and sentence un- in conflict with this section. State v. Tucker 106 der § 83.9.11, Fla. Stats., 1941, relating to extortion Fla. 905, 143 So. 754. '

[ 1157 1

Art. VII, § ·1 CONSTITUTION OF THE STATE OF FLORIDA Art. VIII, § l

Chapter 16986, Acts 1935, permitting absentee votes to be cast from without the state, was unconstitutional as it provided means to escape any qualification whatever and made it possible to corrupt rather than preserve the purity of the ballot, thus leaving the door open for fraud. State v. Rinehart, . 140 Fla. 645, 192 So. 319.

Absentee voting was not in the minds of the makers of the constitution when that instrument was cast. The rigidity of its enforcement is an open question in this state but wisdom and experience teach us that it has been a f,ru itfui means of corrupting the ballot if not carefully safeguarded. It should therefore be limited and authorized only in case of ex necessitate rei. Id.

Qualifications of voters to ratify act abolishing a town.-Special act abolishing town and providing that it should take effect upon rhification by majority of property owners twenty one years old, did not impair the purity of the ballot designed to be preserved by this section even if the provision<; might be interpreted to permit land owners not qualified electors to vote. San Mateo City v. State, 117 Fla. 546, 158 So. 112.

Statute changing form of city government held not repugnant to this and other sections of this Article. State v. O'Quinn, 128 Fla. 835, 175 So. 769.

Statute creating special election board in particular municipality.-If the legislature has already provided by other provisions of law for

· municipal elections and it deems a special election board to be necessary in a particular municipality to effectuate the general spirit expressed in this section, whether the policy of such legislation be sound or not, the courts must give it the benefit of the presumption that such was the leg.slative purpose which may reasonably be supposed to have actuated its enactment. State v. Johnson, 102 Fla. 19, 28. 135 So. 816.

Equity jurisdiction.-As to issuance of injunction in relation to primary elections, see Joughin. ~- Parks, 107 Fla. 833, 143 So. 145, 306, 147 So. 273.

Quoted in State v. Carson, 114 Fla. 451, 154 So. 150.

Cited in State v. Armstrong, 103 Fla. 121, 137 So. 140.

ARTICLE VII. CENSUS AND APPORTIONMENT • .

' § 1

HISTORY. Original section of Constitution 1885.

§ ~

during the period between the general electioll'J in 1918 and 1920. In re Advisory Opinion to Governor, 76 F la. 417, 79 So. 874.

Term of senator begins upon election.- The "terms of four years" for senators begin (In the day of their election for four years and expire on the day of the "election for senators" four years th ereafter. Taylor v. Crawford, 95 Fla. 438, 445, 116 So. 41.

Term of representative expires upon election of successor.-The terms of office of the members of the house of representatives expire at the election for members of the house of representatives on the first Tuesday after the first Monday in November. In re Advisory Opinion to Governor, 94 Fla. 620, 627, 113 So. 913.

Cited in In re Advisory Opinion to Governor, 76 Fla. 417, 79 So. 874; In re Advisory Opinion to Gover~or, 61 Fla. 1, 55 So. 460.

HIS•TORY. § 3

Original section of Constitution 1885; amended by Senate Joint R esolution 255, Acts of 1923. adopted at general election 1924.

ANNOTATION. Each county shall have representatives in the

legislature. Amos v. Mathews, 99 Fla. 1, 32, 121; So. 308.

The refusal of the legislature to apportion representation and take census as required in this and the following sections does not render void laws passed by a legislature elected subsequent tc such refusal. Everglades Drainage League v. Broward Drainage Dist., 253 F. 246, 252.

Cited in State v. Lee, 119 Fla. 745, 160 So. 886.

HISTORY. § 4

Original section of Constitution 1885; amended by Joint Resolution 1, Acts of 1899, adopted at general election 1900.

HISTORY. § 5


ARTICLE VIII. CouNTIEs AND CITIES.

§ 1 HISTORY.


ANNOTATION. It appears from this section that all of the state

of Florida was required to be divided into counties and, therefore, it must be construed that coun-

HISTORY. ties bordering on the Gulf of Mexico include that Original section of Constitution 1885; amended area within the Gulf adjacent to the up-land and

by Joint Resolution 3, Acts of 1B89. adopted at out to the state boundary line. Lipscomb v. Giageneral election 1890; amended by House Joint lourakis, 101 Fla. 1130, 1135, 133 So. 104. Resolution 5, Acts of 1895• adopted at general Chapter 6208, Laws 1911, held not to violate this election 1896. and the next section. Stewart v. DeLand-Lake ANNOTATION. Helen Special Road, etc., Dist., 71 Fla. 158, 71

Generally.-The members of the house of rep- So. 42. resentatives elected November 5, 1918, and the Cited in State v. Ocean Shore Improve. Dist., members of the senate elected at that time, to- 116 Fla. 284, 285, 156 So. 4313; Masters v. Duval gether with the members of the senate who, at County, 114 Fla. 205, 210, 154 So. 172; State v. the general election in 1916, were elected for four Vickers, 110 Fla. 157, 161, 148 So. 526; Whitney years, constituted the members of the legislature v. Hillsborough County, 99 Fla. 628, 643, 127 So.

[ 1158 1

Art. VIII, § 2 COUNTIES AND CITIES Art. VIII, § 6

486; Lewis v. Leon County, 91 Fla. ns,. 181, 107 So. 146 (dis. op.); Amos v. Mathews, 99 Fla. 1, 31, 126 So. 308.

§ 2 HISTORY.


ANNOTATION. Cited in State v. Ocean Shore Improve. Dist.,

116 Fla. 284, 285, 156 So. 433; Masters v. Duval County, 114 Fla. 205, 210, 154 So. 172; Whitney v. Hillsborough County, 99 Fla. 628, 643, 127 So. 486; Amos v. Mathews, 99 Fla. 1, 31, 126 So. 308.

§ 3 HISTORY.


ANNOTATION. The courts will not by mandamus require a

newly formed county to pay to the parent county its proportionate part of the indebtedness, irrespective of its maturity, under the provisions making a newly established county, liable for its proportionate part of th e indebtedness of the old county. Coachman v. State, 66 Fla. 274, 63 So. 425.

In the creation of new counties the legislature need not ascertain what proportion of the liabilities existing against the county or counties out of which the new county is formed shall be assumed by the latter. If the legislature makes suitable provision for ascertaining such proportion of indebtedness which the new county shall assume according to the formula prescribed by this section, it will be sufficient. Young v. Dixie County, 89 Fla. 510, 105 So. 105.

When court will question ruling of board.Where there is no charge of fraud or bad faith or that an indebtedness was not prorated between Manatee and th e newly created county of Sarasota as required by th is section, and it is agreed that all the indebtedness was incurred for legitimate sehoul purposes, the court will not question the determination of the boards of public instruction in a proceeding to validate bonds. State v. Board of Public Instruction, 129 Fla. 235, 239, 176 So. 96; State v. Board of Public Instruction, 131 Fla. 272, 276, 176 So. 96.

Applied in Canova v. State, 18 Fla. 512; State v. County Com'rs, 21 Fla. 1.

Quoted in State v. Special Road, etc., Dist., 133 Fl<:~. 119, 124, 182 So. 583; Richmond Trust Co. v. Charlotte County, 12 F. (2d) 62, 63, reversing 300 F . 121.

Cited in State Bank v. Board of Public Instruction, 116 Fla. 184, 186, 156 So. 319; State v. Daniel, 87 Fla. 270, 273, 99 So. 804; Board of Public Instruction v. State, 137 Fla. 339, 340, ISS So. 334; Lott v. Orlando, 142 Fla. 338, 196 So. 31i$;. State v. Daniel, 87 Fla. 270, 301, 99 So. 804; State v. O'Neal, 100 Fla. 1277, 1282, 131 So. 165.

provide for postponement of county seat elections in counties having built a courthouse. Collier v. Cassady, 63 Fla. 390, 57 So. 617. .

Act providing for temporary county seat held not to violate this section. Martin County v. Hansen, 111 Fla. 40, 41, 149 So. 616.

Act providing for terms of circuit court to be held in a city other than the county seat for the trial of certain civil cases was violative of this section. Mack v. Carter, 133 Fla. 313, 314, 183 So. 478.

Cited in Waybright v. Duval County, 142 Fla. 875, 895, 196. So. 430; Everglades Sugar, etc., Co. v. Bryan, 81 Fla. 75, 87, 87 So. 68; State v. Harris. 120 Fla. 555, 562, 163 So. 237; State v. Tyler, 95 Fla. 811, 819, 116 So. 760 (con. op.); State v. O'Neal, 100 Fla. 1277, 1282, 131 So. 165; Amos v. Mathews, 99 Fla. 1, 32, 126 So. 308.

§ 5 HISTORY.

Original section of Constitution 1885; amended by Senate Joint Resolution 3, Acts of 1899, adopted at general election 1900. ' ANNOTATION.

Under this organic provision county commissioners have only such authcrity as is conferred by statute, except of course the powers and duties conferred by the constitution itself. See Bowden v. Ricker, 70 Fla. 154, 69 So. 694; Stephens v. Futch, 73 Fla. 708, 74 So. 805; State v. Wheat, 103 Fla. 1, 13, 137 So. 277; County Com'rs v. Pilut Com'rs, 52 Fla. 197, 42 So. 697, 120 Am. St. Rep. 196.

The legislature possesses powers of the broadest possible nature consistent with the constitutionally recognized existence of these local officers in determining the extent of their local powers and duties. Amos v. Mathews, 99 Fla. 1, 3. 126 So. 308.

Commissioners are constitutional officers.-In State v. Walton County, 93 Fla. 796, 112 So. 630, it was held that county commissioners are constitutional officers, whose powers and duties shall be fixed under this section. State v. Henderson , 134 Fla. 731, 743, 184 So. 654; Brown v. Winton, 143 Fla. 478, 480, 197 So. 543.

A reference to county commissioners districts for descriptions of territory included in statutory special taxing districts is not to be commended. Stewart v. New Smyrna Inlet Dist., 100 Fla. 1126, 1128, 130 So. 575.

Cited in State v. Walton County, 93 Fla. 796, BOO, 112 So. 630; Taylor v. Williams, 142 Fla. 402, 413, 195 So. 175; Amos v. Mathews, 99 Fla. 1, 32, 126 So. 308; State v. Sullivan, 99 Fla. 1070, 1072, 128 So. 478; Richmond Trust Co. v. Charlotte County, 300 F. 121, 126, reversed in 12 F. (2d) 62.

§ 6 HISTORY.

Original section of Constit~tion 1885; amended by committee substitute for Joint Resolutions 34,

§ 4 89 and 98, Acts of 1913, adopted at gener:d elec-HISTORY. tion 1914.

Original section of Constitution 1885. ANNOTATION.

ANNOTATION. Care, etc., of funds.-In Amos v. Mathews, 9() Duty of legislature to establish.-In establish- Fla. 1, 26 So. 308, it is said that this section "vests

ing a new county, it is the duty of the legislature in the legislature the authority to create the board to designate a county seat. State v. Sammons, 62 of administration provided in Senate Bill 1, for the Fla. 303, 57 So. 196. See also, County Com'rs v. 'care, custody, reporting and . paying out' of such State, 24 Fla. 263, 4 So. 795. county funds." State v. Sholtz, 115 Fla. 56!, 572,

Postponement of elections.-The legislature may 155 So. 736. [ 1159 l

Art. VIII, § 7 CONSTITUTIO N OF THE STATE OF FLORIDA Art. VIII, § 8

The statement that the state board of administration is the mere "fiscal agent," was reiterated by this court in State v. Carlton, 103 Fla. 8l0, 138 So. 612; State v. Sholtz, 115 Fla. 561, 572, 155 So. 736.

Chapter 7334, Acts 1917 held unconstitutional and in violation of thi s section, in State v . Spencer, 81 Fla. 211, 87 So. 634.

Woman held qualified to hold office, may be appointed to fill a vacancy in the office of county treasurer. In re Advisory Opinion to Governor, 62 Fla. 1, 57 So. 351, Ann. Cas. 1913C, 1161.

Quoted in Gray v. Childs, 115 Fla. 816, 156 So. 274.

Cited in Everglades Sugar, etc., Co. v. Bryan, 81 Fla. 75, 87, 87 So. 68; State v. Foley, 132 Fla. 5.95, 182 So. 195; Paxon v. State, 122 Fla. 470, 16j So. 661; State v. Ward, 117 Fla. 585, 158 So. 273; Orange County v. Robinson, 111 Fla. 402, 406, 149 So. 604; Sparkman v. County Budget Comm., 103 Fla. 242, 248, 137 So. 809; Cone v. King, 143 Fla 323, 196 So. 697; Flood v. State, 100 Fla. 70, 76. 129 So. 861; Rawls v. State, 98 Fla. 103, 105, 122 So. 222; In re Advisory Opinion to Governor, 92 Fla. 989, 993, 111 So. 252; State v. Shepard, 84 Fla. 206, 211, 93 So. 667; State v. O'Neal, 100 Fla. 1277, 1281, 131 So. 16f;; State v. Howell, 100 Fla. 1391, 1392, 131 So. 320; Masters v. State. 100 Fla. 1660, 1665, 131 So. 773; State v. Paderick, 77 Fla. 277, 279, 81 So. 285.

§ 7 HISTORY.

320; In re Advisory Opinion to Governor, 75 Fla. 674, 675, 78 So. 673; Dade County v. State, 95 Fla. 465, 478, 116 So. 72; State v. Howell, 101 Fla. 656, 658, 132 So. 647; In re Advisory Opinion to Governor, 94 Fla. 986, .114 So. 889.

§ 8 HISTORY.


ANNOTATION. I. General Consideration:

II. Applications.

Cross References. See §§ 165.01, et seq., 171.02, Fla. Stats., 1941.

I. GENERAL CONSIDERATION.

This section gives the legislature plenary power to deal with municipalities. State v. O'Q uinn, 128 Fla. 835, 838, 175 So. 769.

The power of the legislature over municipalities in this state is supreme. State v. Miami, 103 Fla. 54, 137 So. 261, 263; Gailey v. Robertson, 98 Fla. 176, 123 So. 692; State v. Clearwater, 106 F!a. 761. 139 So. 377, 146 So. 836; N abb v. Andreu, ~9 Fla. 414, 104 So. 591; Morin v. Stuart, 111 F. (2d) 7i3 , 775, 129 A. L. R. 250.

Since this section is an exclusive assignment of power.-This section is an exclusive assignment of power to the legislature. Pursley v. F t. Myers. 87 Fla. 428, 100 So. 366; Merrell v. St. Petersburg, 91 Fla. 858, 109 So. 315.

It may be exercised through administrative Original section of Constitution 1885. officers.-The power of supervision over munici-

ANNOTATION. palities may be exercised through administrative See § 125.01, Fla. Stats., 1941. state officers and their lawful employees within In In re Executive Communication , 25 Fla. 426, the limitations prescribed by law. State v. Noel.

5 So. 613, the county administrative offices were 114 Fla. 175, 186, 154 So. 214. declared to be vacant by the statute because the Meaning of local self-government.-Whatever officers who had been elected for the term had the phrase "local self-government" may mean in failed to qualify as required by this section. The gove rnment, the constitution of this state contam~ governor properly made appointments to fill no express provision with reference thereto and vacancies until the election and qualification of there are no provisions of the organic law that so successors at the general election. Likewise as to modify the express provision of this section as to In re Advisory Opinion to Governor, 65 Fla. 434. withhold from the legislature the power to desig-62 So. 363, 50 L. R. A. (N. S.) 365, where an nate by statute the particular persons whc shal1 elected state administrative officer failed to qualify. exercise the powers of a municipality created _by State v. Bird, 120 Fla. 780, 801 , 163 So. 248. statute, such power to designate being a part oi

The term of office of all appointees to fill vacan- or incidental to the quoted organic power to escies in any of the elective offices under this pro- tablish municipalities, to provide for their ~overn vision shall extend only to the election and qualifi - ment and to prescribe their jurisdiction and pow cation of a successor at the ensuing general elec- ers. State v. Johns, 92 Fla. 187, 109 So. 228. This tion. In re Advisory Opinion to Governor, 117 language was criticized in State v. Ault, 129 Fla. Fla. 773, 776, 158 So. 441. 686, 688, 176 So. 789.

This section, insofar as it requires a bond is However, such power may be delegated.- It is not construed to be mandatory, since the question well settled that the delegation of legislative power of whether a county officer shall be required to over a limited section of the state to a municipa! give a bo~d together with the amount and 'con- corporation is constitutional but the class of powditions thereof is one in the discretion of the legis- ers so delegated must be such as have referencr lature to determine. If the office is not one that to matters which form aQpropriate subjects of requires a bond, the leg islature may r emit it. The municipal regulation. Merrell v. St. Petersburg, legislature has frequently so construed this pro- 91 Fla. 858, 109 So. 315; Pursley v. Ft. lvfyers. 87 viswn . State v. Garrett, 130 Fla. 413, 417, 178 Fla. 428, 100 So. 366 ; State v. Pinellas County So. 309. Power Co. , 87 Fla. 243, 100 So. 504·; Quigg v.

Quoted in In re Advisory Opinion to Governor, State, 84 Fla. 164, 172, 93 So. 139; State v. Quigg, 92 Fla. 989, 994, 111 So. 252. 94 Fla. 1056, 1070, 114 So. 859.

Cited in State v. O ' Neal. 100 F la. 1277, 1281, And only such delegated powers may be exer-131 So. 165; State v. Bird, 120 Fla. 780, 792, 16:J cised.-Under this section municipalities of th1s So. 248; State v. Watkins. 88 Fla. 392. 403, 102 state can exercise only such powers and prerogaSo. 347; State v. Wheat, 103 Fla. 1, 137 So. 277: tives as are conferred on them expressly or imThursby v. Stewart. 103 Fla. 990, 1010, 138 So. pliedly by legislative enactment. DeLand v. Moor -742; State v. Howell, 100 Fla. 1391, 1394, 131 So. head, 96 Fla. 737, 119 So. 117.

[ 116C ]

Art. VIII, § 8 COUNTIES AND CITIES Art. VIII, § 8

Since the legislature has power the statute controls.-This section gives to the legislature full powers in forming municipalities, and the provisions of a statute on the subject control, unless some other section of the constitution is violated by the enactment. MacGuyer v. Tampa, 89 Fla. 138, 103 So. 418.

The elements, which necessitate or make desirable the creation of a municipal corporation must be present. There must be a basis for additional governmental facilities; otherwise that provided by the state and county is ample. State v. Boynton Beach, 129 Fla. 528, 531, 177 So. 327.

The section necessarily implies power to establish and alter boundaries or limits of territorial jurisdictipn. State v. Ft. Lauderdale, 102 Fla. 1019, 136 So. 889; State v. Clearwater, 106 Fla. 761, 139 So. 377, 146 So. 836; and contract rights cannot be adversely affected by such changes which are at all times subject to judicial review. If contracting the boundaries of a municipality adversely affects the obligations of contracts previously consummated by imposing a heavier or different burden on those affected, it will not be permitted to stand as to such contracts. Ft. 'Myers v. State, 129 Fla. 166, 168, 176 So. 483.

Iri State v. Largo, 110 Fla. 21, 149 So. 420, this court announced the principle that while the legislature has the power under the provisions of this section to establish municipalities and extend their boundaries, but it should at all times keep in mind, in exercising such authority, that the objects and purposes of such establishment of municipalities or extension of their boundaries are to provide for an aggregation or community or people and not simply an indiscriminate location of territory without regard for the requirements of the inhabitants. State v. Lake Placid, 117 Fla. 874, 880, 158 So. 497; State v. Pompano, 136 Fla. 730, 740, 188 So. 610. See also, State v. Lake Placid, 109 Fla. 419, 426, 147 So. 468.

This section applies when no other applicable provision of the constitution is violated by the action of the legislature. See Lake Alfred v. Lawless, 102 Fla. 84, 86, 135 So. 895, and many cases cited therein. See also, State v. Johns. 92 Fla. 187, 109 So. 228; Brown v. Lakeland, 61 Fla. 508, 54 So. 716; Williams v. Jacksonville, 118 Fla. 671, 685, · 160 So. 15, 98 A. L. R. 513; Buffum v. Stokes, 101 Fla. 984, 133 So. 75; Milton v. Marianna, lfJ7 Fla. 251, 255, 144 So. 400; State v. Stuart, 97 Fla. 69. 120 So. 335, 64 A. L. R. 1307.

Creditors must be protected on abolition.When a municipal corporation is abolished the legislature is bound to provide for the protection of the creditors of such corporation. This may be done by providing for the continuation of the assessment and collection of taxes and the disbursement of funds by proper officials named for that purpose, without the continuation of any corporate existence; or the legislature may do just as it did in this case, that is, provide for the protection of creditors by the creation of a new corporation and the creation of which has the legal effect of establishing a successor entitled to all the rights and responsible for all the liabilities of the abolished corporation. State v. Goodgame, 91 Fla. 871, 108 So. 836, 47 A. L. R. 118. .

There is no interim of time between the abolition of the old and the establishment of the new municipal government. State v. Couch, 139 Fla. 353, 365, 190 So. 723.

Incorporation.-While the legislature has power under this section, to incorporate cities and towns by special act, there is no reason why ' such incorporation by special law may not be done subject to the operative provisions of a general law. providing a method by which "any" city or town may surrender its franchise, subject to a vote of its inhabitants, provided the debts and obligations of such city or town are nof thereby impaired. Olds v. State, 101 Fla. 218, 133 So. 641.

Applied in State v. Tampa, 137 Fla. 29, 50, 187 So. 604; State v. Ft. Pierce, 133 Fla. 424, 429, 182 So. 799; American Bakeries Co. v. Haines City, 131 Fla. 790, 820, 180 So. 524; State v. Coleman, 131 Fla. 892, 180 So. 357; State v. Cedar Keys, 122 Fla. 454, 165 So. 672; Lakeland v. Amos, 106 Fla 873, 143 So. 744; State v. Holloway, 105 Fla. 616, 619, 142 So. 221; Daytona Beach v. State, 101 Fla. 560. 562, 132 So. 490; Bradenton v. Seaboard Air Line R. Co., 'too Fla. 606, 130 So. 21; State v. Tampa, 88 Fla. 196, 221, 102 So. 336; St. Peters· burg v. Pinellas County Power Co., 87 Fla. 315, 321, 100 So. 509; State v. Burr, 79 Fla. 290, 292. 84 So. 61; Daytona Beach v. King, 132 Fla. 273, 181 So. 1, 116 A. L. R. 880; State v. Bovnton, Beach, 129 Fla. 528, 177 So. 327. ·

Quoted in Durham v. Pentucket Groves, 138 Fla. 386, 389, 189 So. 428; Atlantic Coast Line R. Co. v. Lakeland, 94 Fla. 347, 365, 115 So. 669 (con. op.); Braden town v. State, 88 Fla. 381, 383, 102 So. 556, 36 A. L. R. 1297; Kaufman v. Tallahassee. 84 Fla. 634, 637, 94 So. 697, 30 A. L. R. 471; State v. Railroad Com'rs, 79 Fla. 526, 533, 84 So. 444; Harris v. Hialeah, 10 F. Supp. 546; LaTour v. Stone, 139 Fla. 681, 686, 190 So. 704; State v. Miami, 103 Fla. 54, 137 So. 261.

Cited in State v. Harris, 120 Fla. 555, 562, 163 So. 237; State v. Tampa, 148 Fla. 6, 3 So. (2d) 484; Ocean Beach Hotel Co. v. Atlantic Beach. 147 Fla. 445, 2 So. (2d) 879; Augustine v. Middleton, 147 Fla. 529, 537, 3 So. (2d) 153; State v. Ft. Myers, 145 Fla. 135, 143, 198 So. 814; South Miami v. State, 143 Fla. 524, 528, 197 So. 109; South Miami v. State, 140 Fla. 740, 743, 192 So. 624; Hunter v. Green, 142 Fla. 104, 194 So. 379; State v. Tallahassee, 142 Fla. 476, 482, 195 So. 402 (con. op.); Hughes v. Davenport, 141 Fla. 382, 389, 193 So. 291; McCormick v. Baune-Theau, 139 Fla. 461, 468, 190 So. 882 (con. op.); State v. Barber, 139 Fla. 706,· 710, 190 So. 809; Klich v. Miami Land, etc., Co., 139 Fla. 794, 801, 191 So. 41; Orr v. Quigg, 135 Fla. 653, 658, 185 So. 726; Ccne v. State, 137 Fla. 417, 422, 189 . So. 44; Daytona Beach v. King, 132 Fla. 273, 181 So. 1, 116 A. L. R. 880; Winter Haven v. Klemm & Son, 132 Fla. 334, 181 So. 153; State v. King, 132 Fla. 520, 523, 180 So. 770; DuBase v. Kelly, 132 Fla. 548, 181 So. 11; Orlando v. Evans, 132 Fla. 609, 182 So. 264; State v. Stoutamire, 131 Fla. 698, 70u, 179 So. 730; Hialeah v. State, 128 Fla. 46, 174 So. 843; Floyd Fruit Co. v. Florida Citrus Comm., 128 Fla. 565, 578, 175 So. 248, 112 A. L. R. 562; State v. Board of Public Instruction, 129 Fla. 235, 176 So. 96; Coral Gables v. State, 129 Fla. 834, 838, 177 So. 290; State v. West Palm Beach 127 Fla. 849, 174 So. 334; In re Opinion of Justices, 121 Fla. 157, 163 So. 410; State v. Lake Placid, J21 Fla. 839, 164 So. 531; Williams v. Dunnellon. 125 Fla. 114, 169 So. 631; State v. Harvey, J25 Fla. 742. 768, 170 So. 153; State v. Emerson, 126 Fla. 576, 579, J71 So. 663; Pensacola v. Lawrence, 126 Fla. 830, 171 So. 793; State v. Alsop, 120 Fla.

[ 1161 ]

Art. VIII, § 9 CONSTITUTION OF THE STATE OF FLORIDA Art. IX,§ 1

628, 632, 163 So. 80; State v. Broward County Port Authority, 118 Fla. 42, 68, 151 So. 416, 718, 158 So. 62; San Mateo City v. State, 117 Fla. 546, 158 So. 112; State v. O'Quinn, 114 Fla. 222, 232, 154 So. 166; Boynton Beach v. State, 108 Fla. 92, 145 So. 858; Heriot v. Pensacola, 108 Fla. 480, 146 So. 654; State v. Avon Park, 108 Fla. 641, 149 So. 409; State v. Dyer, 109 Fla. 33, 41, 148 So. 201; J ackscinville v. Oldham, 112 Fla. 502, 150 So. 619; State v. Crandon, 105 Fla. 30f!, 311. 141 So. 177; Crumbley v. Jacksonville, 102 Fla. 408, 420, 135 So. 885, 138 So. 486; State v. Homestead, 100 Fla. 354, 357, 130 So. 28; Klemm v. Davenport, 100 Fla. 627, 635, 129 So. 904, 70 A. L. R. 156; Tampa Northern R. Co. v. Tampa, 91 Fla. 241, 244, 107 So. 364; Reeves v. State, 99 Fla. 131, 125 So. 693; Amos v. Mathews, 99 Fla. 1, 82, 126 So. 308; Jacksonville v: Smoot, 83 Fla. 575, 585, 92 So. 617; State v. Sanders, 79 Fla. 835, 85 So. 333; Hyman v. Dillon, 79 Ffa. 673, 691, 84 So. 666 (dis. op.).

II. APPLICATIONS.

This section contemplates that vacant lands adjacent to improved lands may be incorporated to meet the needs of the municipality for future reasonably expected growth and authorized activities. But such organic provision does not authorize, but by implication forbids, the incorporation of large areas of rural lands that are not suited or needed for any lawful municipal purposes. Winter Haven v. Klemm & Son, 141 Fla. 75, 86, 192 So. 646.

Under this section the legislature may by law authorize a municipality to make a contract for rates to be charged for public service rendered to the municipality or its inhabitants, and ~uch a contract when duly authorized and entered into will be binding on the parties thereto. Southern Utilities Co. v. Palatka, 86 Fla. 583, 99 So. 236.

The legislature has the power to pass special laws without advertisement as required in the proviso of § 21 of Art. III of the Constitution. Clay v. Eustis, 7 F. (2d) 141, 142. ,

Examiners appointed by comptroller to examine financial department of city held not officers within meaning of section. Coen v. Lee, 116 Fla. 215, 218, 156 So. 747.

The controlling provision of this section authorizing an examination into the affairs of the financial department of the city government by state authorities, violates constitutional provisions contained in this section. Id.

Chapter 15707 purporting to abolish a municipality was held invalid since it did not provide for the payment of the debts of the city. State v. Peacock, 112 Fla. 671, 673, 151 So. 4.

Annexation.-The authority of the legislature under this section to establish and abolish municipalities includes the power to annex, by legislative enactment, contiguous territory to an existing municipality, effective upon an affirmative vote at an election therein provided for, or without such an election. Nabb v. Andreu, 89 Fla. 414, 104 So. 591.

under this section, remove statutory limits on taxation for bond paying purposes so that refunding bonds issued under § 6, Art. IX of the Constitution may not be affected by tax limitations in force when the bonds being refunded were issued. State v. Punta Gorda, 144 Fla. 73, 76, 197 So. 734.

Other Illustrations.-Section held to authorize a covenant in refunding bonds, in State v. Miami, 103 Fla. 54, 137 So. 261; State v. Auburndale, 144 Fla. 210, 212, 197 So. 739; establishing a pension system, in Voorhees v. Miami, 145 Fla. 402, 408, 199 So. 313; fixing salaries of its own members of governing body, in Meeks v. Fink, 82 Fla. 244, 89 So. 543; zoning ordinances on intoxic~nts, in State v. Fuller, 134 Fla. 212, 214, 183 So. 726; State v. Fuller, 136 Fla. 788, 794, 187 So: 148; statute referring to practice in a court of justice when a city becomes a litigant, in Skinner v. Eustis, 147 Fla. 22, 28, 2 So. (2d) _16, 135 A. L. R. 359; exception to the ordinary debt limitations usually found in city charters, in Charles v. Miami, 125 Fla. 110, 113, 169 So. 589; Williams v. Dunnellon, 125 Fla. 114, 128, 169 So. 631; vesting in the city of St. Augustine the right to build, erect, construct, maintain and operate toll bridges, ;n Day v. St .. Augustine, 104 Fla. 261, 139 So. 880; creation of a special election board, in State v. Johnson, 102 Fla. 19, 135 So. 816; West v. Lake Placid, 97 Fla. 127, 120 So. 361; regulating the running at large of animals, in Morgan v. Lakeland, 90 Fla. 525, 107 So. 269.

HISTORY. § 9

.Section added by amendment Senate Joint Resolution 113, Acts of 1933, adopted at general election 1934.

HISTORY. § 10

Secti~n added by amendment, Senate Joint Reso_luhon 429, Acts of 1935, adopted at general electiOn 1936.

ARTICLE IX. TAXATION AND FINANCit.

HISTORY. § 1

Original section of Constitution 1885; amended by Senate Joint Resolution 358, Acts of 1923, adopted at general election 1924.

ANNOTATION. I. Generally.

II. Uniform and Equal Rate and Just Valuation. III. Intangible Property. IV. Exemptions.

Cross References. As to tax~s for county and municipal purposes,

see annotation to § 5 of this Article. For constitutional amendment exempting homestead property, see Art. X, § 7.

I. GENERALLY. This section refers to ad valorem' taxes. Miami

Beach College Corp. v. Tomlinson, 143 Fla. 57, 196 So. 608.

As to prohibition of ad valorem taxes for state purposes, see § 2 of this Article.-Ed. note.

Housing Authorities Law.- Chapters 17981, 17983 Housing Authorities Law (CC. 421 and 423), 'held not violative of this section, in Higbee v. Housing Authority, 143 Fla. 560, 573, 197 So. 479. It does not apply to excise taxes. Jacksonville

may Gas Co. v. Lee, 110 Fla. 61, 148 So. 188; State v. In municipal bond refunding cases, statutes [ 1162 I

Art. IX, § 1 TAXATION AND FINANCE Art. IX,§ 1

Coleman, 122 Fla. 434;, 165 So. 569; Floyd Fruit Co. v. Florida Citrus Comm., 128 Fla. 565, 175 So. 248, 112 A. L. R. 562; Gray v. Central Florida Lbr. Co., 104 Fla. 446, 140 So. 320, 141 So. 604: Liggett Co. v. Amos, 104 Fla. 609, 141 So. 153.

The legislature may impose excise or license taxes within its discretion. Coleman v. State, 144 Fla. 488, 494, 198 So. 695.

87, 172 So. 484; State v. Haines City, 127 Fla. 239, 169 So. 383; State v. Cone, 130 Fla. 158, 182, 177 So. 854; Sarasota v. Skillin, 130 Fla. 724, 729, 178 So. 837; Crowder v. Philips, 146 Fla. 428, 1 So. (2d) 629; Amos v. Gunn, 84 Fla. 285, 358, 94 So. 615 ; Tampa Southern R. Co. v. Bradenton, 122 Fla. 173, 180, 165 So. 679; Groves v. Board of Public Instruction, 109 F. (2d) 522.

Intrinsic equality and uniformity, essential in the imposition of ad valorem taxes, is not indis- II. UNIFORM AND EQUAL RATE AND pensable in the imposition of excise taxes. Never- JUST VALUATION. theless, in the imposition of excise taxes there This section is mandatory. Camp Phosphate must be geographic uniformity throughout the Co. v. Allen, 77 Fla. 341, 81 So. 503. ' taxing district to which the particular tax applies, It <;!early indicates what shall be considered the and such a tax can neither be laid nor apportioned taxable property in the state; and when a statute amongst different taxing districts so as to in ef- authorizes the levy of taxes against the taxable feet tax the people of one taxing district for the property or against the property in a taxing unit, benefit of another taxing district for a purpose in the property referred to herein is meant, unless a which the people of the district taxed have no less comprehensive inclusion of property to be concern. Amos v. Mathews, 99 Fla. 1, 126 So. taxed is stated in the act. Long v. St. John, 126 308. Fla. 1, 10, 170 So. 317, 109 A. L. R. 809.

Nor license fees. Jackson v. Neff, 64 Fla. 326, The purpose is to adjust the burden of taxation 60 So. 350; Hiers v. Mitchell, 95 Fla. 345, 116 So. so that every taxpayer may be required to con-81; . State v. Milburn, 118 Fla. 211, 158 So. 884; tribute no more and no less than his share of the Florida Sugar Distributors v. Wood, 135 Fla. 126, taxes in proportion to the value of his property. 131, 184 So. 641. Camp Phosphate Co. v. Allen, 77 F la. 341, 348, 81

Nor special assessments for local benefits. Ban- S.o. 503. nerman v. Catts, 80 F la. 170, 85 So. 336. See also, And where all taxable property has been asMartin v. Dade Muck Land Co. , 95 Fla. 530, 116 sessed on a basis of 50 percent of its true cash So. 449; Edwards v. Ocala, 58 Fla. 217, 50 So. value the purpose has not been defeated, and such 421; Anderson v. Ocala, 67 Fla. 204, 64 So. 775, infraction oi statutes requiring assessment at full 52 L. R. A. (N. S.) 287. value affords no ground for a court of equity to

The constitutional requirement of equality and declare the assessment void. Hackney ,. . Meuniformity relates to general taxation, not to Kenny, 113 Fla. 176, 192, 151 So. 524; Camp special assessments, although special asses;ments Phosphate Co. v. Allen. 77 Fla. 341, 81 So. 503. must of course be jmposed so that the burden on The elements of uniformity and equality apply each parcel of land subject to the assessment will only to the rate of taxation. They have no relabear a just proportion to that imposed upon all tion whatever to the tax lien or the valuation. other parcels similarly situated and included with- Rorick v. Reconstruction Finance Corp. , 144 Fla. in the specially assessed area. Lainhart v. Catts, 539, 543, 198 So. 494. 73 Fla. 735, 75 So. 47; Martin v. Dade Muck Land The rate of all ad valorem taxation in a taxing Co., 95 Fla. 530, 116 So. 449; Edgerton v. Green unit shall be equal and uniform, and the valuation Cove Springs, 19 Fla. 140; Stewart v. DeLand, of all taxable property for ad valorem taxation etc., Dist., 71 Fla. 158, 71 So. 42; Pinellas Park must be just. The principles established for state Dist. v. Kessler, 69 F la. 558, 68 So. 668; Whitney taxation of property apply to the taxation of propv. Hillsborough County, 99 F la. 628, 640, 127 So. erty for municipal purposes. Ft. Myers v. Heit-486. man, 148 Fla. 432, 434, 4 So. (2d) 871.

Quoted in Harjim v. Owens, 52 F. (2d) 530, The rates of state taxation must be equal and 533, reversed in 64 F. (2d) 306. uniform throughout the entire state, though the

Cited in Boatright v. Jacksonville, 117 Fla. 477, rates of tax levies for county purposes may be 492, 158 So. 42; State v. Lee, 121 Fla. 360, 372, ll'i3 different in the several counties, each county beSo. 859; Marianna v. Davis, 124 Fla. 145, 169 So. ing a separate taxing unit. State v. ,O'Quinn, 114 50; State v. Haines City, 126 Fla. 561, 169 So. 383; Fla. 222, 227, 154 So. 166. See also, Howey Co. Everglades Sugar, etc., Co. v. Bryan, 81 Fla. 75, v. Williams, 142 Fla. 415, 416, 195 So. 181; Jordon 112, 87 So. 68; Lewis v. Leon County, 91 Fla. 118, v. Duval County, 68 Fla. 48, 66 So. 298, cited in 157, 107 So. 146 ; State v. Stewart, 97 Fla. 69, so, Brown v. Winton, 143 Fla. 478, 485, 197 So. 543. 120 So. 335, 64 A. L. R. 1307; West v. Lake Placid. . Apportionment of property of railroad com-97 Fla. 127, 120 So. 361; Rawls v. State, 98 Fla. panies among tax units.-See Lee v. Atlantic Coast 103, 122 So. 222; State v. Harris, 120 Fla. 555, 163 Line R. Co., 145 F la. 618, 200 So. 71; Atlantic So. 237; State v. Cedar Keys, 122 Fla. 454, 461, 165 Coast Line R. Co. v. Amos, 94 Fla. 588, 115 So. So. 672; Rickey v. Wells. 123 Fla. 284, 2\Jl, 166 315. So. 817; American Bakeries Co. v. Haines City. Geographic uniformity and equality is not re-131 Fla. 790, 793, 180 So. 524; Starkey v. Carson, quired in the application of tax funds to public 138 Fla. .301, 189 So. 385; Jones v . . Arcadia, 147 purposes that are geographically not uniform or Fla. 571, 577, 3 So. (2d) 338; State v. Board of equal. Amos v. :M;athews, 99 Fla. 65, 113, 1.26 So. Equalizers, 84 Fla. 592, 620, 94 So. 681, 30 A. L. 308 (con. op.). · R. 362; State v. Eau Gallie, 99 Fla. 579, 582, 126 Apportionment of gasoline tax.-Section 8 (b), So. 124; Sanford v. Dial, 104 Fla. 1, 8, 142 So. Chapter 15659, Acts 1931 (§ 208.11, Fla. Stats .. 233; Ranger Realty Co. v. Hefty, 112 Fla. 654. 152 1941), allotting and making apportionment of on~ So. 439; State v. Miami, 116 Fla. 517, 524, 157 So. cent of the second gas tax to the credit of the 13; State v. Lee, 123 Fla. 720, 723, 167 So. 530; several counties on the basis of the proportion --that Haines City Heights v. Haines City, 127 Fla. 8(), the area any county may bear to the area of all

[ 1163 1

Art. IX, § 1 CONSTITUTION OF THE STATE OF FLORIDA Art. IX, § 1

the counties; one cent of said second gas tax to the credit of the several counties on the bas1s that the population of any county may bear to the population of the state; and one cent of second gas tax to the credit of the several counties on the basis that the contribution made by a county to construction of state roads in such county bears to the contribution made for such purpose by all the counties; is not violative of this section. Carlton v. Mathews, 103 Fla. 301, 137 So. 515.

This section contemplates proper classifications of property in making just valuations for taxation. State v. Avon Park, 108 Fla. 641, 660, 149 So. 409. citing Hayes v. Walker, 54 Fla. 163, 44 So. 747; State v. Sarasota, 92 Fla. 563, 109 So. 473; State v. St. Petersburg, 106 Fla. 742, 144 So. 313, 671, 145 So. 175; State v. Miami, 103 Fla. 54, 137 So. 261.

Valuation may be fixed as the legislature directs. Rorick v. Reconstruction Finance Corp., 144 Fla. 539, 543, 198 So. 494.

The legislative discretion implied in the power and duty to prescribe such "regulations" as shall secure a "just" valuation for taxation purposes of all property subject to taxation necessarily embraces the •method to be used in the determination of a "just" valuation of all property, both real and personal, for purposes of taxation. Maxcy v. Federal Land Bank, 111 Fla. 116, 118, 150 So. 248, 151 So. 276.

"Valuations for taxation must have a jusr relation to the real and known value of the property assessed, and not to some unknown and specul~tive value, and there must be no substantial inequality in valuations in various kinds ·and itemsof property that is subject to tax, etc. Camp Phosphate Co. v. Allen, 77 Fla. 341, 81 So. 503." Colonial Inv. Co. v. Nolan, 100 Fla. 1349, 1358, 131 So. 178. See also, Graham v. West Tampa, 71 Fla. 605, 71 So. 926.

Judicial review of legislative regulations.-Courts do not sit as boards of revision in matters relating to legislative regulations as to just valuations of property. Maxcy v. Federal Land Bank, 11.1 Fla. 116, 118, 150 So. 248, 151 So. 276.

Where there is an intentional, arbitrary and systematic undervaluation of ·some of the taxable property in the same class with other property, it contravenes the constitutional rights of one whose property is intentionally and arbitrarily over· valued. But more errors of judgment by tax officials in making assessm en ts of property for taxation will not support a claim of unjust discrimination. Camp Phosphate Co. v. Allen, 77 Fla. 341, 81 So. 503.

Where lands are illegally included in a municipality, and are taxed for municipal purposes even by classification to secure just valuations, such invalid inclusion may not be cured by classifications of property to secure just valuations for taxation in the municipality, since the lands, when illegally included in the municipality, cannot lawfully be taxed at all for municipal purposes. State v. Avon Park, 108 Fla. 641, 660, 149 So. 409.

lawful municipal purposes. Winter Haven v. Klemm & Son, 141 Fla. 75, 87, 192 So. 646.

Whether or not the added valuation to land oc. casioned by the planting thereon of trees, shall be presently taken into consideration for purpcses of arriving at a "just" valuation of the lands for pur· poses of taxation, or shall be postponed until a later date when the trees shall have reached their greatest value as an asset through being nurtured t9 maturity, is plainly a matter lying within the domain of legislative policy. and Fla. Stats, 1941, § 193.20 does not provide for an unconstitutional exemption of part of the value of lands for purposes of taxation. Maxcy v. Federal Land Bank, 111 Fla. 116, 121, 150 So. 248, 151 So. 276.

Classification of refunding bonds into separate series and support of each series by taxes on different territory within the city limits.-This section is not violated by the issuance of refunding . obligations classified according to series, the obligations of each series to be payable from taxes levied upon property located within different parts of the territorial !imits of the mu'nicipality, where such classification is made for the purpose of con· tinuing without change the tax liability of different parts of the municipality as. such tax liability exists with respect to the outstanding indebtedness to be refunded by virtue of statutory provisions incident to the annexation of additional territory to suc11 municipality. State v. Clearwater, 125 Fla .. 73, 78, 169 So. 602; State v. St. Petersburg, 127 Fla. 509, 173 So. 434. See also, State v. Auburndale, 144 Fla. 210, 197 So. 739.

Double taxation may not violate constitutional lit;nitations where uniformity of rates, just valua· tions and due process are observed and no unjust discriminations are imposed. ]11ckson v. N f:'ff, 64 Fla. 326, 60 So. 350.

"Taxation" embraces both assessment and collection. It would be simply burlesque to say that the assessment should be uniform and equal, but the collection may be variable and unequal. Messer v. Lang, 129 Fla. 546, 560, 176 So. 548, 11R A. L. R. 1073.

All statutes regulating the assessment and collection of taxes for state and county purposes shall be general laws of uniform operation throughout all the counties of the state. State v. O'Quinn, 114 Fla. 222, 227, 154 So. 166.

Liability for ad valorem taxes does not depend upon a proper assessment of particular property or of all taxable property. Hackney v. McKenny, 113 Fla. 176, 189, 151 So. 524.

If complainant duly made his tax return and discovered taxable property of others was not .being duly assessed for taxation, with the result that his taxes would thereby be substantially increased, his remedy was upon proper allegations and proofs in an appropriate tribunal, judicial or executive. to require the assessing officers to do their duty. Hackney v. McKenry, 113 Fla. 176, 192, 151 So. 524.

Penalties for delinquency.-There is no constitutional requirement that all penaltie£ for delinquency 'shall be identical. Rosenhouse v.

When unimproved lands are duly incorporated Holly, 100 Fla. 1394, 1398, 131 So. 389. to meet the reasonable needs of future municipal The legislature may require the making and expansion and authorized activities, the organic filing of sworn tax returns and impose a penalty property rights of the owners of such unimproveo for failure to make such returns, but such a penalty lands may be conserved by just valuations of such must not consist of an arbitrary increase of the lands for municipal taxation purposes, when such assessed valuation of the property of the delinlandll have only potential or contingent value for quent owner beyond a just valuation and one thnt

[1164]

Art. IX, § 1 TAXATION AND FINANCE Art. IX,§ 1

is just with respect to similarly situated property of like nature. Colonial Inv. Co. v. Nolan, 100 Fla. 1349, 131 So. 178.

Making up deficienc;ies of other taxpayers.-In addition to his proportion of a laid tax a taxpayer may be required to pay an additional amount to make up deficiencies caused by the neglect or inability of other taxpayers to pay their asses~ments and such additional impositions do not violate constitutional requirements of equality and uniformity. Klemm v. Davenport, 100 · Fla. 627, 129 So. 904, 70 A. L. R. 156.

Redemption and sale of tax sale certificate~.See Culmer v. Office Realty ·Co., Ui7 Fla. 675, 189 So. 52; Moye v. State, 112 Fla. 516, 151 So. 501: Messer v. Lang, 129 Fla. 546, 176 So. 548, 113 A. L. R. 1073; State v. Culbreath, 140 Fla. 634. 192 So. 814; Rosenhouse v: Holly, 100 Fla. 1394. 13t So. 389; State v. Butts, 111 Fla. 630, 149 So. 746, 89 A. ·L. R. 946; State v. O'Quinn, 114 Fla. 222, 154 So. 166; Henderson v. Leatherman, 120 Fla. 496, 163 So. 310.

Laches prevented assertion in foreclosure pro· ceedings that certificates· were void for discrimination in assessing realty. Herbert v. Tax Securities Co., 146 Fla. 112, 1 So. (2d) 183.

. As to laches precluding setting up failure of town to assess personalty, see Rio Vista Hotel, etc., Co. v. Belle Mead Develop. Corp . . 132 Fla. 88, 182 So. 417.

Acts held valid.-Chapter 101.40, Acts 1925, in Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486; § 205.12, in Lee v. Lang, 140 Fla. 782, 1\12 So. 490; §§ 421.01, et seq., in Lott v. Orlando, 142 Fla. 338, 196 So. 313; Acts 1915, C. 6946, § 4, in Rushton v. State, 75 Fla. 422, 78 So. 345: Acts 1895, C. 4496, in Tampa ·v. Mugge, 40 Fla. ~26, 24 So. 489; Acts 1889, C. 3953, in Pratt v. Jacksonville, 36 Fla. 550, 18 So. 362.

Section 7 of C. 17894 (§ 515.08, Fla. Stats .. 1941). giving the laundry board authority to collect for the purpose of regulation and the expense of ad· ministration of the act is not an act to raise monev for governmental purpose~, and uniformity of tax;tion is not required. Robinson v. Florida Dry Cleaning, ' etc., Board, .141 Fla. 899, 906, 194 So. 2&9.

Acts 1929, C. 1457!! providing for ad valorem taxes on motor vehicles provided for a uniform and equal rate of ad valorem taxation throughout the state for state purposes and throughout the various subordinate taxing units respe('tively.' Miami Transit Co. v. Amos, 115 Fla. 842 844 156 So. 279. ' '

The turning over by the county to municioalities of one-half of the money raised from taxabl~ property in incorporated cities and towns, from the special road tax, as directed by law, does .not destroy equality or uniformity of the county assessment. County Com'rs v. Jacksonville, 36 Fla. 196, 18 So. 339, 29 L. R. A. 416. .

Acts held invalid.-Chapter 15060, Acts 1931, in State v. Rosenthal, 109 Fla. 363, 148 So. 769: Acts 1929, C. 14430, in Hoadley v. Tarpon Springs. 99· Fla. 130, 125 So. 912.

III. INTANGIBLE PROPERTY;

longer subject to general property taxation in the same class as tangible personal and real property and was not self-executing_. Draughon v. Heitman, 124 Fla. 24, 28, 168 So. 838.

It is not self executing or mandatory, but merely confers upon the legislature permissive authority to provide for special rates of taxation on intangible property. Porter v. ·First Nat. Bank, 96 Fla. 740, 744, 119 So. 130, 519.

And gives the legislature permission to make an exception to the general rule of uniformity and equality as to the rate of taxation on all property not exempt from taxation. Porter v. First Nat. Bank, 96 Fla. 740, 744, 119 So. 130, 519.

Until the legislature exercises this permissive authority, the organic rule of uniformity arid equality in the rate of taxation on all property remains in force. Porter v. First Nat. Bank, 96 Fla. 740, 119 So. 130, 519; West Virginia Hotel Corp. v. F0ster Co., ·101 Fla. 1147, 1154, 132 So. 842.

Effect of legislative omission to tax intangible personal property. - The separate constitutional classification of intangibles so takes intangibles out of the class of general taxable real and tangible personal properties that no general property taxpayer can legally avoid the payment of his general property taxe.s otherwise lawfully levied and assessed on the ground of alleged discrimination by legislative omission to tax intangible properties in any year that intervened between the 1924 ratification of the intangible property tax amendment and the 1931 Act which first put that amendment into practical operation. Draughon v. Heitman, 124 Fla. 24, 29, 168 So. 838.

Intangible property is personal property for tax valuation purposes. Wood v. Ford, 148 Fla. 66, 79, 3 So. (2d) 490.

National bank shares as subject to ta~ation.See Roberts v. American Nat. Bank, 94 Fla. 427, 115 So. 261; Porter v. First Nat. Bank, 96 Fla. 740, 119 So. 130, 519; Roberts v. American Nat. Bank, 97 Fla. 411, 121 So. 554.

IV. EXEMPTIONS.

The power ·to tax does not include the power to exempt, i:emit, or compromise taxes as it is competent to confer such powers only for designated purposes such as those enumerated in this section. St. Lucie Estates v. Ashley,, 105 Fla. 534, 536, 141 So. 738.

And the constitution must be construed as a limitation upon the power of the legislature to provide for exemption from taxation of any classes of property, except those particularly mentioned classes specified in the organic law itself. Maxcy v. Federal Land Bank, 111 Fla. 116, 118, 150 So. 248, 151 So. 276.

This section authorizes only specific classes of property to be exempted by law for stated purposes (Maxcy v. Federal Land Bank, 111 Fla. 116, 150 So. 248, 151 So. 276) while § 16, Art. XVI, may be self-executing and cannot be changed by legislative enactment. Fleischer Studios v, Pa:?C· son, 147 Fla. 100, lOS, 2 So. (2d) 293, See also, Lakeland v. Amos, 106 Fla. 873, 143 So. 744.

It doe~ not exclude Indirect excise taxes. Orange, State Otl Co. v. Amos, 100 Fla. 884, 130 So. 707:

Cross reference.-As to intangible personal prop- West Palm Beach v. Amos, 100 Fla. 891, 130 So. erty taxation, see Fla. Stats. 1941, §§ 199.01, et seq. 710.

The Amendment of 1924 separately classified in- It prohibits municipal contracts providing for tangibles for tax purposes and made the same no exemption from taxation or ·for the remission of

[ 1165 1

Art. IX, § 2 CONSTITUTION OF THE STATE OF FLORIDA Art. IX, § 2

taxes levied. Tampa Shipbuilding, etc., Co. v. Tampa, 102 Fla. 549, 136 So. 458.

Illustrations and references.-See Art. XVI, § 16 and annotation ; Fla: Stats. 1941, § 192.06 and annotation.

See Smith v. Housing Authority, 148 Fla. 195, 3 So. (2d) 880; State v. Cahoon, 106 Fla. 299, 143 So. 253.

Property of housing authority organized under C. 421, Fla. Stats., 1941, was exempt from ad valorem taxes. Marvin v. Housing Authority, 133 Fla. 590, 183 So. 145.

Property of educational institution which is rented wholly or in part is not exempt from taxation. Amos v. Jacksonville Realty, etc., Co., 77 Fla. 403, 407, 81 So. 524.

§ 2 HISTORY.

Original section of Constitution 1885; amended by Senate Joint Resolution 141, Acts of 1937, adopted at general election 1938; amended by Senate Joint Resolution 69, Acts' of 1939, adopted at general election 1940.

ANNOTATION. This section imposes the mandatory duty on the

legislature to raise and appropriate sufficient moneys to defray in full the current expenses of the state authorized to be incurred by the state's officials. State v. Lee, 121 Fla. 360, 386, 163 So. 859. See Allison Realty Co. v. Graves Inv. Co., 115 Fla. 48, 62, 155 So. 745.

So. 900; Amos v. Mosley, 74 Fla. 555, 77 So. 619, L. R. A. 1918C, 482.

The legislature may not subordinate revenues raised to defray the expenses of the state for each fiscal year to permissive appropriations made for other than state functions or state expenses. State v. Lee, 121 Fla. 360, 391, 163 So. 859.

The legislature is without constitutional authority to make available for actual disbursement a permissive legislative contribution out of the general revenue fund to the county school fund, even though an appropriation for the latter purposes is constitutionally authorized by § 9 of Art. XII, until it has first provided for actually raising sufficient revenues to pay in full the lawfully fixed salaries of public officers and the legally established current expenses of the state, as is inescapably required by this section and by § 30 of Art. III. Id.

"Current expenses of the state" comprehends any claim or demand enforceable by mandamus against the state's general revenue fund by reason of a legislative act of appropriation therefor, general or special. State v. Lee, 121 Fla. 360, 395, 163 So. 859.

This section includes such expenditures as may be authorized by the legislature and which are not prohibited by the constitution. Carlton v. Mathews, 103 Fla. 301, 137 So. 815, cited in State v. Cone, 140 Fla. 1, 8, 191 So. 50.

As held in Cheney v. Jones, 14 Fla. 587,._ revenues raised under this section for state expenses cannot be used for expenses that are forbidden by the constitution. State v. Brevard County, 99 Fla.

And is a limitation on the power of the legisla- 226, 233, 126 So. 353. ture to raise revenue, which can only be done to The construction and maintenance of state roads defray the expenses of the state. Amos v. Math- are among the current expenses of the state, to deews, 99 Fla. ~5, 90, 126 So. 308. fray which the constitution commands the legis-

It contemplates that sufficient revenues shall be · latur.; to provide for raising sufficient revenue for raised each year to defray the expenses of the each fiscal year. Carlton v. Mathews, 103 Fla. 301, state for that year and that during any fiscal year 137 So. 815; In re Advisory Opinion to Governor, no indebtedness for expenses ·of the state shall be 94 Fla. 967, 983, 114 So. 850. incurred substantially in excess of the revenues The "second gas tax" was for a current state that may be provided for that year. Hathaway expense, viz., the constructioa and maintenance of v. Munroe, 97 Fla. 28, 34, 119 So. 149. a system of state roads. State v. Cone, 130 Fla.

The constitution contemplates that state ex- 158, 165, 177 So. 854. penses shall not exceed the revenue raised for each As to apportionment of gas tax, see Carlton v. fiscal year, and that provision for raising revenue Mathews, 103 Fla. 301, 137 So. 815. See also, sufficient to defray the expenses of the state for Fla. Stats., 1941, § 208.11 and annotation thereto. each fiscal year shall be made by the legislature The legislature has the power i{ it sees fit to take by means other than borrowing money by issuing over the building and maintenance o~ all roads of state bonds or promises for the state to pay the the state; and should the legislature see fit to examount borrowed in. the future, with interest. In ercise this power then under this section, it may re Advisory Opinion to Governor, 94 Fla. 967, 983, raise revenue sufficient to build · such roads; be-114 So. 850. cause, in so doing, the legislature will be raising

It does not require every state expense to be revenue to defray state expenses. Carlton v. fully paid each fiscal year; it merely commands Mathews, 103 Fla. 301, 343, 137 So. 815. the legislature to provide for raising revenue suffi- State bonds cannot legally be issued to pay for dent to defray the expenses of the state "for each roads constructed by the counties and districts fiscal year," Carlton v. Mathews, 103 Fla. 301, and taken over by the state; but provision may be 137 So. 815, cited in State v. Cone, 140 Fla. 1, 9, made for raising revenue annually to pay any and 191 So, 50, all state dpenses, including amounts or install-

It is not an indication of priorities in the liens of ments ,that should reasonably be paid for roads taxes assessed in different years. Allison Realty taken over by the state for state purposes. Howey Co. v. Graves lnv. Co., 115 Fla. 48, 62, 155 So. 745. Co. v. Williams, 142 Fla. 415, 421, 195 So. 181.

The section does not prohibit continuing tax A contract under fi 341.20, Fla. Stats., 1941, for levies and appropriation~ for continuing state ex- constructing state highways is not a violation of 'penses. Carlton v. Mathews, 103 Fla. 301, 137 So. thia section, when the construction is to be paid 815, cited In State v. Cone, 140 Fla. 1, 8, 191 for from funds already provided for by law and So. 50, which will probably be in hand before the con-

A continuing appropriation does not violate struction is completed. Hathaway v. Munroe, 97 this section. Mayo v. Mathews, 112 Fla. 680, 150 Fla. 28, 34, 119 So. 149.

[ 1166 ] .

Art. IX, § 3 TAXATION AND FINANCE Art. IX, § 3

Tax for payment of road and bridge bonds.See Amos v. Mathews, 99 Fla. 1, 126 So. 308, cited in State v. Vickers, 110 Fla. 157, 164, 148 So. 526; State v. Brevard County, 99 Fla. 226, 126 So. 353.

Pensions tawfuily allowed by the legislature may be deemed legitimate state expenses. In re Advisory Opinion to Governor, 98 Fla. 843, 846, 124 So. 728.

Special assessments for local benefits do not come within this section. Bannerman v. Catts, 80 Fla. 170, 85 So. 336; Lainhart v. Catts, 73 Fla. 735, 75 So. 47.

Quoted in State v. Green, ' 95 Fla. 117, 126, 116 So. 66.

Cited in Rorick v. Reconstruction Finance Corp., 144 Fla. 539, 198 So. 494; State v. Lee, 134 Fla. 59, 80, 183 So. 782; Lake Worth v. McLeod, 112 Fla. 843, 151 So. 318; Sanford v. Dial, 104 Fla. 1, 8, 142 So. 233; Thursby v. Stewart, 103 Fla. 990, 1017, 138 So. 742; In re Advisory Opinion to Governor, 103 Fla. 668, 669, 137 So. 881; State v. Board of Equalizers, .48 Fla. 592, 620, 94 So. 681, 30 A. L . R. 362; Board of Public Instruction v. Union School Furnishing Co., 100 Fla. 326, 331, 129 So. 824; Lewis v. Leon County, 91 Fla. 118, 157, 107 So. 146.

§ 3 HISTORY.


counties and cities, and the delegated exercise of that power through a statutory administrative board possessing no other status. Whitney v. HiJlsborough County, 99 Fla. 628, 643, 127 So. 486

A legislative enactment purporting to authorizL an administrative body to levy a tax without definitely limiting the rate of the levy or the amount to be collected, or the indebtedness that may be incurred to be paid by the tax , is an unconstitutional attempt to delegate the legis lat ive power of taxation; and such an enactment is not a law wi thin this section. Stewart v. Daytona, etc., Smyrna Dist., 94 Fla. 859, 867, 114 So. 545. See Winter Haven v. Klemm & Son, 132 Fla. 334, 181 So. 153; State v. Bass, 96 Fla. 478, 118 So. 212.

A specially created district, established by or under the authority of a statute, has no inherent power to tax. It has no power to tax except in so far as that power is clearly conferred or indicated by law, either organic or statutory. Atlantic Coast Line R. Co. v. Amos, 94 Fla. 588, 115 So. 315.

When a board of county commissioners is by statute authorized to "cause to be assessed and collected" a district tax for authorized district purposes, the county commissioners may ·by resolution require the tax assessor of the county to assess, and the tax collector of the county to collect, the authorized district tax for district purposes. Taylor v. Williams, 142 Fla. 402, 408, 195

ANNOTATION. So. 175. This section · does not conflict with § 8 of Art. Statutes conferring authority to impose taxes

VIII. Graham v. West Tampa, 71 Fla. 605, 71 must be construed strictly in favor of the taxpayer So. 926. a nd against the grantee of the power. Ex parte

It ·has no application to special assessments for Sims, 40 Fla. 432, '25 So. 280; Moseley v. Tift, 4 local improvements . Lainhart v. Catts, 73 .Fla. F la. 402; Atlantic Coast Line R. Co. v. Amos, 94 735, 75 So. 47; Bannerman v. Catts, 80 Fla. 170, 85 Fla. 588, 605, 115 So. 315. So. 336. , Right of taxpayers to maintain suit to recover

This provision does not require taxes to be illegal taxes.-See ·New Smyrna Inlet Dist.' v. "levied by law," but to be levied "in pursuance of Esch, 103 Fla. 24, 137 So. 1, 138 So. 49; Ranger law." While statutes may and do directly levy Realty Co. v. Hefty, 112 Fla. 654, 152 So. 439. taxes in some cases, yet as a general rule statutes Illustrative cases.-Statute providing for local are by the constitution either requi.red or author- municipal improvements, §§ 170.01, et seq., Fl<i. ized to provide for levying taxes. Ho.wey Co. v. Stats., 1941, held not violative of this section. Williams, 142 Fla. 415, 418, 195 So. 181. Riverside ' Park Co. v. Titusville, 113 Fla. 207, 151

Taxes are levied no,t by contract but "in pur- So. 382. suance of law." Horne v. Ocala, 143 Fla. 108, 109, Chapter 15659, Acts 1931 (§§ 208.01 et seq., Fla. 196 So. 441. Stats., 1941), providing for the levy of the second

The subject and amount or r:tte of the tax should gas tax, held not violative of this · section. Carlt0!1 be prescribed in definite, unequivocal, express v. Mathews, 103 Fla. 301, 137 So. 815. words of a duly enacted statute, otherwise th'ere Chapter 6208, Acts 1911, entitled "an act to auwould not be a definite and certain tax !€vied in thorize the counties of the state of Florida to erepursuance of law, but the tax would depend upon ate and constitute special road and bridge districts, the demands of the collecting agencies. State v. etc.," is not violative of this section. Stewart v . Sweat, 113 Fla. 797, 804,. 152 So. 432 (con. op .). DeLand-Lake Helen Special Road, etc., Dist ., 71

"When the state prescribes how or to whom Fla. 158, 71 So. 42. property shall be assessed, assessment in any other As to municipal assessments corresponding to manner or to any other person is void, and creates fiscal year, see Smythe v. Bradenton, 148 Fla. no lien upon the property. State v. Beardsley, 77 461, 4 So. (2d) 694. Fla. 803, 82 So. 794." · Atlantic Coast Line R. Co. Quoted in ] acksonviJle v. Oldham, 112 Fla. 502, v. Amos, 94 Fla. 588, 605, 115 So. 315. 150 So. 619. .

Delegation of power to tax.-The power to tax Stated in Fleischer Studios v. Paxson, 147 Fla. is a legislative power, which generally cannot be 100, 2 So. (2d) 293. delegated, though it may be exercised through Cited in Klemm v. Davenport, 100 Fla. 627, 129 subordinate boards or officers acting within pre- So. 904, 70 A. L. R. 156; West Virginia Ho1el scribed limits. There is, however, a qualification Corp. v. Foster Co., 101 Fla. 1147, 132 So. 842; of that rule in the case of counties and municipal- Henderson v. Lake Placid, 132 Fla. 190, 181 So. 1ties--.:.-a qualification clearly contemplated by ~ 5 177; Richey v. Wells, 123 Pia, 284, 166 So, 817; of this Article and well recognized generally- Lee v. Atlantic Coast Line R Co., 145 Fla. 618, which rests upon a distinction in principle between 200 So. 71; State v. Lake Maitland, 117 Fla. 706, the deleg,ated exercise of the taxing power by 1158 So. 451; Amos v. Mathews, 119 Fla. 1, 93, 126

t 1167 ]

Art. IX,§ 4 CONSTITUTION OF THE STATE OF FLORIDA Art. IX, § 5

So. 308; State v. O'Quinn, 114 Fla. 222, 154 So. 166; Lewis v. Leon County, 91 Fla. 118, 107 So. 146 (dis. op.); State v. Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A. L. R. 362 (dis. op.).

§ 4 HISTORY.


ANNOTATION. Cross reference.-As to salaries of officers, see

annotation to Art. XVI, § 3. Appropriation defined. - An appropriation of

money is the setting it apart officially, out of the public revenue for a special use or p•1rpose, in such manner that the executive officers of the government will have authority to withdraw and use that money, and no more, for that object, and for no other. State v. Lee, 121 Fla. 360, 383, 163 So. 859.

,There is a pronounced distinction between the appropriation, or the setting aside, of a sum of money for a particular thing, and the actual disbursement of funds to meet the object of such an appropriation. Id.

An appropriation may be made by setting apart and specially appropriating the money derived from a particular source of revenue to a particular use. Lainhart v. Catts, 73 Fla. 735 , 75 So. 47.

For every appropriation there shall be statutory authority or authority contained in the constitution itself for the withdrawal of the funds raised for state public purposes. In re Advisory Opinion to Governor, 114 Fla. 520, 154 So. 154; State v. Lee, 121 Fla. 360, 383, 163 So. 859.

The fact that legislation purports to authorize the payment of sums in excess of the limitations imposed by the constitution and to appropriate an amount in excess of organic limitation can not authorize such payments from state funds in violation of express provisions of the constitution. In re Advisory Opinion to Governor, 90 Fla. 708, 710, 107 So. 366.

An appropriation can not be constitutionally made by a joint resolution adopted by both houses of the legislature but which lacks an enacting clause. In re Advisory Opinion to Governor, 43 Fla. 305, 31 So. 348.

Statute need not use word "appropriation."Statutes setting apart or designating public moneys for special governmental purposes have been h.eld to be appropriations. notwithstanding the word appropriation is not used. State v. Allen , 8~ Fla. 214, 219, 91 So. 104, 26 A. L. R. 735.

The object of this provision is to prevent the expenditure of the public funds already in the treasury, or potentially therein, from th e sources provided to raise it, without the consent of the public given by their representatives in formal legislative acts. Such a provision secures to the legislature (except where the constitution controls to the contrary) the exclusive power of deciding how, when and for what purpose the public funds shall be applied in carrying on the government. Lainhart v. Catts, 73 Fla. 735. 75 So. 47; State v. Lee, 121 Fla. 360. 384, 163 So. 859.

Valid statutory authority and duty to disburse funds heid in the name of the state may be enforced in appropriate judicial proceedings. Coue v. Wakulla County, 143 Fla. 880, 882, 197 So. 5:-!6 (eq. div. ct.) .

To mandamus the comptroller to pay more than is prescribed or appropriated by law would compel him to violate this section. State v. Lee, 134 Fla. 59, 69, 183 So. 782 ( eq. div. ct.).

As to continuing appropriation, see Mayo v. Matthews, 112 Fla. 680, 150 So. 900.

Illustrations.-Chapter 15659, Acts 1931 (§§ 208.01, Fla. Stats., 1941), providing for the levy of the second gas tax, held not violative of this section. Carlton v. Mathews, 103 Fla. 301, 137 So. 815.

Acts 1927, C. 11905, relating to state purchase of a private toll highway, attempted to confer upon non-official engineers unlimited authority to fi x by estimate the amount that shall be paid from th e state treasury without audit or approval by any responsible official, and was inoperative because it violated the intent .of this section. State v. Green, 95 Fla. 117, 129, 116 So. 66.

Provisions of C. 6456, as amended by C. 6%7, that revenue derived from special · assessment thereby imposed should be set aside and especially appropriated to carry out the particular purposes stated, was in effect an appropriation made by law, and was not in conflict with this section. Lainhart v. Catts, 73 Fla. 735, 75 So. 47. See also, Bannerman v. Catts, 80 Fla. 170, 85 So. 336.

Quoted in State v. Amos, 100 Fla. 1335, 1337, 131 So. 122.

Cited in In re Advisory Opinion to Governor, 145 Fla. 375, 378, 199 So. 350; State v. Cone, 130 Fla. 158,171, 177 So. 854 (dis. op.): Dade County v. Kerce, 137 Fla. 194, 211, 188 So. 642; In re Advisory Opinion to Governor, 94 Fla. 967, 981, 114 So. 850; State v. Harrison , 107 Fla. 20, 25, 144 So. 316; In re Advisory Opinion to Governor, 78 Fla. 156, 82 So. 606 ; State v. Lakeland, 112 Fla. 200, 205, 150 So. 508, 90 A. L. R. 704.

§ 5 HISTORY.


ANNOTATION. I. What Constitutes a Municipal Purpose.

II. The Tax. III. Assessment by M unieipality. IV. Acts H eld Valid. V. Applied, Cited, etc.

Cross References. See annotations to Art. XVI, § 19; Art. IX , § L

See also, § 208.02, Fla. Stats., 1941.

I. WHAT CONSTITUTES A MUNICIPAL PURPOSE . .

It will be observed that the several counties of Florida are restricted and limited to the assessment and imposition of taxes for county purposes and the counties are without power to assess and tmpose· a tax for any purpose other than a county purpose. Brown v. Winton, 143 Fla. 4~8. 480, 1!'J7 So. 543; Hoskins v. Orlando, 51 F. (2d) 901, 90.J; McMullen v. Pinellas County, 90 Fla. 398, 400, lOG So. 73; Amos v. Mathews, 99 Fla. 1, 126 "So. 308.

No certain rule can be prescribed by which to determine when a work of internal improvemen t ~hall be deemed to be embt-aced within the meaning of the phrase, a "county purpose." Lewis v. Leon County, 91 Fla. 118, 107 So. 146; Cotten v. County Com'rs, 6 Fla. 610.

Since question is to be determined by express [ 1168 1

Art. IX,§ 5 TAXATION AND FINANCE Art. IX,§ 5

or implied provisions of statute.-What is a county purpose may be determined by the express or implied provisions of a statute ; and the courts will not interfere with such determination unless it has no legal or practical rela tions to a valid county purpose. State v. Brevard County, 99 Fla. 226, 234, 126 .So. 353. ' · The legislature being the judge thereof.-The legislature may be the judge of what constitutes a county or municipal purpose and -that such purposes frequently overlap; in other words, an object or function may be both county and municipal in purpose. State v. Gordon, 138 Fla. 312, 318, 189 So. 437; Thursby v. Stewart, 103 Fla. 990, 1201, 137 So. 7, 138 So. 742.

But tax must be exclusively for county purpose. -"County tax" means tax exclusively for county purposes, in which state has no sovereign interest or responsibility, and which has no connection with duties of county in its relation to state. Amos v. Mathews, 99 Fla. 1, 126 So. 308.

The question of what constitutes a municipal purpose within the meaning of this section is not static. It should be determined as of the time the constitution is construed rather than as to what was so considered at the time of its adoption. Fernandina v. State, 143 Fla. 802, 805, 197 So. 454.

The power of a municipality to levy a tax for advertising purposes must be made to appear clearly and will not be implied from mere general charter or statutory powers. Loeb v. Jacksonville, 101 Fla. 429, 134 So. 205, 79 A. L. R. 459.

. Ownership, maintenance and operation of a public golf course is a permissible "municipal function" under this section. West v. Lake Placid, 97 Fla. 127, 120 So. 361.

Unless a hospital is used for a permissible county purpose, a county tax cannot be levied for its construction or mainteno.nce without violating this section. McRae v. McSwain, 95 Fla. 893, 894, 116 So. 862. ·

Bonds held to be for a county purpose within this section, in State v. Walton County, 97 Fla. 59, 119 So. 865.

Com'rs, 6 Fla. 610, cited in Brown v. Winton, 143 F la. 4 78, 483, 197 So. 543.

The building of a bridge in a county within the corporate limits of a municipality in which the county outside of those limits is in no wise interested, the same being for the sole benefit and advantage of the municipality, is not a county purpose. Skinner v. Henderson, 26 Fla. 121, 7 So. 464, s L. R. A. 55.

Work of improving the navigation of the St. Johns River, and removing obstructions therefrom, within the county of Duval, was work for a county purpose within the meaning of this section. Stockton v. Powell, 2!l Fla. 1, 10 So. 688, 15 L. R. A. 42.

Maintenance of a public library is a municipal purpose not excluded by organic law. Tampa v. Prince, 63 Fla. 387, 58 So. 542.

II. THE TAX.

Two classes of taxes.-Under this section and § 1 of this Article, only two classes of taxes can be levied in the state, an ad valorem tax and a tax on licenses. Afro-American Industrial, etc., Ass'n v. State, 61 Fla. 85, 54 So. 383.

Under this section the principles established for state taxation of property apply to the taxation of property for municipal purposes. Ft. Myers ·v. Heitman, 148 Fla. 432, 434, 4 So. (2d) 871.

This is not a limitation upon the inherent power of the legislature to impose excise, occupational or other taxes that are in the nature of license or privilege taxes. It is an express declaration of a power that exists in the legislature. Amos v. Gunn, 84 Fla. 285, 94 So. 615; Afro-American Industrial, etc., Ass 'n v. State, 61 Fla. 85, 64 So.' 383, and cases cited; Ferguson v. McDonald, 66 Fla. 494, 63 So. 915. ·

And a reasonable classification may be provided. -Notwithstanding this section it is competent for the legislature to provide reasonable classifications of property for purposes of municipal taxation so long as such classifications do not violate other provisions of the constitution. State v. Miami, 103 Fla. 54, 137 So. 261.

An act authorizing a county to acquire and hold pro,perty and erect thereon the necessary structures for the purpose of conducting · fairs and agricultural Tax on licenses must conform to due process exhibitions is not in conflict with this section the and equal protection provisions.-There is no expurpose stated being a legitimate county purpose press limitation of the power of the legislature to within the meaning of such constitutional provi- provide for a tax on licenses, but the organic resion, limiting county taxation to• county purposes. quirements of due process and equal protection of Earle v. Dade County, 92 Fla. 432, 109 So. 331. the laws should be observea in levying or in au-

A special act empowered a county to improve thori.zing the levy and· collection of license taxes. its highways through voluntarily formed road dis- Roach v. Ephren, 82 Fla. 523, 525, 90 So. 609. tricts by issuing the county's general bonds, sup- And have equal and uniform rate.-The proviported by general tax levies, with assessments sion of this section that "all property shall be against the benefited property in the .district. It taxed upon the principles established for state was contended that streets even in privately owned taxation," has reference to the organic requiresubdivisions may be improved, and the purpose of ments of "a uniform and equal rate of taxation" the tax may be not a public one, to which county and to such statutory regulations "as shall secure taxation is limited by this section. It was held a just valuation of all property, both real and perthat this contention was without merit. Hills- sonal, excepting such property as may be exborough County v. Keefe, 82 F. (2d) 127, 128, empted by law." The mechanics of assessing and certiorari denied in 298 U. S. 679, 56 S. Ct. 946, collecting authorized tax levies are not of "the 80 L. Ed. 1400. principles established for state taxation" r eferred

Subscription to railroad stock.-The act of sub- to, no other organic provision being violated. Rio scription to the c·apital stock of the Pensacola & Vista Hotel. etc., Co. v. Mead Develop. Corp., 132 Georgia Railroa'd Company, by -the county commis- Fla. 88, 109, 182 So. 417; Bradenton v. Seaboard sioners of Leon county, is within the meaning of Air Line R. Co., 100 Fla. 606, 130 So. 21; Merrell the phrase "county purposes" as used in the for- v. St. Petersburg, 64 Fla. 367, 60 So. 349. mer constitution of the state. Cotten v. County By "principles established for state taxation," ·as

[ 1169 ]


required by this section with reference to assessing and imposing taxes for municipal purposes, is meant uniformity and equality, just valuation, and similarity of treatment, of the subject of taxation by both jurisdictions. Ranger Realty Co. v. Miller, 102 Fla. 378, 136 So. 546.

Not applicable to school districts, etc.-"School districts" or "special tax school districts," though they are within the counties of the state, yet they are by the constitution made separate and distinct governmental entities, whose taxing power is separate and distinct from the county taxing power for public free schools in the counties. Hamrick v. Special Tax School Dist., 130 Fla. 453, 460, 178 So. 406.

Nor to special assessments.-This section which relates to taxation, does not apply to special assessments in the nature of taxation for local improvements. Lainhart v. Catts, 73 Fla. 735, 75 So. 4 7; Pinellas Park Drainage Dist. v. Kessler, 69 Fla. 558, 68 So. 668; Howarth v. DeLand, 117 Fla. 692, 700, 158 So. 294.

The "second gas tax" was imposed under this section. State v. Cone, 130 Fla. 158, 166, 177 So. 854.

Chapter 10145, Acts 1925 does not violate Art. III, § 20 of the Constitution because this section of the Constitution authorizes the legislature, by special act, to assess and impose taxes for count5' purposes. Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486; Webb v. Scott, 129 Fla. 111, 118, 176 So. 442.

An act requiring able-bodied citizens to work on the highways is not a law imposing a tax within the meaning of this section of the constitution. Mashburn v. State, 65 Fla. 470, 62 So. 586.

III. ASSESSMENT BY MUNICIPALITY.

Authority derived from section.-The authority of a city or town to assess real estate and place its own valuation on such property for taxable purposes is derived from the provisions of this section. Auburndale v. Cline, 82 Fla. 121, 89 So. 427; Harkness v. Seaboard Air Line Railway, 99 Fla. 1027, 128 So. 264.

The word "assessment" as used in this section has the double significance of listing and valuing property for the purpose of apportioning a tax upon it according to valuation as well as determining the amount of money to be raised by exercise of the taxing power. Auburndale v. Cline, 82 Fla. 121, 89 So. 427.

The property must be located within the municipality. Harkness v. Seaboard Air Line Railway, 99 Fla. 1027, 128 So. 264.

And this is a mandate that in levying taxes upon property for municipal purposes, cities and towns shall make their own assessments. Bradenton v. Seaboard Air Line R. Co., 100 Fla. 606, 130 So. 21.

Standards must be observed.-Such "assessments," including the valuations, must observe the "principles" requiring a "just valuation of all property, both real and personal," except such as is lawfully exempted, and the "assessments" must have a fair relation to a "uniform and equal rate of taxation;" but the valuations included in the "assessments" are not required to be the same as those used for purposes of state taxation. Bradenton v. Seaboard Air Line R. Co., 100 Fla. 606, 180 So. 21.

IV. ACTS HELD VALID.

Chapter 13486, Acts 1927, does not violate this section. State v. Tyler, 95 Fla. 811, 116 So. 760.

The provisions of Chapter 6456, Acts 1913, as amended by Chapter 7862, Acts 1919, are not in conflict with this section. Bannerman v. Catts, 80 Fla. 170, 85 So. 336.

Chapter 15659, Acts 1931 (§§ 208.01 et seq., Fla. Stats., 1941) held not to violate this section. Carlton v. Mathews, 103 Fla. 301, 137 So. 815.

Acts 1937, C. 18011 (§§ 205.01 et seq., Fla. Stats., 1941) held not to violate this section. American Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524.

V. APPLIED, CITED, ETC.

Applied in State v. Wood, 145 Fla. 296, 3(}1, 199 So. 262.

Quoted in Henderson v. Lake Placid, 132 Fla. 190, 192, 181 So. 177; Daytona Beach v. King, 132 Fla. 273, 277, 181 So. 1, 116 A. L. R. 880; Winter Haven v. Klemm & Son, 132 Fla. 334, 340, 181 So. 153; Sanford v. Dial, 104 Fla. 1, 4, 142 So. 233; State v. Goodgame, 91 Fla. 871, 878, 108 So. 836, 47 A. L. R. 118.

Stated in Frey v. State, 127 Fla. 671, 674, 173 So. 812; State v. Vickers, 110 Fla. 157, 165, 148 So. 526.

Cited in State v. Tampa, 148 Fla. 6, 8, 3 So. (2d) 484; State v. Florida Keys Aqueduct Comm., 148 Fla. 485, 504, 4 So. (2d) 662; Crowder v. Philips, 146 Fla. 428, 1 So. (2d) 629; State v. Auburndale, 144 Fla. 210, 213, 197 So. 739; Rorick v. Reconstruction Finance Corp., 144 Fla. 539, 542, 198 So. 494; Miami Beach College Corp. v. Tomlinson, 143 Fla. 57, 196 So. 608; State v. St. John, 143 Fla. 544, 197 So. 131; Higbee v. Housing Authority, 143 Fla. 560, 576, 197 So. 479; Horn v. Miami Beach, 142 Fla. 178, 194 So. 620; Lott v. Orlando, 142 Fla. 338, 196 So. 313; Bice v. Haines City, 142 Fla. 371, 195 So. 919; Howey Co. v. Williams, 142 Fla. 415, 195 So. 181; State v. Tallahassee, 142 Fla. 476, 482, 195 So. 402 (dis. op.).

Cited also in Dade County v. Kerce, 137 Fla. 194, 210, 188 So. 642; Shelton v. Coleman, 136 Fla. 625, 187 So. 266; Fahs v. Kilgore, 136 Fla. 701, 706, 187 So. 170; Florida Sugar Distributors v. Wood, 135 Fla. 126, 132, 184 So. 641; Floyd Fruit Co. v. Florida Citrus Comm., 128 Fla. 565, 569, 175 So. 248, 112 A. L. R. 5G2; Sarasota v. Skillin, 130 Fla. 724, 729, 178' So. 837.

Cited also in Haines City Heights v. Haines City, 127 Fla. 86, 87, 172 So. 484 (con. op.); State v. Haines City, 127 Fla. 239, 240, 169 So; 383; State v. St. Petersburg, 127 Fla. 509, 5Hl, 173 So. 434; State v. Haines City, 126 Fla. 561, 169 So. 383; Pensacola v. Lawrence, 126 Fla. 830, 833, 171 So. 793; State v. Clearwater, 125 Fla. 73, 169 So. 602; Marianna v. Davis, 124 Fla. 145, 151, 169 So. 50; State v. Ives, 123 Fla. 401, 431, 167 So. 394; Boca Raton v. Moore, 122 Fla. 350, 359, 165 So. 279; Winter Park v. Dunblaine, 121 Fla. 600, 164 So. 366; State v. Harris, 120 Fla. 555, 562, 163 So. 237.

Cited also in State v. Lee, 119 Fla. 745, 160 So. 886; State v. Lake Placid, 117 Fla. 874, 158 So. 497; Jacksonville v. Oldham, 112 Fla. 502, 150 So. 619; Lakeworth v. McLeod, 112 Fla. 843, 151 So. 318; Coen v. Lee, 116 Fla. 215, 218, 156 So. 747; State v. Citrus County, 116 Fla. 676, 684, 157 So. 4, 97 A. L. R. 431; Allison Realty Co. v. Graves Inv. Co., 115 Fla. 48, 155 So. 745; Masters v. Duval

[ 1170]

Art. IX,§ 6 TAXATION AND FINANCE Art. IX, § 6

County, 114 Fla. 205, 154 So. 172; State v. O'Quinn, 114 Fla. 222, 154 So. 166; State v. Butts, 111 F la. 630, 149 So. 746, 89 A. L. R. 946; Heriot v. Pensacola, 108 Fla. 480, 146 So. 654: State v. Avon• Park, 108 Fla. 640, 660, 144 So. 306; Klemm v. Davenport, 100 Fla. 627, 635, 129 So. 904, 70 A. L. R. 156; West Virginia Hotel Corp. v. Foster Co., 101 Fla. 1147, 1164, 132 So. 842.

Cited also in Hoadley v. Tarpon Spring~. 99 Fla. 130, 125 So. 912; Williams v. Dormany, 99 Fla. 496, 502, 126 So. 117; Rawls v. State, 98 Fla. 103, 105, 122 So. 222; Whitney v. Hillsborough County, 99 Fla. 628, 643, 127 So. 486; State v. Stuart, 97 Fla. 69, 80, 120 So. 335, 64 A. L. R. 1307; Apgar v. Wilkinson, 95 Fla. 457, 4U4, 116 So. 78; Jackson Lbr. Co. v. Walton County, 95 Fla. 632, 116 So. 771; State v. Sarasota, 92 Fla. 563, 571, 109 So. 473; Atlantic Coast Line R. Co. v. Amos, 94 Fla. 588, 607, 115 So. 315 (dis. op.); State v. Daniel, 87 Fla. 270, 289, 99 So. 804; Rushton v. State, 75 Fla. 422, 426, 78 So. 345; State v. Greer, 88 Fla. 24:::, 258, 102 So. 739, 37 A. L. R. 1298; Whitaker v. Parsons, 80 Fla. 352, 358, 86 So. 247.

§ 6 HISTORY.

Original section of Constitution 1885; amended by Senate Joint Resolution 26, Acts of 1!}29, adopted at general election 1930.

ANNOTATION. I. General Consideration.

II. State Bonds. III. When Approval of County or Municipal Issue

Required. A. General Consideration. B. What Securities Must Be Approved. C. Payments to Be Made from Operation

of Property. D . Refund ing Bonds. E. General Illustrations.

Cross References. See §§ 103.01, 132.01 to 132.32, 180.01, 180.11,

420.01, 550.14, Fla. Stats., 1941. See also, Art. XII. §§ 8, 17 and annotations thereto.

I. GENERAL CONSIDERATION.

This section in no way affects the supremacy of the legislature over municipalities. State v. Miami, 103 Fla. 54, 137 So. 261.

The purpose of the section is to prevent the unnecessary and extravagant borrowing of funds for public uses by the counties, districts or municipalities of the state, with particular reference to to tax burden assumptions. Williams v. Dunnellon, 125 Fla. 114, 122, 169 So. 631.

It in effect recognized the power of the legislature to establish districts and to authorize counties and districts to issue bonds, by forbidding further district bond and refunding bond issues except as provided in such organic section. State v. Cone, 140 Fla. 1, 4 , 191 So. 50; Taylor v. Williams, 142 Fla. 402, 407, 195 So. 175; Howey Co. v. Williams, 142 Fla. 415, 418, 195 So. 181; J acksonville v. Renfroe, 102 Fla. 512, 136 So. 254.

The word "issued" as applied to bonds usually includes delivery, but it does not invariably do so. But, where a different meaning is to be g iven the word "issue" the intentioJ to give it such different meaning must appear upon the face of the act or document in which it is used. Jacksonville v. Renfroe, 102 Fla. 512, 136 So. 254.

Issuance of bonds by minor taxing units under legislative authority for purposes other than those for which the state is authorized to issue them may be approved. Bannermaq v. Catts, 80 Fla. 170, 85 So. 336; Lainhart v. Catts, 73 Fla. 735, 75 So. 47; Lewis v. Leon County, 91 F la. 118, 107 So. 146; State v. Ocean Shore Improve. Dist., 116 Fla. 284, 285, 156 So. 433.

As to intervention by taxpayer in city's suit to validate bonds, see Atlantic Coast Line R. Co. v. Lakeland, 130 F la. 72, 177 So. 206.

As to effect of failure to appeal from circuit court's adjudication of validity of bonds, see State v. \iValthall, 124 Fla. 866, 169 So. 552.

Applied in State v. Belle Glade, 121 Fla. 200, 163 So. 564; Charles v. Miami, 125 Fla. 110, 112, 169 So. 589.

Quoted in State v. Pompano, 136 Fla. 730, 770, 188 So. 610; State v . Henderson, 134 Fla. 731, 737, 184 So. 654; Brooks v. J acksonville, 127 Fla. 564, 577, 173 So. 365.

Cited in State v. Pinellas-Manatee Joint Bridge Authority, 146 Fla. 292, 294, 200 So. 689; State v. F t . Myers, 145 F la. 135, 146, 198 So. 814; State v. Special Road, etc., Dist., 145 Fla. 210, 215, 198 So. 832; Lee v. Atlantic Coast Li:i'le R. Co., 145 Fla. 618, 200. So. 71; Motes v. Putnam County, 143 Fla. 134, 149, 196 So. 465; Bryan v. Board of Public Instruction, 142 Fla. 691, 195 So. 697 ; Tay-lor v. Williams, 142 Fla. 562, 195 So. 184; Bryan v. Miami, 139 Fla. 650, 653, 190 So. 772; State v. Tampa, 137 Fla. 29, 41, 187 So. 604; State v. Inner-ness, 137 Fla. 629, 634, 188 So. 767.

State v. Hillsborough County, 136 Fla. 503, "183 So. 157; Phillips v. Bradenton, 136 F la. 602, 605. 187 So. 258; Williams v. Keyes, 135 Fla. 769, 804, 186 So. 250; State v. St. Lucie County, 134 Fla. 364, 367, 183 So. 846; Casey v. Davis, 134 Fla. 384, 390, 184 So. 36; State v. Special Road, etc., Dist., 133 F la. 119, 132, 182 So. 583; Winter Haven v. Klemm & Son, 132 Fla. 334, 340, 181 So. 153; State v. Cone, 130 F la. 158, 177 So. 854.

Hialeah v. State, 128 Fla. 46, 174 So. 843; State v. Holly Hill, 128 Fla. 385, 387, 174 So. 818; State v. Orlando, 127 Fla. 280, 170 So. 887; State v. Plant City, 127 Fla. 495, 496, 173 So. 363; State v. Barker, 124 Fla. 358, 168 So. 534; State v. Pensacola, 123 Fla. 331, 166 So. 851; Board of Com'rs v. Herrick, 123 Fla. 619, 167 So. 386; Hopkins v. Baldwin, 123 Fla. 649, 167 So. 677.

Fleming v. Turner, 122 Fla. 200, 165 So. 353; State v. Barker, 121 Fla. 350, 163 So. 695; Sparks v. Ewing, 120 Fla. 520, 526, 163 So. 112; Folks. v. Marion County, 121 Fla. 17, 24, 163 So. 298, 102 A. L. R. 659; Boatright v. Jacksonville, 117 Fla. 477, 158 So. 42; State v. Sholtz, 115 Fla. 5fH, 155 So. 736; State v. Broward County Port Authority, 118 Fla. 42, 70, 151 So. 416, 718, 158 So. 62; Sholtz v. McCord, 112 F la. 248, 250, 150 So. 234; Jacksonville v . Oldham, 112 Fla. 502, 503, 150 Sc 619.

State v. Butts, 111 Fla. 630, 149 So. 746, 89 A. L. R. 946; State v. Vickers, 110 Fla. 157, 165, 148 So. 526; Pitt v. Belate, 108 Fla. 292, 146 So. 380; Thursby v. Stewart, 103 Fla. 990, 1017, 138 So. 742; Stewart v. New Smyrna Inlet Dist., 100 Fla. 1126, 1 J 29, 130 So. 575; Sullivan v. Tampa, 101 Fla. 29S, 134 So. 211; Daytona Beach v. State. 101 Fla. 560, 132 So. 490; Stewart v. New SmyraCoronado Beach Special Road, etc., Dist., 101 Fla. 823. J 32 So. 636; Board of Public Instruction v. Union School Furnishing Co., 100 Fla. 326, 331, 129 So. 824; Amos v. Mathews, 99 Fla. 1, 126 So.

[ 1171 l

Art. IX, § G CONSTITUTION OF THE STATE OF FLORIDA Art. IX; § 6

308; In re Advisory Opinion to Governor, 94 Fla. 967, 971, 114 So. 850; State v. Green, 95 Fla. 117, 116 So. 66.

II. STATE BONDS.

General statement.-In view of the limitations contained in this section, the state cannot legally in any form or manner, either directly or indirectly . or contingently, pay, or be obligated to pay, the whole or any part of the principal or the interest of the bonds authorized to be issued by the Everg lades Drainage District. Martin v. Dade Muck Land Co., 95 F la. 530, 116 So. 449.

"State bonds" cannot legally be issued for any purpose whatever other than for repelling invasion or suppressing insurrection in this state. In re Advisory Opinion . to Governor, 94 Fla. 967, 114 So. 850; Williams v. Dunnellon, 125 Fla. 114, 123, 169 So. 631.

Doubt resolved in favor of statute.-If a reasonable doubt exists as to whether statutory

!obligations to be issued by or for the state. are in legal effect "state bonds," the doubt should be ·resolved in favor of the statute. Brash v. State Tuberculosis Board. 124 Fla. 652, 169 So. 218: Hopkins v. Baldwin, 123 Fla. 649, 167 So 677; \Villiams v. Dunnellon, 125 Fla. 114, 125, 169 So. 631.

This section in effect forbids the issue of state bonds for road construction, and in order to be effective and to prevent its indirect violation, said section by intendment likewise forbids the use of state revenues to pay any bonds issued f<>r road construction. See Martin v. D ade Muck Land Co .. 95 Fla. 530, 116 So. 449; In re Advisory Opinion to Governor, 94 F la. 967, 114 So. 850; State v. Green, 95 Fla. 117, 116 So. 66; Amos v. Mathews. 99 Fla. 65, 108, 126 So. 308. ·

But a contract under statute for the construction of state highways does not violate this section, since it does not involve the borrow:ng of money or the issuing of bonds or other evidences of state debt, but merely provides for paying for state highway construction as the work is done. Hathaway v. Munroe, 97 Fla. 28, 119 So. 149.

The state tuberculosis board is an agency or branch of the state of F lorida, and the issuance by said board of revenue certificates must comply with this section. Brash v. State Tuberculosis .Board, 124 Fla. 167, 171, 167 So. 827.

III. WHEN APPROVAL OF COUNTY OR MUNICIPAL ISSUE REQUIRED.

A. General Consideration.

reference to those who would be required to bear a just proportion of the tax burden undertaken if the bond election results in an affirmativ:: vote Crowder v. Philips, 146 Fla. 428, 432, 1 So. (2d) 629.

If one is a freeholder by virtue of the fact that he is the owner of an exempt homestead and is thereby relieved of the tax tGI support the bonds that may be voted then he is in the same class as electors who are not freeholders, and likewise should not be permitted to vote in bond elections con trolled by this section. Id.

The provisions of amendment should not be given such a narrow and technical construction as would defeat its evident intent and purpose; nor should its expressed prohibitions be impaired or frittered away by any such method of construction. Sullivan v. Tampa, 101 Fla. 298, ·134 So. 211; State v. Hillsborough County, 148 Fla. 163, 168, 3 So. (2d) 882.

The amendment was never intended to preclude the taxing unit from making advantageous settlement of an obligation which had accrued before. and was existing at, the time of such amendment. State v. Hillsborough County, 148 Fla. 163, 169. 3 So. (2d) 882.

Municipal property or resources cannot be pledged.-!£ funds are to be borrowed for the acquisition of a new municipal project, utility or facility, which was not in use when the crganic amendment was adopted, or if any municipal property or tax resource, other than the net re· ceipts derived from the operation of the public utility or facility, is to be in any way whatever pledged or used for the acquisition of a new project, utility or facility, or for the maintenance improveme nt or extension of an existing publi~ facility or utility, no instruments evidencing indeb_tedness for such borrowed funds , can legally be tssued by or for the state if th e instruments are in legal effect "state bonds." In such cases a vote of freeholders is required. Brash v. State Tuberculosis Board, 124 Fla. 167, 167 So. 827; Sholtz v. McCord, 112 Fla. 248, 150 So. 234; Herbert v. Thursby, 112 Fla. 826, 151 So. 385: Boy kin v. River Junction, 121 Fla. 902, 164 So. 558; Kathleen Citrus Land Co. v. Lakeland, 124 Fla. 659, 169 So. 356; Hygema v. Sebring, 124 Fla. 683, Hi9 So. 366; L eon County v. State, 122 Fla. 505, 165 So. 666; Williams v. Dunnellon, 125 Fla. 114. 124, 16\l So. 631.

And the fact that no burden is added must be clearly demonstrable. - Only where it can be clearly demonstrated beyond a reasonable doubt that a co.ntemplated scheme of embarkation upon

Prior . to amendment no election was required. new capt tal ventures will not immediately or -The prohibitory constitutional amendment of mediately, presently or in futuro, directly or con-1930 must be considered as a construction that tingently, operate to impose an added bunien 011 bonds were theretofore issued legally without an the taxing power, or have th e effect of impairing election when authorized by special charter. Harris the pub lic credit in futuro, will the consummation v. Hialeah, 10 F. Supp. 546, 548. of such a debt incurring scheme be held author-

But now a vote of freeholders is required.-A ized, absent the aJ.ii'Proving voice of the fr('eholdcounty has authority to issue bonds that are not ers as required by this section . Brash v. State permissible refunding bonds, only after such issue Tuberculosis Board, 124 Fla. 652, 656, 169 So. 21 s. has been approved by a majority of the votes cast Approval should be had if doubt exists.-If a in an election in which a majority of the fre ehold- reasonable doubt exists as to whether an existing ers who are qualified. electors residing in such public facility to be improved or extended is escounty shall participate. Nolle v. Brevard County, sential to the public health, safety or economtc 100 Fla. 1692, 131 So. 776. security of the c6mmunity, and not merely de-

Meaning those who will bear the tax.-From sirable or convenient, the issue of county, district the very nature and circumstances actuating this or municipal obligations therefor should have thl" provision, freeholders as contemplated herein had approval of the freeholder electors of the unit as

[ 1172 l

Art. IX, § 8 TAXATION AND FINANCE Art. lX, § 6

is expressly required by this section. Williams v. Dunnellon, 125 Fla. 114, 125, 169 So. 631. ·

Statutory referendum elections are not elections within the meaning of this section. Masters v. Duval County, 114 Fla. 205, 216, 154 So. 172.

B. What Securities Must Be Approved. Any scheme of public financing, directly or in

directly, immediately or contingently calculated to obligate the future taxing power of the obligor, is within the scope of this section. Leon County v. State, 122 Fla. 505, 508, 165 So. 666; Kathleen Citrus Land Co. v. Lakeland, 124 Fla. 659, 672, 169 So. 356.

Any attempt on the part of a municipality to borrow money and enter into a contract to repay the same with interest, even though it is stipulated that there shall be no general liability on the obligation, is not permissible under this 'section. Spearman Brewing Co. v. Pensacola, 136 Fla. 869, 874, 187 So. 365.

This section applies to an indebtedness that has the effect of a bond obligation to be paid by taxation. Miami v. State, 139 Fla. 598, 622, 190 So. 774.

Certificates in form of bonds.-The proper authorization by the electors in . the case of municipal bonds is jurisdictional in the case of certificates · that are in contemplation of law nothing more than a form of "bonds." Boykin v. River Junction, 124 Fla. 827, 839, 169 So. 492.

Notes payable withjn one year from issue are not bonds within the meaning of this section. Tapers v. Pi chard, 124 Fla. 549, 169 So. 39; State v. Hillsborough County, 136 Fla. 503. 183 So. 157; State v. Gordon, 138 Fla. 312, 321, 189 So. 4:!7.

Permanent improvement notes.-The provisions of the amendment to th is section apply to permanent improvement notes issued by a city in which notes the full faith and credit and resources of the city are pledged and which notes are in substance and legal effect bonds. State v. Hillsborough County, 148 Fla. 163. 168, 3 So. (2d) 882.

A note amounting to nothing more than the evidence of a debt executed prior to the 1930 Amendment is not affected by this sect ion. Ginsberg v. Daytona Beach, 103 Fla. 168, 137 ·so. 253.

Delinquent tax anticipation notes held not bonds within the meaning of this section, in State v. Tampa, 133 Fla. 840, 183 So. 491.

Proposed mortgage of port district held to violate this section, in Broward County Port Au .. thority v. State, 129 Fla. 73, 175 So. 796.

C. Payments to Be Made from Operation of Property.

General statement.-This section does not forbid the issue by taxing units of written interestbearing evidences of indebtedness, whether called bonds or certificates, provided such indebtedness is not to be paid by taxation of any nature or by the use, pledge or application of any property other than the net proceeds from the operation of the property acquired through incurring indebtedness for a necessary public utility or facility to serve the immediate requirements of· the public heafth, safety or welfare; and the evidences oi indebtedness and the proceedings for their validation and issue should definitely state that payment of principal and interest of such indebtedness will be paid in whole or in part solely from the net receipts from the operation of the public utility or facility acquired by means of the in-

debtedness. Authority to incur and evidences of such indebtedness must be in pursuance of valid express and sufficient statutory authority. State v. Tampa, 148 Fla. 6, 9, 3 So. (2d) 484.

Instances of bonds payable from revenue from utility and not requiring vote of freeholders will be found in State v. St. Petersburg, 145 Fla. 206, 198 So. 837; Jacksonville v. May, 140 Fla. 82G, 192 So. 614; State v. Spangler, 139 Fla. 201, 190 So. 425; Neff v. J acksenville, 139 Fla. 179, 190 So. 468; State v. Clearwater, 135 Fla. 148, 152. 184 So. 790; State v. Pensacola, 135 F la. 239, 241. 184 So. 768; State v. DeLand, 135 Fla. 540, 18:i So. 343.

Trudnak v. F t. Pierce, 135 Fl'a. 573, 185 So. 353: McGoon v. Miami Springs, 135 Fla. 583, J 85 So 345; Sharp v. Bradenton, 135 Fla. 604, 185 So. 346; Smoak v. Haines City, 135 Fla. 606, ;85 So. 347; Batt v. Umatilla, 135 Fla. 608, 185 So. 348: Dickey v. Broward County Port Authority, 13~ F la. 622, 185 So. 349.

Anderson v. Wauchula, 135 Fla. 625, 1.85 So. 350; Anderson v. Wauchula, 135 F la. 628, 185 So. 352; State v. St. Petersburg, 135 Fla. 642, 185 So. 451; Panama City v. State, 135 F la. 687, 185 So. 452; Reben v. Sarasota, 135 Fla. 698, 185 So. 607; Dickey v. Ft. Lauderdale, 134 Fla. 193, 183 So. 724.

Marvin v. Housing Authority, 133 Fla. 590, 18:J So. 145; Hess v. Orlando, 133 F la. 831, 183 So. 473; Trudnak v. Gustafson, 133 Fla. 834, 183 So. 494; State v. Hollywood, 131 Fla. 584, 179 So 721; State v. Port St. Joe, 131 Fla. 854, 180 So. 28; State v. Port St. Joe, 131 Fla. 858, 860, 180 So. 29; State v. Hillsborougli County, 132 Fla. 832, 182 So. 269; Brooks v. J acksonville, 127 Fla . 564, 173 So. 365.

Flint v. Duval County, 126 Fla. 18, 170 So. 587: State v. Ft. Pierce, 126 Fla. 184, 170 So. i 42; Roach v. Tampa, 125 F la. 62, 169 So. 627: State v. MacConnell, 125 Fla. 130, 169 So. 628; Bradley v. Homestead, 125 F la. 137, 169 So. 639; Patton v. Panama City, 125 Fla. 140, 169 So. 638; Boynton v. Safety Harbor, 125 Fla. 143, 169 So. 644 ; Taylor v. Miami, 125 Fla. 144, 169 So. 644; May Land Co. v. Ft. Lauderdale, 125 Fla. 146, J69 So. 642.

Vorhees v. Moore Haven, 125 Fla. 149, 169 So. 641; Teachy v. Wauchula, 125 Fla. 150, 169 So. 640; Pentecost v. Ft. Myers, 125 Fla. 152, ~69 So. 645; Airth v. Live Oak, 125 Fla. 155, 169 So. 646; I.locker v. St. Petersburg, 125 Fla. 156, 169 So. 647; State v. St. Augustine, 125 Fla. 173,. 169 So. 648; State v. Clearwater, 124 Fla. 354, 168 So. 546; Wilson v. Bartow, 124 Fla. 356, 168 So. 545: Hygema v. Sebring, 124 Fla. 683, 169 So. 366; State v. Miami, 113 Fla. 280, 152 So. 6.

Where principal and interest of bonds are payable from revenues of causeway, issuance not held to require approval, in State v. Dade County, 146 Fla. 331, 200 So. 848.

D. Refunding Bonds. This section does not require a vote of the free

holders to issue refunding bonds designed to extend the time for payment of the original indebtedness, no new debt having been l'reated. State v. Miami, 103 Fla. 54, 137 So. 261. Prior to the Amendment of 1930 the law was otherwise. State v. Orlando, 126 Fla. 251, 269, 170 So. 887.

Since such bonds do not create a new debt or impose any new liability against the taxpayers of their property within the meaning of this con-

[ 1173 1

Art. IX,§ 7 CO NSTITUTION OF THE STATE OF FLORIDA Art. IX, § 7

stitutional provision. State v. Okeechobee, Fla. 617, 127 So. 339, c1tmg Davis v. Dixon, Fla. 87, 123 So. 536. . . .

99 F la. 629, 159 .So. 797; of the special tax school dis-98 trict of Dade county, in State v. Special Tax

School Dist., 107 Fla. 93, 144 So. 356.

The rule applies to both pnnc1pal and mterest. E . General Illustrations. -Refunding bonds may be issued for the purpose School tax d istrict tax bonds held issued in vic-of refunding both principal and interest without lation of this section, in Board of Public Instructhe approval of the . electors. See Sullivan v. tion v. State, 122 Fla. 19, 164 So. 516. Tampa, 101 Fla. 298, 134 So. 211; State v. <;or~! The construction and repair of courthouses and Gables, 114 Fla. 326, 154 So. 234; State v. MI~mt. jails is a necessary budgetary requirement of the 116 Fla. 517, 157 So. 13; Fleeman v. Jack~onvtlle. I county. Tapers v. Pichard, 124 F la. 549, 5f•3. 169 140 Fla. 478, 191 So. 840; State v. Vemce, 147 So. 39. Fla. 70, 75, 2 So. (2d) 365. Approval of issuance of bonds to pay claim

But the original o~ligation ~ust not be en- against school district is not required by this sechanced.-If the refundmg bond m any way adds tion. Tichenor v. Board of Public Instruction.· 13!l to, increases, makes more attra.ctive, or enhances Fla. 675, 190 So. 763. the· obligation of the contract 1': a way not e~- Water revenue bonds of Florida Keys aqueduct braced in the original bond, it w1ll be held m VIO- commission held not to violate this section. in lation of this section unless approved by ,a vote State V< Florida Keys Aqueduct Comm., 148 Fla. of the freeholders. State v. Miami, 101 F.a. 292• 485, 4 So. (2d) 662. 134 So. 608; Ft. Myers v. State, 129 Fla. 16f\ , 169• Construction of county courthouse held es-176 So. 483; Outman v. Cone, 141 ' Fla. 196· 199· sential governmental requirement and certificates 192 So. 611; State v. Manatee, 140 Fla. 248, 191 of indebtedness payable from budgetary requireSo. 529; State v. Citrus County, 116 Fla. 676, 157 ments need not be approved by freeholders , in So. 4, 97 A. L. R. 41l1; State v. Coral Gables. 114 Posey v. Wakulla county, 148 Fla. 115, 119. 3 So. Fla. 326, 154 So. 21l4. (2d) 799.

A note given for money to pa~ a matured bond Water revenue bonds of city of Miami held not serves the same purpose as th~ Issuance. and sale to violate this provision, in State v. Miami, 14G of refunding bond, and when 1t results m no .ad- F la. 266, 200 So. 535. ditional debt is within the spirit of .the exceptiOn. Part of statute which prohibited election on Federal Reserve Bank v. Panama City, 87 F . (2d) bonds as required by this section held separable. 677, 678. in State v. Calhoun county, 127 Fla. 304, 170 So.

Deferred interest coupons attached. to refund- 883. See also, State v. Calhoun County, 12-6 Fla. ing bonds held void, in Andrews v. Wmter Haven, 376, 170 So. 883. 148 Fla. 144, 3 So. (2d) 805. Bonds of Clearwater.-In State v. Clearwater,

Refunding bonds issued under . the Refunding 1.25 Fla. 73, 169 So. 602, bonds of city of ClearActs of 1931 without the approv111g vote of the water were held not to pledge new source of revelectorate required by this section ca~ry no great~r enue and hence not to validate tax notes. obligation of the taxing units respectively than d1d Voters held not required by this section to vote the refunded bonds. Statw v. Cone, 137 Fla. 412, separately on bonds for expenditures on two 414, 189 So. 47. parks, in State v. Dade county; 144 Fla. 448, 198

Illustrations.-Refunding bonds of .city o~ N e:v So. 102. Smyrna Beach held not to violate th1s secr10n, m Paving certificates of city of Jacksonville held State v. New Smyrna Beach, 148 Fl.a. 4~2 , 4 So. issued in vi?lation of this section, in Clover L eaf (2d) 660; of city of F t. Lauderdale, 111 R1chard v: v. Jacksor;':Ille, 145 Fla. 341, 199. So. 923. Ft Lauderdale 146 Fla 349, 351, 1 So. (2d) 202, A prov1s1on of a statute making bonds a lien of· Jensen Ro;d and Bridge District, in State v. upon property acquired by a county in constructJensen Road, etc., Dist., 144 Fla. 442, 198 So. 105; ing a bridge and its approaches and providing for of city of Auburndale, in State v. Auburndale, 144 the foreclosure of such liens by subjecting the Fla.· 210, 197 So. 739; of town of Punta Gorda . bridge and approaches to sale under foreclosttre in State v. Punta Gorda, 144 Fla. 73, 197 ~o. 734: decree violates this section, unless the issue of the of tax school district of Pinellas county, 111 State bonds is approved by a vote of the fre eholder v Special Tax School Dist., 143 Fla. 557, 197 So. electors of the county. State v. Calhoun County. 127· of city of Clermont in, State .v. Clermont, 125 Fla. 263, 265, 169 So. 673. 143' Fla. 434 196 So. 850; of the c1ty of Delray Other Illustrations.-Election to approve bonds Beach in St~te v. Delray Beach, 14? F~a. 132, 191 for construction of airport held in complianc(' so: 1B8; of the town of Lake Plac1d. 111 State. v · with this section, in State v. Monroe County, 14d Lake Placid, 140 Fla. 327, 191 So. 540; of .the City Fla. 111, 3 So. (2d) 754; election to approve cer · of Jacksonville, in Fleeman v. Jacksonville, 140 tificates of city of Tallahassee held sufficient in Fla. 478, 191 So. 840; of the city of Leesburg, in State v. Tallahassee, 142 Fla. 476, 195 Sc. 4o2; Fahs v. Kilgore, 136 Fla. 701, 187 So. 170; of the election to approve refunding bonds of city of city of Lakeland, in State v .. Lakeland, 132 Fl_a. Delray Beach held sufficient, in State v. Delray 489 490, 180 So. 754; of the City of Ft. Myers, m Beach, 140 Fla. 132, 191 So. 188; water bonds held Ft.'Myers v. State, 129 Fla . . 166, 176 So. 483; of valid. in State v. Punta Gorda, 124 Fla. 512, 514, the city of Daytona Beach, 111 State v. Da.ytona 168 So. 835. Beach, 126 Fla. 728, 171 So. 814; of the c1ty of § 7 Winter Haven, in State v. Walthal, 125 ~la. 423, HISTORY. 170 So. 115; of the city of St. Petersburg, 111 State Original section of Constitution 1885. v. St. Petersburg, 117 Fla. 300, ~5i So. 641; of the city of Miami, in State v. Miam1, 116 F.la. 517, 157 ANNOTATION. So. 13 ; of town of Boynton Beach, 111 s:ate v. Public improvement incidentally benefiting Boynton Beach, 116 Fla. 534, 156 So 539; of private corporations is not violative of section.Sarasota county, in State v. Sarasota county, 118 If a public improvement that is afforded by tax

[ 1174]


levies merely incidentally benefits private corporations along with other persons, the constitution is not violated in levying the tax for the public purpose, for the law contemplates that corpora .. tions shall participate in the burdens and benefits of taxations within appropriate limitations. Hunter v. Owens, 80 Fla. 812, 86 So. 839; D aytona Beach v. King, 132 Fla. 273, 181 So. 1, 116 A. L. R. 880; Whitney v. Hillsborough County, 99 Fla. fi28, 641, 127 So. 486; West v. Lake· Placid, 97 Fla. 127, 134, 120 So. 361; Venice v. State, 96 Fla . 527, 118 So. 308.

Where a bond issue or the expenditure of the proceeds of it incidentally benefits any chartered company or corporation along with other persons this section is not violated. State v. Belleair, 12fi Fla. 669, 170 So. 434.

This section is not violated when a city determines to issue its own bonds to pave its own streets, although one of the lot owners to be affected is a corporation which previously intended, or had agreed with other lot owners, to pave in front of its and their lots. Coral Gables v. Hayes, 74 F. (2d) 989, 991.

But section is violated if primary object is to benefit corporation.-If the primary object of a bond issue or its appropriation is to bent'fit the property of a corporation or chartered company then the provisions of this section are violated a nd the bonds are void insofar as they are a charge against the municipality. State v. Belleair, 125 Fla. 669, 677, 170 So. 434.

Where the officers of a town and a land company confederate together and promote bond issues and use them · primarily to promote private enterprises in which they have a vital personal interest, but in which the public is only incidentally interes ted, such bond issues will violate this s·ection, State v. Belleair, 125 Fla. 669, 677, 170 So. 434, holding bond issue of town invalid. See Olds v. Alvord, 133 Fla. 221, 183 So. 711 (eq. div. ct.); Olds v. Alvord, 136 Fla. 549, 188 So. 652 (eq . div. ct.); Olds v. Alvord, 139 Fla. 745, 191 So. 434 (eq. div. ct.).

In State v. Belleair, 125 Fla. 669, 674, 170 So. 434, citing State v. Hillsborough County, 113 Fla. 345, 151 So. 712, it was said: "In the case last cited we held that if county bonds were issued primarily for th e benefit of a privately owned subdivision and to lend the county's credit to tho:! owners thereof, the bonds were void as county's general obligation, though they might be valid as evidencing interest of bondholders in special assessment fund."

And the legislature may not authorize particular benefit to certain corporations.- The legislature may not under the guise of a municipal organiz'!tion authorize the borrowing or appropriation of money to the particular benefit of certain associations or corporations to the practical exclusion of others from such benefit. State v. Lake Placid, 117 Fla. 874, 883 , 158 So. 49i.

Illustrative cases.-Contract ' by which city obligated itself to pay owner of golf course each year for ten years a sum of money equal to the total sum of the state, county and municipal taxes assessed against such property was ultra vires. It was not within the power of the city to collect taxes and disburse or pay out the same in 8upport of a golf club owned, operated, and maintained by a private enterprise. Daytona Beach v. King, 132 Fla. 273, 288, 181 So. 1, 116 A. L. R. 880,

Circuit court properly denied a petition to validate bonds to be issued by a city where it appeared that the purpose of the proposed bond issue was for the primary benefit of a private enterprise and not primarily for the benefit of the public. Bradentown v. State, 88 Fla. 381, 102 So. 556, 36 A. L. R. 1297.

Statute authorizing tolls to be collected for passage over a highway bridge belonging to a county held not violative of this section. Masters v. Duval County, 114 Fla. 205, 215, 154 So. 172.

General improvement bonds issued by town held not violative of this section. West v. Lake Placid, 97 Fla. 127, 120 So. 361.

Bondholder's rights.-As to bondholder's rights where b,onds are declared void under this sectio'n, see State v. Belleair, 125 Fla. 669, 170 So. 434: Olds v. Alvord, 133 Fla. 221 , 183 So. 711 (eq div. ct.); Olds v.· Alvord, 136. Fla. 54{1, 188 So. 652 (eq. div. ct.); Olds v. Alvord, 139 Fla. 745, 191 So. 434 ( eq. div. ct.).

Quoted in Winter Park v. Dunblaine, 121 Fla. 600, 164 So. 366; Fernandina v. State, 143 Fla. 802, 197 So. 454 (dis. op.).

Stated in Coral Gables v. Coral Gables, 119 Fla. 30, 160 So. 476.

Cited in State v. Florida Keys Aqueduct Comm. , 148 Fla. 485, 4 So. (2d) 662; State v. Pompano. 136 Fla. 730, 188 So. 610; Winter Haven v. Klemm & Son, 132 Fla. 334, 181 So. 153; State v. Port St. Joe, 131 Fla. 858, 180 So. 29; State v. Cone, 131! Fla. 158, 177 So. 854; Boca Raton v. Moore. 122 Fla. 350, 165 So. 279 ; Thursby v. Stewart, 10:1 Fla. 990, 138 So. 742; Earle v. Dade County, 92 Fla. 432, 109 So. 331.

§ 8 HISTORY.


ANNOTATION. This section does not require taxes legally as

sessed to be paid as a prerequisite to the institution of proceedings for relief agains t illegal taxes, but only requires that such payment must be made before. the appli cant is relieved from th e illegal tax. Pickett v. Russell, 42 Fla. 116, 28 So. 764, cited in Harjim v. Owens, 52 F. (2d) 530, 533, reversed in 64 F. (2d) 306.

Where validity of entire tax is contested complainant wiii not be required to pay any ~art of the tax as a condition to the granting of a preliminary injunction. Roberts v. American Nat. Bank, 97 Fla. 411, 413, 121 So. 554; Ranger Realty Co. v. Hefty, 112 Fla. 654, 661, 152 So. 439.

When a tax that is complained of has been illegally levied or assessed because it is not authorized by law or is otherwise illegal under the controlling law, the owner of the property can seek relief from the illegal levy or assessment without paying or offering to pay any part of thP. unauthorized or illegal tax. Ranger Realty Co. v. Hefty, 112 Fla. 654, 661, 152 So. 439.

Over-Valuation.-Where a tax assessment is wholly illegal and void, a complaining taxpayer attacking such an assessment will not be required . as a condition precedent to maintenance of suit , to pay or tender into court any portion oi such tax; but where the alleged illegality consists of an over-valuation and excessive assessment of complainant's property as compared with other property of the same class., and the bill seeks the can-

[ 1176]

Art. IX,§ 9 CO NSTITUTION OF THE STATE OF FLORIDA Art. IX, § 10

cellation of the . tax assessment on the ground of such over-valuation, a court of equity may require the complainant to pay into the registry of the court a sum sufficient to cover such proportion of the assessment as the allegations of the bill show could have been legally assessed against complainant's property. West Virginia Hotel Corp. v. Foster Co., 101 Fla. 1147, 132 So. 842.

Intentional discrimination.-When a tax assessor imposes an assignment on a designated class of property of one owner and intentionally or purposely fails to assess large amounts of other property belonging to the same class and ~ubject to assessment the first assessment amounts to an unlawful discrimination and may be enjoined without paying any part of the tax as required by this section because the validity of the entire tax is assaulted. Florida Growers v. Stuart, 105 Fla. 538, 5'40, 141 So. 735, wherein bill was held insufficient to bring taxpayer with the rule.

When it is made to appear that a petitioner alleging illegality of assessment of real property owns personal property, properly assessed, and a~ to which there is no ground of illegality, relief should not be granted on the ground alleged. until the personal tax is paid or tendered. Tampa v. Mugge, 40 Fla. 326, 24 So. 489.

As to proceedings to cancel tax assessment and tax sale certificates as clouds on title, see Ranger Realty Co. v. Hefty, 112 Fla. 654, 152 So. 439; Orlando v. Equitable Bldg. , etc., Ass'n. 45 Fla. 507. 33 So. 986.

Applied, with leave to plaintiff to amen t! complaint so as to comply with this section, in Buchanan v. Tampa, 134 Fla. 618, 184 So. 104.

§ 9 HISTORY.

Original section of Constitution 1885; amended by Senate Joint Resolution 140, Acts of 1915, adopted at general election 1916; amended by House Joint Resolution 375, Acts of 1939, adopted at general election 1940.

ANNOTATION. Cited in Hackney v. McKenny, 113 Fla. 176.

190, 151 So. 524; DeSoto County v. State, 136 Fla. 362, 186 So. 804; Fleischer Studios v. Paxsori. 147 'Fla. 100, 103, 2 So. (2d) 293.

§ 10 HISTORY.


also, Bright Farms v. Broward County Port Authority, 117 Fla. 361, 378, 158 So. 70.

A purpose of this provision is to prohibit the use of public funds in enterprises or project s in which private parties have private rights or ow nership or use. There is in the organic provi<ion no purpose to forbid contributions by privat e p~rties to an enterprise or project that is wholly public in its nature, ownership, management and use. State v. Broward County Port Authority, l, A Fla. 42, 57, 151 So. 416, 719, 158 So. 62.

Quantum meruit for private contractor.-See Boca Raton v. Moore, 122 Fla. 350, 165 So. 2i!J

As to redemption of lands from tax certificates held by state after termination of initial period. see State v. Butts, 111 Fla. 630, 149 So. 746. H!l A. L. R. 946.

Section 42, C. 14572, Acts 1929, does not pledgP or loan the credit of the state to any individual. company, corporation or association, in violation of this section. Ridgeway v. Peacock, 100 Fla. 1297, 1302, 131 So. 140.

Chapter 18296 does not pledge the _state's credit contrary to this section. St~te v. Leatherman. 129 Fla. 585, 586, 176 So. 563.

As to housing authorities, see Lott ' v. Orlando. 142 Fla. 338, 346. 196 So. 313; Higbee v. Housing Authority, 143 Fla. 560, 577. 197 So. 479.

County fairs and agricultural exhibitions.-An act authorizing a county to acquire and hold property and erect thereon the necessarv structures for the purpose of conducting f~ir~ and agricultural exhibitions for the enhancement oi the agricultural interests of the county, :wd to issue bonds and levy . and collect taxes for such purpose, is not in conflict with this section. Earle v. Dade County, 92 Fla. 432, 109 So: 331.

"The improvement of a county highway is in its very nature a public work and the execution of a county purpose. That some of the property owners who are to be benefited and who consent to be assessed are chartered companies does not involve an unconstitutional lending of the county's credit to them. The enterprise which the !:ounty undertakes and for which it issues its bon<is remains a county enterprise. The special assessment to which the chartered company submit s is, like the assessment on natural persons, its ~pecia! contribution equitably to be ,paid in addition to its general tax. Such a thing happens when a municipality by its own means or credit improves a street and assesses corporate owners oi property to contribute to the city 's reimbursement: but there is no unconstitutionality therein . Coral

ANNOTATION. Gables v. Hayes, 74 F. (2d) 989; Venice v. State. History.-See Bailey v. Tampa, 92 Fla. 1030, 111 96 Fla. 527, 118 So. :!08; Hunter v. Owens. 8\J

So. 119. Fla. 812, 86 So. 839." Hillsborough Countv v. Special benefits to promoters do not necessarily Keefe, 82 F. (2d) 127, 129. certiorari den,ied in

render transaction illegal.-Public improvement 298 U. S. 679 , 56 S. Ct. 946, 80 L. Ed. H<JO. projects are designed to be beneficial . and the This section is an inhibition against all municrmere fact that some persons normally and fairly palities becoming stockholders in, obtaining or approfit more than others, does not render illegal propriating money for. or in any wise loaning their

. an undertaking that is duly authorized. Bright credits to. any corporation, association , institution Farms v. Broward County Port Authority, 117 or individual. Bailey v. Tampa, 92 Fla. 1030. 111 Fla. 361, 378, 158 So. 70. So. 119.

The constitution does not forbid private parties The showing that ~fficers and stockholders of to contribute to a public improvement, a deep- a private corporation having dealings with a muwater port harbor connected with na•, igable nicipality are also officers of the municipality is not waters of the Atlantic Ocean, no private rights be- sufficient to establish the conclusion that the dealing acquired in the public project by the contrib- ings were in violation of this section. Coral Gautors. State v. Broward County Port Authoritv. bles v. State, 128 Fla. 874, 878, 176 So. 40. 118 Fla. 42, 59, 151 So. 416, 718, 158 So. 62. S~e Paving of streets.-This section was not violated

: 1176 1


when a city determined to issue its own bonds to pave its own ;treets, although one of the lot owners to be affected was a corporation which previously intended, or had agreed with other lot owners, to pave in front of its and their lots. Although the city's paving tended to relieve the corporation from an immediate outlay by substituting the assessments made against the lots, still the paving and the issuance of the bonds to pay for it were proper municipal acts for proper municipal purposes, and were not contrary to the constitution.

, Coral Gables v. Hayes, 74 F. (2d) 9£9, 991, citing ' Venice v. State, 96 Fla. 527, 118 So. 308; Hunter

v. Owens, 80 Fla. 812, 86 So. 839. Where officers of insolvent development corpo

ration were also city commissioners and the city took over corporation's paving contracts. issued bonds in connection therewith, and assessed property for benefits received although corporation was bound to lot purchasers to furnish paving, the action of the city was violative of this section. Coral Gables v. Coral Gables, 119 Fla. 30, 160 So. 476.

Where city contractej to pay for services to be rendered in obtaining location of mills within the city, nothing in the contract violated this section as the city in no sense became a stockholder in, nor did it loan its credit to or in any way appropriate money to the credit of the corporation which constructed the pulp mill, where it was not shown that any inducement to the location of the pulp mills within the city 0ther than natural advantages was offered. Fernandina v. State, 143 Fla. 802, 805, 197 So. 454.

City cannot expend public funds to dredge a channel and basin for the use of an individual with which to carry on and maintain his private business. Brumby v. Clearwater, 108 Fla. 633, 634, 149 So. 203.

Incorporation of large rural area for the purpose of increasing the value of certain lands in the development of a resort was unconstitutional. State v: Lake Placid, 109 Fl<t. 419, 147 So. 468.

Acts authorizing municipalities to sell, lease or contract for the sale of lands held by them in trust for public purposes are not violative of this section. Bailey v. Tampa, 9); Fla. 1030, 111 So. 119.

Section was not violated by municipality leasing to a commission its unfinished water distribution system for use, with improvements to supply adequate water to the municipality. State v. Florida Keys Aqueduct Corum., 148 Fla. 485, 4 So. (2d) 662.

As to appropriation to advertise city, see Loeb v. Jacksonville, 101 Fla. 429, 134 So. 205, 79 A. L. R. 459. · Pleading and practice.-In a suit against a city

for a balance claimed under a contract to improve the city's waterfront. a plea of ultra vires, setting up that a pa;·t of the improvement was on land belonging to private citizens and the contract was therefore one to use the ft:mds and credit of the city for the benefit of individuals contrary to the prohibition of this section, was properly stricken. St. Petersburg v. · Meyers, 55 F. (2d) 810.

cannot and does not pledge or loan the credit of the state to the Everglades Drainage District and therefore does not violate this section. Martin v. Dade Muck Land Co., 95 Fla. 530, 532; 116 So. 449.

Acts 1929, Ch. 14430 violated this section. Hoadley v. Tarpon Springs, 99 Fla. 130, 125 So. 912.

This provision was inapplicable to city's conveyance of land to railroad to be used for certain purposes. Tampa Northern R. Co. v. Tampa, 104 Fla. 481, 140 So. 311, 141 So. 298.

Quoted in State v. Henderson, 130 Fla. 288, 290, 177 So. 539.

Cited in State v. Lake Placid, 117 Fla. 874, 158 So. 497; Taylor v. Williams, 142 Fla. 402, 407, 195 So. 175; Lee v. Atlantic Coast Line R. Co., 145 Fla. 618, 200 So. 71; Kathleen Citrus Land Co. v. Lakeland, 124 F la. 659, 667, 169 So. 356; Thursby v. Stewart, 103 Fla. 990, 995, 138 So. 742; Carlton v. Mathews, 103 Fla. 301, 330, 137 So. 815; Keene v. Ware, 106 Fla. 453, 143 So. 611 ; State v. Brevard County, 99 Fla. 226, 233, 126 So. 353; Amos v. Mathews, 99 Fla. 1, 107, 126 So. 308.

HISTORY. § 11

Section added by amendment, Senate Joint Resolution 135, Acts of 1923, adopted at general election 1924; amended by House Joint Resolution 35, Acts of 1929, adopted at general election 1930. ANNOTATION.

Intent and construction of section.-The conclusion is irresis tible that the people of Florida, in adopting this section desired that the income of the citizens and residents of F lorida should not be taxed by the state of Florida, and it is duty of this court to construe this provision so as to effectuate the will and intention of the people. State v. Keller, 140 Fla. 346, 354, 191 So. 542.

"Income tax" defined.-See State v. Keller 140 Fla. 346, 191 So. 542. '

Tax imposed upon all corporations, firms and' individuals receiving payment for electricity for light, etc., the amount of the tax to be determined by reference to a stated percentage of the "gross receipts derived from" stated intrastate business occupations, held in no sense a "tax upon the income of residents or citizens of this state" within the terms or the intent of this section. Lakeland v. Amos, 106 Fla. 873, 878, 143 So. 744.

License tax imposed upon attorneys by city ordinance, graduated according to gross receipts derived from practice of law, was unconsti tutional as applied to an attorney whose income would require payment of more than the minimum flat rate. State v. Keller, 140 Fla. 346, 191 So. 542.

Reduction and apportionment of appropriations. -As to reduction of appropriations and apportionment of salaries for services performed, and claims for materials furnished, resulting in a direct income tax in violation of this section, see State v. Lee, 121 Fla. 360, 163 So. 859.

Tax exemption applies only to "household goods and personal effects."-The tax exemption of this section applies only to that particular and limited kind of personal property designated in this section as "household goods and personal effects." Tarpon Springs v. Chrysostomides, 108 Fla. 500, 502, 146 So. 845.

As to sufficiency of plea in action· on refunding bonds that original bonds were issued to improve lands and aid private owners by increasing the value of their land, see Winter Park v. Dunblaine, 121 Fla. 600, 164 So. 366. Such personal property as appurtenances and

1927, appliances of a pressing club cannot be held to be [ 111'{]

Illustrative cases.-Chapter 12016, Acts


"household . goods and personal effects" and is therefore not subject to the constitutional exemption from taxation given by this section. ld.

And is deductiJle from total assessed value.This provision means that in making assessments of personal property for taxation the head of a family residing in this state shall be allowed an exemption ·of "household goods and personal effects to the value of five hundred dollars," such value of $500.00 to be deducted from the total assessable value of the household goods and personal effects of the head of a family residing in this state. Hackney v. McKenny, 113 Fla. 176, 188, 151 So. 524.

Cited in Fleischer Studios v. Paxson, 147 Fla. 100, 2 So. (2d) 293; State v. Simpson, 122 Fla. 582, 166 So. 227; DeLand v. Florida Public Service Co., 119 Fla. 804, 161 So. 735; Carlton v. Mathews, 103 Fla. 301, 137 So. 815 (con. op.).

§ 12 HISTORY.

Section added by amendment, Senate Joint Resolution 89, Acts of 1929, adopted at general election 1930.

ANNOTATION. The purpose of this section was to encourage

and stimulate the construction and operation of industrial plants within the state of Florida by securing to those persons entering into such ventures relief from taxation for a period of fifteen years. Tampa v. Tampa Shipbuilding, etc., Co., 136 Fla. 216, 218, 186 So. 411; Fleischer Studios v. Paxson, 147 Fla. 100, 107, 2 So. (2d) 293. See also, Jacksonville v. Continental Can Co., 113 Fla. 168, 151 So. 488; Burnett v. American Welding, etc., Co., 143 Fla. 740, 750, 197 So. 458, holding that practical non-discriminating application of this provision, within its own limitations, was manifestly intended.

By the adoption of this section industrial plants of the kind and character mentioned were not only authorized but were invited and importuned to take up their abode and operate in the state of Florida. National Container Corp. v. State, 138 Fla. 32, 49, 189 So. 4, 122 A. L. R. 1000.

And each word must be given its intended force and effect.-In order to effectuate the purpose and express comm:::nds of the first paragraph of this section, each and every one of the words, "established in this state on or after July 1, 1929, engaged primarily" must be given its intended force and effect. Burnett v. American Welding, etc., Co., 143 Fla. 740, 750, 197 So. 458.

But a strict construction should not be invoked. -In determining whether the exemptions in this section apply to the construction of steel ships, the supreme court, quoting from Jacksonville v. Continental Can Co., 113 F'a. 168, 151 So. 488. said: "We should not employ that strict construction used in criminal law, but such a construction which will carry out the real intention of the peo

stated period of time. Burnett v. American Welding, etc., Co., 143 Fla. 740, 751, 197 So. 458.

A corporation, whose primary business subsequent to July 1st, 1929, has been the manufacture of steel tanks, is entitled to the exemption provided by this section althougp such corporation, on the same site, prior and up to July 1st, 1929, manufactured similar steel tanks as a small part of its business. Id.

Tax exemptions exist only when and while "engaged primarily" in the manufacture of any of the articles stated in this section. Burnett v. American Welding, etc. , Co., 143 fla. 740, 752, 197 So. 458.

Meaning of "established" and "engaged primarily in the manufacture "-As used in the organic provision, the word "established" means put in condition to be "engaged primarily" in· the manufacture of steel vessels, etc.: and the words "engaged primarily in th e manufacture," etc., mean engaged principally, engaged chiefly, engaged predominantly, in the manufacture, etc. Burnett v. American Welding, etc., Co., 143 Fla. 740, 751, 197 So. 458.

"Steel vessels."-Manufacturer of metal containers, which were made of steel and tin in the proportion of ninety-eight and one-half percent steel and one and one-half percent tin, held engaged "in the manufacture of steel vessels" as those words are used in this section. Jacksonville v. Continental Can Co., 113 Fla. 168, 169, 1S1 So. 488.

Property used in the manufacture of steel ships is exempt under the provisions of this section. Tampa v. Tampa Shipbuilding, etc., Co., 136 Fla. 216, 220, 186 So. 411. · . "Refining_ of sugar .~nd ~ils."-Company engaged m the busmess of .refinmg of crude turpentine and the production of oil of turpentine, resin and nelio-resin", by use of a patented process, held engaged in the "refining of sugar and oils" as used in this section. Jacksonville v. Glidden Co., 124 Fla. 690, 691, 169 So. 216.

Pulp mill as "public nuisance."-This provision is a definite recognition that a pulp mill is not a "pub~ic nui~ance '' when properly operated, but the tmmumty effectuated will not protect such plants, should they fail ~o use the best known and available practical facilities to minimize the causes of noxious and disagreeable odors known by common knowledge to be emitted by all wood-pulp mills. National Container Corp. v. State, 138 Fla. 32, 189 So. 4, 122 A. L. R. 1000.

Cited in Panama City v. Pledger, 140 Fla. 629, 192 So. 470; State v. Lee, 123 Fla. 720, 167 So. 530; Tampa Shipbuilding, etc., Co. v. Tampa, 102 Fla. 549, 136 So. 458.

§ 13 HISTORY.

Section added by amendment, House Joint Resolution 753, Acts of 1929, adopted at general election 1930.

ple in making the instrument through tlieir rep- ANNOTATION. resentatives." Tampa v. Tampa Shipbuilding, etc., . Cross reference.-See § 320.08, Fla. Stats., 1941. Co .. 136 Fla. 216, 218, 186 So. 411. An automobile is a motor vehicle even though

It applies to estabiished as well as new plants.- not yet licensed or operated on the public highThis organic provision relates to industrial plants ways, and an ad_ valorem .tax on automobiles, being established in this state on. as well as after, July part of a stock m trade, ts not permissible. Nolan-1, 1929, when and while they are "engaged pri- Peeler Motors v. Wood, 128 Fla. 756, 758, 175 So. marily in the manufacture of" any one of the 523. stated articles, on or after July 1, 1929, within the Aerocars are trailers equipped with two wheels

[ 1178 l

Art. IX,§ 14 HOMESTEAD AND EXEMPTIONS Arl. X, ,§ 1

and a coupling by which they are attached to the rear end of automobiles. They are furnished with seats and some of them used for the transporta-

_tion of passengers and luggage to and from hotels and between hotels and passenger stations. They are "motor vehicles" within this section. Wood v. Club Transp. Service, 143 Fla. 449, 450, 196 So. 843.

Cited in McLin v. Florida Automobile Owners' Protective Ass'n, 105 Fla. 169, 170, 141 So. 147; State v. Lee, 121 Fla. 360, 372, 163 So. 859; State v. Cone, 140 Fla. 657, 659, 192 So. 797.

§ 14 HISTORY.

Section added by amendment, House Joint Resolution 1441, Acts of 1933, adopted at general election 1934.

ANNOTATION. This section and § 12 of this article are prima

rily designed to induce new enterprises and industries to be established in different parts of the state where they could be successfully operated for the growth, development and general welfare of the state. Fleischer Studios v. Paxson, 147 Fla. 100, 107, 2 So. (2d) 293.

The tax exemption of th is section may be enforced if it does not clearly impair the obligation of the statutory contract rights in violation of the federal constitution. Fleischer Studios v. Paxson, 147 Fla. 100, 112, 2 So. (2d) 293.

§ 15 HISTORY.

Section added by amendment, committee substitute for House J oint Resolution 45, Acts of 1939, adopted at general election 1940.

ARTICLE X. HoMESTEAD AND ExEMPTIONS.

§ 1 HISTORY.

Original section of Constitution 1885,


II. Head of family. A. Generally. · B. Wife or Widow.

III. Property Constituting Homestead. A. Generally. B. Real Property.

1. Generally. 2. Use and Occupancy of Improved Land. 3. Estate or Interest in Land. 4. Shape and Adjoining or Separate

Tracts. 5. Improvements or buildings.

IV. Claims Enforceable against Homestead. V. Acquisition and Protection of Homestead

Rights. VI. Alienation of Homestead Property.

VII. Termination of Exemption. A. In Gene~!. B. Abandonment of Homestead.

1. Generally. 2. Particular Instances.

C. Ceasing to Be Head of Family.

I. GENERALLY.

The constitution of 1868 contained practically the same provision. Cooper v. Taylor, 54 F. (2d) 1055, 1056; Shone v. Bellmore, 75 Fl-a. 515, 523, 78 So. 605.

A homestead is the place of actual residence of the owner and his family. Oliver v. Snowden, 18 Fla. 823; Matthews v. J eacle, 61 Fla. 686, 55 So. 865. See analysis line III, B, 2.

It is the "place of the home." Shone v. Bellmore, 75 Fla. 515, 523, 78 So. 605; Clark v. Cox, 80 Fla. 63, 85 So. 173.

And it is for the benefit of the family where it can be sheltered, a·nd live beyond the reach of financial reverses. Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A. L. R. 1409; Anderson Mill, etc., Co. v. Clements, 101 Fla. 523, 134 So. 588; Bigelow v. Dunphe, 143 Fla. 603, 608, 197 So. 328; Carter v. Carter, 20 Fla. 558; Hill v. First Nat. Bank, 79 Fla. 391, 398, 84 So. 190, 20 A. L. R. 270.

Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home, but they should not be applied so as to make them an instrument of fraud or imposition upon creditors. Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A. L. R. 1409; Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L. R. A. (N. S.) 1121; Drucker v. Rosenstein, 19 Fla. 191; Pasco v. Harley , 73 Fla. 819, 75 So. 30; Clark v. Cox, 80 Fla. 63, 85 So. 173; Read v. Leitner, 80 Fla. 574, 578, 86 So. 425; Milton v. Milton, 6~ Fla. 533, 58 So. 718; Hill v. First Nat. Bank, 79 Fla. 391, 396, S4 So. 190, 20 A. L. R. 270; Anderson Mill, etc., Co. v. Clements, 101 Fla. 523, 134 So. 588; Platt v. Platt, 50 Fla. 594, 39 So. 536; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 153, l 35 So. 521; West Florida Gro. Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, L. R A. i918B, 968; Tracy v. Lucik, 138 Fla. 188, 200, 189 So. 430; Bishop v. First Old State Bank, 142 Fla. 190, 193, 194 So. 488 ; In re Hallbauer, 280 F. 118; Croker v. Croker, 51 F. (2d) 11; In re David, 54 F. (2d) 140, 142.

The debtor is at all times entitled to the exemption provided by this section. Shollar Crate, etc., Co. v. Passmore, 148 Fla. 466, 470, 4 So. (2d) 530.

Which is not exclusive.-The exemption provision con tained in this section is not exclusive and is not a limitation upon statutory exemptions of life insurance. Cooper v. Taylor, 54 F. (2d) 1055, 1056, citing Milam v. Davis, 97 Fla. 916, 123 So. 668. 688.

The provision that the homestead "shall be exempt from forced sale under process of any court'' applies not only to formal and technical process, but to any judicial proceedings, in law or in equity, which seek the appropriation of the property to the payment of debts. West Florida Gro. Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209. L. R A. 1918B, 968, cited in Tracy v. Lucik. 1:\l> Pla 188. 200. 189 So. 430.

The homestead right is not limited to a mere holding of the legal title to the exempt property from forced sale but it is contemplated that there shall be a beneficial. peaceful and uninterrupted use and enjoyment of such property. Hill v. First Nat. Bank, 79 Fla. 391. 84 So. l 90, 20 A. L. R. 270; Cowdery v. Herring, 126 Fla. 567, 571, 143 So. 433, 144 So. 348.

A sale under a mortgage is not a forced sale [ 1179 l

. Art. X, _§ 1 CONSTITUTION OF THE STATE OF FLORIDA Art. X,§ 1

within the-·lneaning of the constitution. Hart v. Sanderson, 18 Fla. 103.

The interest of the wife depends upon the fact that the property is exempt to the husband. No interes t is vested in her, adverse to the husband, except in so far as her right to prevent alienation is given by the constitution. She has no right to exempt the same as a homestead, except unde~ the unusual circumstances of the cases where such right has been given her by the courts, and then she acts in behalf of the head of the family, who is not in position to make such claim himself. In re Marschall, 287 F. 187, 191. See analysis line II, B. .

She has a dower interest in her husband's homestead real estate. Shad v. Smith, 74 Fla. 324, 76 So. 897; Hutchinson v. Stone, 79 Fla. 157, 165, 84 So. 151. See annotation to § 2 of this article.

Applied in Phare v. Randall, 97 Fla. 858, 12~ So. 217 ; as to annulment of claim of homestead exemption, in Weber v. Harvey, 127 Fla. 706, 707, 174 So. 5.

Quoted in Rawlins v. Dade Lbr. Co., 80 Fla. 398, 401, 86 So. 334.

Cited in Smith v. St. Petersburg Novelty Works, 94 Fla. 540, 545, 113 So. 769; Milam v. Davis, 97 Fla. 916, 933, 123 So. 668; Union Indemnity Co. v. Worthingstun, 98 Fla. 242, 123 So. 759; Williams v. Dormany, 99 Fla. 496, 501, 126 So. 117; Craven v. Hartley, 102 Fla. 282, 135 So. 899; Hooker v. Wiggins, 104 Fla. 355, 357, 139 So. 803; Gray v. Moss, 115 Fla. 701, 714, 156 So. 262 (con. op.); Gray v. Winthrop, 115 Fla. 721, 156 So. 270, 94 A. L. R. 804; Boatright v. Jacksonville, 117 Fla. 477, 494, 158 So. 42; Newman v. Equitable Life As sur. Soc., 119 Fla. 641, 647, 160 So. 745; State v. Port of Palm Beach Dist., 121 Fla. 746, 164 So. 851; New York Life Ins. Co. v. Oates, 122 Fla. 540, 166 So. 269; State v. Special Road, etc., Dist., 133 Fla. 119, 182 So. 583; Enstrom v. Dunning, 136 Fla. 253, 256, 186 So. 806; State v. Arcadia, 137 Fla. 146, 187 So. 771; Croker v. Croker, 7 F. (2d) 218, 220.

II. HEAD OF FAMILY. A. Generally.

The exemptions allowed extend only to property owned by the head of a family residing in the state. Pasco v. Harley, 73 Fla. 819, 75 So. 30; Post v. Bird, 28 F la. 1, 9 So. 888; Lanier v. Lanier. 95 Fla. 522, 116 So. 867; Croker v. Croker, 51 F. (2d) 11. As to loss of exemption by ceasing to be head of family, see analysis line VII, C.

Who is the head of a family, must be ascertained from the facts of each case; and there is no invariable test, based solely upon dependence, and especially legal dependence. DeCottes v. Clarkson, 43 Fla. 1, 29 So. 442; Jetton Lbr. Co. v. Hall, 67 Fla. 61., 64 So. 440, 51 L. R. A. (N. S.) 1121; Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614; Caro v. Caro, 45 Fla. 203, 34 So. 309 ; Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 341, 123 So. 780.

In Dania Bank v. Wilson, etc., Fertilizer Co., 127 Fla. 45, 172 So. 476, there was no es tabli shment of a family relation between the father and the son and his family as entitled the father to claim a homestead.

As to continuing family relation which preserved homestead character of real estate, see Cumberland, etc., Mills v. Keggin, 139 Fla. 133, 136, 190 So. 492.

It is a question of fact to be alleged and proved. Tracy v. Lucik, 138 Fla. 188, 204, 189 So. 430.

To constitute a "head of a family" there must be at least two persons who live together in the relation of one family, and one of them must be "the head" of that "family.'' Johns v. Bowden, 68 Fla. 32, 66 So. 155; Johns v. Bowden, 72 Fla. 530, 73 So. 603; Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780; Jordan v. Jordan, 100 Fla. 1586, 1590, 132 So. 466; Dania Bank v. Wilson, etc., Fertilizer Co., 127 Fla. 45, 172 So. 476; Whidden v. Abbott, 124 Fla. 293, 168 So. 253.

Husband and wife may constitute a family under this section. Bigelow v. Dunphe, 144 Fla. 330, 331, 198 So. 13; Mille.r v. Finegan, 26 Fla. 29, 7 So. 140, 6 L. R. A. 813.

When a granddaughter was living with her grandfather at his home at the time of his death, and he had supported her from her birth until his death, he was at the time of his death the head of a family residing in this state. Adams v. Clark, 48 Fla. 205, 37 So. 734. See Johns v. Bowden, 68 Fla. 32, 66 So. 155, cited in O'Neal v. Miller, 143 Fla. 171, 172, 196 So. 478, 129 A. L. R. 295.

When the natural relation of husband and wife or parent · and child, or that of being in loco parentis, does not exist, the relation should be one in which an established and continuing personal authority, responsibility, and obligation actually rests upon one as "the head of a family" for the welfare of the others who in law should or in fact do· recognize and observe a family relation to the one as . "the head .of a family." Johns v. Bowden, 68 Fla. 32, 66 So. 155; Morehead v. Yongue, 134 Fla. 135, 139, 183 So. 804, 118 A. L. R. 1377; Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 341, 123 So. 780; Whidden v. Abbott, 124 Fla. 293, 168 So. 253; Dania Bank v. Wilson, etc., Fertilizer Co., 127 Fla. 45, 51, 172 So. 476.

A party must be a member of a family in good faith in order to be a member within the meaning of this section. Adams v. Clark, 48 Fla. 205, 37 So. 734.

One may be the head of a family residing in the state without being a citizen thereof, and one may be a citizen of a state without being the head of a family residing there, citizenship not being an essential to but one of the factors in determining the question of permanent residence vel non within the state. Croker v. Croker, 51 F. (2d) 11, 12.

Where wife procured divorce and obtained custody of minor child, husband being liable for necessities of life for child was held head of family and entitled to homestead exemption. Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780.

B. Wife or Widow. Circumstances may constitute a married woman

the head of the family, entitled to the benefits of the homestead exemption. Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 66, 188 So. 804; Bigelow

·v. Dunphe, 143 Fla. 603, 197 So. 328; Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13. See In re Marschall, 287 F. 187, 191.

Where husband absconded and left his wife residing in this state with children depending upon her, she may be held to constitute the head of her family. Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L. R. A. (N. S.) 1121. Otherwise, where the wife is without children. In re . Hallbauer, 280 F. 118.

[ 1180 ]

Art. X, § 1 HOMESTEAD AND EXEMPTIONS Art. X,§ 1

Married woman held not head of family. Bishop v. First Old '&tate Bank, 142 Fla. 190, 193, 194 So. 488; Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 66, 188 So. 804.

Whether or not she is such head is a question of fact that must be determined by proof. Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 67, 188 So. 804.

Widow held head of family. Caro v. Caro, 45 Fla. 203, 34 So. 309.

Widow held not head of family. Matthews v. Jeacle, 61 Fla. 686, 55 So. 865.

III. PROPERTY CONSTITUTING HOMESTEAD.

A. Generally. The exemptions of certain homestead property

have reference to the beneficial interests as owned by the head of a family in the specified classes of property. Coleman v. Williams, 146 Fla. 45, 47, 200 So. 207; Pasco v. Harley, 73 Fla. 819, 75 So. 30.

Personal property under this section is as effectively exempt from forced sale as is real es tate. Sneed v. Davis, 135 Fla. 271, 276, 184 So. 865.

There must be more than one thousand dollars worth of personal property before an execution reaches anything and the exemption is constant. Shollar Crate, etc., Co. v. Passmore, 148 Fla. 466, 470, 4 So. (2d) 530.

The pro tanto theory is applicable only when there is a secreting of assets which remain concealed. Shollar Crate, etc., Co. v. Passmore, 148 Fla. 466, 469, 4 So. · (2d) · 530. See Annotation to § 222.06, Fla. Stats., 1941.

Indebtedness of garnishee bank to debtor as a depositor after the bank has issued its cashier's check, which has not been been paid and payment has been stopped pending judgment in homestead

the vendee in a contract for the conditional sale of a horse recovered damages of a. third party for negligence in killing the horse, with which he bought another horse, the vendor acquired no lien on the new horse, and the vendee can hold it as exempt under the constitution of this state. Smith v. Gufford, 36 Fla. 481, 18 So. 717.

B. Real Property. 1. Generally.

The homestead exemption is not limited to the dwelling house of the owner and the subsidiary buildings located on the land, but extends · to the entire one hundred and sixty acres, and the improvements on the real estate when the land is actually occupied and lived on by the owner and head of the family and his family. Armour & Co. v. Hulvey, 73 Fla. 294, 74 So. 212.

The owner is only required to live on the land and the whole one hundred and sixty acres is exempt. McDougall v. Meginniss, 21 Fla. 362; Shone v. Bellmore, 75 Fla. 515, 523, 78 So. 605.

The exemption exists without regard to the use that may be made of that portion of the tract not covered by the residence and enclosures. McDougall v. Meginniss, 21 Fla. 362.

An apartment house for renting purposes is not a "business house of the owner" of a homestead within the meaning of this section. McEwen v. Larson, 136 Fla. 1, 6, 185 So. 866, citing Anderson Mill, etc., Co. v. Clements, 101 Fla. 523, 134 So. 588; Jordan v. Jordan, 100 Fla.' 1586, 132 So. 466; Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So. 900.

Evidence held to establish homestead character of land. J ahn v. Purvis, 145 Fla. 354, 356, 199 So. 340; Hart v. Gulf Fertilizer Co., 91 Fla. 991, 993, 108 So. 886.

exemption proceedings, may be claimed as exempt 2. Use and Occupancy of Improved Land. by debtor. Tracy v. Lucik, 138 Fla. 188, 199, 189 Only improved property may acquire homestead So. 430. character. Yowell v. Rogers, 128 F la. 881, 883, 175 ·

Amount due contractor for erecting building.- So. 772. A contractor who purchases material and uses it "As against a judgment creditor a piece of land in the erection of a building for another can not with no house upon it cannot be claimed as a have an exemption in the amount due him for homestead, although the claimant has made preperecting the building, as against claims for the pur- arations for building and moving into a home chase price of the material so purchased and used. thereon. Drucker v. Rosenstein, 19 Fla. 191; MatGiddens v. Dickenson, 60 Fla. 320, 53 So. 929. thews v. J eacle, 61 Fla. 686, 55 So. 865; Pasco v.

Partnership property.-" At ·any time before firm Harley, 73 Fla. 819, 75 So. 30; First Nat. Bank v. creditors acquire a lien upon partnership assets, Peel, 107 Fla. 413, 145 So. 177. The case of Milton the partners acting in good faith may sever their v. Milton, 63 Fla. 533, 58 So. 718, is not in conflict joint ownership of the property by dividing it with, nor was its effect to overrule the earlier amongst themselves in severalty, so that it be- cases that were decided on materially different · comes individual property. Thereafter, the indi- facts." Porter-Mallard Co. v. Dugger, 117 Fla. vidual owners, if heads of families residing in this 137, 139, 157 So. 429. · state, may successfully claim a homestead exemp- A homestead necessarily includes the idea of a tion out of such property, even though the part- residence. Clark v. Cox, 80 Fla. 63, 68, 85 So. 173; nership firm was insolvent when the division of Anderson Mill, etc., Co. v. Clements, 101 Fla. 523, such property occurred and although the purpose 134 So. 588. And a piece of land' never occupied as of the dissolution was to enable the former part- a dwelling place or a home is not a homestead ners to exempt the property from partnership within the meaning of the constitution. Drucker debts. Lee v. Bradley Fertilizer Co., 44 Fla. 787, v. Rosenstein, 19 Fla. 191; Oliver v. Snowden, 18 33 So. 456." In re David, 54 F. (2d) 140, 141. Fla. 823; Semple v. Semple, 82 Fla. 138, 142, 89

A debtor who is a member of a partnership en- So. 638. gaged in mercantile businesJ is not entitled to se- "The place must be not a theoretical, but a real lect from the partnership goods levied on by virtue place of residence. Solary v. Hewlett, 18 Fla. 756; of an execution against him, and to have exempted Matthews v. Jeacle, 61 Fla. 686, 55 So. 865; Pasco to him any portion of the partnership goods under v. Harley, 73 Fla. 819, 75 So. 30, 32." Croker v. the exemption law. State v. Bowden, 18 Fla. 17. Croker, 51 F. (2d) 11, 12. .

Property purchased with proceeds of recovery The actual use and occupation by the owner and for destruction of property subject to lien.-When his family of premises designed as a homestead ia

[ 1181 ]

Art. X, _§ 1 CONSTITUTION OF THE STATE OF FLORIDA Art. X, § 1

essential to impress the property with that character. The mere intenton to occupy them as such, where such intention is not. manifested by acts as well as words, is not sufficient. Solary v. Hew-· lett, 18 Fla. 756; Semple v. Semple, 82 Fla. 1~8, L41, 89 So. 638; Anderson Mill, etc., Co. v. Clements, 101 Fla. 523, 134 So. 588; Lyon v. Arnold, 46 F. (2d) 451 , 452; Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338; Brandies v. Perry, 39 Fla. 172, 22 So. 268, 63 Am. St. Rep. 164.

And there must be the intention of permanency in the use and occupation of the home. Croker v. Croker, 51 F. (2d) 11, 13, citing Smith v. Croom, 7 Fla. 81. :

"Actual occupancy of a home with intention 1to

remain there and make it the home of the family, the place of their actual use and occupancy, is essential to the homestead right. Loring v. Wittich,

' 16 Fla. 498 ; Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338; Drucker v. Rosenstein, 19 Fla. 191." Croker v. Croker, 51 F . . (2d) 11, 12.

But it is not essential that the occupancy should be continuous, provided the intent to return to it as the homestead continues, and the absence therefrom is reasonably shown to be for the temporary benefit of the family. Read v. Leitner, 80 Fla. 574, 577, 86 So. 425.

Illustrative cases.-Where a person purchases property with the openly avowed intention of making it a home and residence for himself and family and is actually engaged in putting the property in condition to be occupied, ' and where it is clearly the manifest intention of the owner to occupy the premises immediately as a home, and this intention is evidenced oJY specific acts and doings that are not .compatible with a different intention, and there is nothing done by the claimant showing a different intention, or that is inconsistent with the asserted intention to make the place his homestead, the homestead character will attach. Semple v. Semple, 82. Fla. 138, 89 So. 638.

The head of a family made a deed of conveyance to his wife of real estate up.on which he commenced to make improvements, but which was not then in a condition for occupancy as a home or otherwise. Held, that the execution of such deed in connection with other circumstances evidences an intention not compatible with an intention by the grantor to claim the property as a homestead when ready for occupancy, and the conveyance by the husband to the wife was a valid conveyance. Id.

Iiams, 146 Fla. 45, 47, 200 So. 207; Menendez v. Rodriguez, 106 Fla. 214, 221, 143 So. 223 (con. op.).

Possession of land is a sufficient interest to cause the exemption provided for under the constitution to attach, when the possession is held by the head of a family with the consent and upon the agreement of the owner of the title. Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614.

Estate by entireties.-There may be homestead exemption rights in estates by the entireties subject to the wife's rights of survivorship in such estates. Coleman v. Williams, 146 Fla. 45, 47, 200 So. 207; Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223; Oates v. New York Life Ins. Co., 117 Fla. 892, 893, 152 So. 671; Knapp v. Fredricksen, 148 Fla. 311, 315, 4 So. (2d) 251.

If homestead real estate had been acquired in the name of husband and wife in fee simple as tenants by the entireties, and had so remained as a homestead occupied by him and his wife and children, until his death, the widow at his death would have by law taken the entire property by right of survivorship; and there would be no homestead exemption in the property after the death of the husband, unless the widow became the head of the family and continued to occupy the property with her family as a homestead ; and if not duly alienated by her, the property would at her death inure or descend to her heirs. Norman v. Kannon, 133 Fla: .710, 714, 182 So. 903.

Separate property of wife.-A husband who is the head of a family residing in this state, is not entitled to homestead exemption in the separate property of his wife where the husband has no title or interest legal or equitable in such property, but merely lives with his wife upon her separate property and has the care and management of the pr-operty of his wife. Witt Co. v. Moody, 72 Fla. 459, 73 So. 582.

4. Shape and Adjoining or Separate Tracts. No particular shape is required.-There is no

expression to be found in the opinions of the supreme court of Forida that the tract of land constituting a homestead shall be in any particular shape. There is no reason why the owner of a homestead which lies in a compact usual body may not sell such parts of it as he may desire and retain the remainder for his homestead so long as he does not separate one part of his homestead thus remaining from another by intervening lots or blocks which he has conveyed to others. Shone T. Bellmore, 75 Fla. 515, 525, 78 So. 605.

3. Estate or Interest in Land. And the constitution does not expressly require The homestead exemption applies to the bene- contiguity of lands for the exemption of a home

ficial interest owned by the head of the family. stead. Shone v. Bellmore, 75 Fla. 515, 525, 78 So. Morgan v. Bailey, 90 Fla. 47, 105 So. 143. 605. The question whether actual contiguity is re-

Divorced husband held sole owner of beneficial quired must be determined in each case on its interest in lots with homestead exemption rights peculiar facts. Clark v. Cox, so Fla. 63, 69, 85 therein. Coleman v. Williams, 146 Fla. 45, 49, 200 So. 173. So. 207. But it is held that exemption does not extend to

And it is not necessary that the entire estate be detached tracts.-lt was definitely held in Brandies vested in one occupying land as a · homestead be- v. Perry, 39 Fla. 172, 22 So. 268, 63 Am. St. Rep. fore such property may be impressed as homestead 164, that where the head of a family lives with his in character. Morgan v. Bailey, 90 Fla. 47, 105 family upon one tract or parcel of land he cannot So. 143; Milton v. Milton, 63. Fla. 533, 58 So. 718. in order to exempt a hundred and sixty acres as a

The exemption may attach to any estate in land homestead include in his exemption a tract of land o.wned by the head of a family residing in this separated from that on which he lives by another state whetheF it is a freehold or less estate, if the tract not owned by him. And in Milton v. Milton, land does not eJtCeed the designated area and it is 63 Fla. 533, 58 So. 718, it was held that "a tract of in fact the family home place. Coleman v. Wil- land detached from or not contiguous to the land

[ 1182 ]


claimed as a homestead is not a part of the homestead exemgtion." Shone v. Bellmore, 75 Fla. 515, 524, 78 So. 605; Clark v. Cox, 80 Fla. 63, 67, 85 So. 173.

The conveyance of three several pieces of land from the homestead, ther~by separating portions of the ho_mestead lands from other portions, does not destroy the . homestead character of the parts separated from the main body by the pieces conveyed. Croker v. Croker, 7 Fla. (2d) 218, 220.

5. Improvements or Buildings. The urban homestead is confined to the resi

dence and business house of the owner. Anderson Mill, etc., Co. v. Clements, 101 Fla. 523, 134 So. 588; Jordan v. Jordan, 100 Fla. 15156, 132 So. 466.

And where other improvements or buildings are not physically connected with the residence or business house, such improvements or buildings and the land upon which they are situated may be sold under execution ior the owner's debts. Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So. 900.

The exemption extends to a reasonable portion of the homestead improvements in addition to the owner's actual residence, when it appears that the improvements concerned are being used as a means of making the owner's livelihood. Cowdery v. Herring, 106 Fla. 567. 571, 143 So. 433, 144 So. 34B . distinguished in McEwen v. Larson, 136 Fla. 1, 185 So. 866. See analysis line VII, B.

IV. CLAIMS ENFORCEABLE AGAINST HOMESTEAD.

property. It was held t)-lat' plaintiffs had a lien which was enforceable against the property claimed as a homestead by defendant. Id.

Thus an enforceable lien exists for money of another used by owner in improvement of homestead property. Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A. L. R. 1409. In that case the defendant converted funds belonging to a bread company into labor and materials to make substantial improvements to his home without the knowledge or consent of the bread company. The court enforced the lien of the trustee in bankruptcy of the bread company against the homestead of the defendant. LaMar v Lechlider. 135 Fla. 703, 710, 185 So. 833.

An obligation contracted for tJ:;e purchase price is enforceable against the homestead. In re David, 5.4 F. (2d) 140, 141.

The meaning of the word "obligation" is a debt contracted to be paid, or a duty to be performed. by the purchaser as the consideration of the purchase of the property. Platt v. Platt, 50 Fla. 594,

139 So. 5"36. As to instances of such obligation, see Wilhelm v. Locklar, 46 Fla. 575, 35 So. 6, 110 Am. St. Rep 111~ Porter v. Teate, 17 Fla. 813. "No part of any property, whether it is repre

sented by cash, notes, chattels or realty, is exempt from sale for the payment of obligations contracted for the purchase price of said property. However, there must be some identification of the property involved to enable the claimant to proceed against it. Cator v. Blount, 41 Fla. 138, 25 So. 283; Giddens v. Dickenson, 60 Fla. 330, 53 So. 929; Smith v. Gufford, 36 Fla. 481, 18 So. 717, 51

A homestead is not subject to process of attach- Am. St. Rep. 37; \Vilhelm v. Locklar, 46 Fla. 575, ment or execution for the debts of the owner, with 35 So. 6, 110 Am. St. R.:p. 111. In following such certain exceptions, unless it has been abandoned. property, it is not necessary to trace the identical Hart v. Gulf Fertilizer Co., 91 Fla. 991, 108 So. 886. coins or bills of which it is composed, as substan-

And an ordinary judgment against the head of tial identity is all that need be proved." Citizens' a family is not a lien upon his homestead and does Snte Bank v. Jones, 100 Fla. 1492, 1496, 131 So. not become a lien thereon when the title thereto 369. passes to another after the judgment is obtained. A partner who purchases the partnership assets, Hutchinson Shoe Co. v. Turner, 100 Fla. 1120, 130 paying therefor some cash and assuming the partSo. 623; Lewton v. Hower, 18 Fla. 872. nership debts, when sued by the retiring partner

A judgment upon an indebtedness not constitut- for failure to pay these debts can not claim an exing an obligation .contracted for the purchase of a emption out of the assets as against this equity. homestead is not a lien thereon. Wilhelm v. Lock- Platt v. Platt, 50 Fla 594, 39 So. 536. lar, 46 Fla. 575, 35 So. 6, 110 Am. St. Rep. 111. See The exception rendering property liable for the Miller v. Finegan, 26 Fla. 29, 7 So. 140, 6 L. R. purchase thereof must be strictly construed in A. 813. favor of the family. Wilhelm v. Locklar, 46 Fla.

A judgment grounded on contract for money 575, 35 So. 6, 110 Am. St. Rep. 111; Cator v. loaned is not enforceable against one's homestead. Blount, 41 Fla. 13-8, 25 So. 283; Platt v. Platt, 50 Jones v. Ca~penter, 90 Fla. 407, 106 So 137, 43 Fla. 594, 39 So 536 ; Porter v. Teate, 17 Fla. 813. A . L. R. 1409. It was held in the last two cases cited that whether

But a judgment lien on property before it ac- there was an exchange or a "sale" of lands cannot quired homestead status is enforceable against the affect the principles. Citizens' State Bank v. homestead. Morehead v. Yongue, 134 Fla. 135, Jones, 100 Fla. 1492; 1495, 131 So. 369. 138, 183 So. 804, 118 A. L. R. 1377; Pasco v. Har- But the exception must not be so construed as ley, 73 Fla. 819, 75 So 30; First Nat. Bank v. Peel, to render it meaningless or nugatory. Platt v. 107 Fla. 413, 145 So. 177; Porter-Mallard Co. v. Plttt, 50 Fla. 594, 39 So. 536. Dugger, 117 Fla. 137, 157 So. 429; In re Porter, Landlord's lien.-The constitutional exemption 3 F. Supp. 582, 583; Lyon v. Arnoltl, 46 F. (2d) of personal property to the hee.d of a family re-451. siding in this state can not be claimed by a tenant

And a lien may be enforceable even though not as against the lien for rent in favor of the landlord speci-fically included in the section. LaMar v. on any of the agricultural products raised on the Lechlider, 135 Fla. 703, 710, 185 So 833. land rented. Hodges v. Cooksey, 33 Fla. 715, 15

It was mutually agreed that plaintiffs shouHl So. 549. Nor ca1, tenant claim e~emption as build an addition to defendant's house, and receive against the claim for supplies furnislled by the therefor "an interest in the property" and a place landlord. Cathcart v. Turner, 18 Fla. 837. But when~ plaintiffs could live during their old age. the tenant can claim · such exemption, as against There was no express agreement, however, for the distress warrant for rent, out of any property the conveyance to them of any interest in the other than agricultural product grown upon the

[ 118~ 1

Art. X, § 1 CONSTITUTION OF THE STATE OF FLORIDA Art. X, § 1

land rented. 780.

Schofield v. Liody, 35 Fla. 1, 18 So.

V. ACQUISITION AND PROTECTION OF HOMESTEAD RIGHTS.

Actual ownership of land by head of family and its occupation by him and his family impresses it with the character of a homestead. Such has been the law in this state since the Constitution of 1868. Baker v. State, 17 Fla. 406; Solary v. Hewlett, 18 Fla. 756; Finlayson v. Love, 44 Fla. 551, 33 So. 306; Redick v. Redick, 38 Fla. 252, 21 So. 101; Seashole v. O'Shields, 139 Fla. 839, 842, 191 So. 74; Raulerson v. Peeples, 77 Fla. 207, 81 So. 271: Hutchinson Shoe Co. v. Turner, 100 Fla. 1120, 130 So. 623. As to necessity for owner being head of family, see analysis line II. As to necessity for use and occupancy, see analysis line III, B, 2.

And no other act is required.-Hutchinson Shoe Co. v. Turner, 100 Fla. 1120, 130 So. 623. As to <iesignation of homestead by owner, see §§ 222.01, 222.02, Fla. Stats., 1941, and annotations thereto.

Method of exempting personal property.-See '§ 222.06, Fla. Stats., 1941, and annotation thereto.

The exemption of personal property is as sacred as any other part of the homestead exemption and a person claiming it is entitled to the protection of the courts in any proceeding which seeks the appropriation of it to the payment of debts. Tracy v. Lucik, 138 Fla. 188, 200, 189 So. 430; West Florida Gro. Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209.

Forced sale of homestead in violation of exemption rights is void. And a mere failure to resist the sale is not a waiver of such rights. Albritton v. Scott, 73 Fla. 856, 74 So. 975.

Set-off in action for invasion of homestead right. -To allow a defendant the benefits of a plea of set-off in an action brought against him to recover the amount of damage sustained because of his wrongful invasion of plaintiff's homestead right would, if defendant's plea prevail, result in the subjection by indirect methods of exempt property to the payment of defendant's demands against the plaintiff, although its subjection thereto directly is not permitted. Hill v. First Nat. Bank, 79 Fla. 391, 84 So. 190, 20 A. L. R. 270.

VI. ALIENATION OF HOMESTEAD PROPERTY.

See annotation to § 4 of this Article.

VII. TERMINATION OF EXEMPTION.

A. In General. When the estate or interest of the owner in the

homestead land terminates, the homestead exemption of such owner therein necessarily ceases. Coleman v. Williams, 146 Fla. 45, 47, 200 So. 207; Menendez v. Rodriguez, 106 Fla. 214, 221, 143 So. 223 (con. op.).

As to husband's interest in estate by entireties, see Menendez v. Rodriguez, 106 Fla. 214. 221, 143 So. 223 (con . op.); Knapp v. Fredricksen, 148 Fla. 311, 4 So. (2d) 251.

First Nat Bank, 79 Fla. 391, 399, 84 So. 190, 20 A. L. R. 270. .

When husband and wife conveyed property for full consideration, moved off of the property and delivered possession to their vendees, they thereby abandoned the property as the homestead and brought to an end the homestead status of that property; and when th ey later took com.:eyance of the property from their vendees as an estate by the entireties and re-established their home thereon, the property then took on a new and independent homestead status unconnected with that which had existed prior to the abandonment. Miller v. Mobley, 136 Fla. 351, 352, 186 So. 797.

It cannot be waived by parol declarations or by mere negative silence, or failure to act. McMichael v. Grady, 34 Fla. 219, 15 So. 765, cited in Tracy v. Lucik, 138 Fla. 188, 203, 189 So. 430.

Mere failure to object to forced sale in violation of exemption rights is not a waiver of such rights. Albritton v. Scott, 73 Fla. 856, 74 So. 975.

A waiver of any benefit of exemption laws contained in a promissory note was held inoperative as against the policy of the exemption laws. Otherwise, as to a mortgage or pledge of specific property. Carter v. Carter, 20 Fla. 558, cited in McMichael v. Grady, 34 Fla. 219, 15 So. 765 . See Tracy v. Lucik, 138 Fla. 188, 202, 189 So. 430.

B. Abandonment of Homestead.

1. Generally. Homestead real estate may be abandoned as a

homestead. Suttle v. Wold, 117 Fla. 802, 804, 158 So. 447; Croker v. Croker, 7 F. (2d) 218, 220.

In whole or in part.-"Homestead real estate may in whole or in part be abandoned as a homestead, by express declaration and conduct consonant with such declaration , or by conduct that clearly manifests an intention to abandon or relinquish the homestead real estate or a part thereof as the homestead of the family. McGregor v. Kellum, 50 Fla. 581, 39 So. 697; Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Clark v. Cox, SO Fla. 63, 85 So. 173." Gulf Refining Co. v. Ankeny, 102 Fla. 151, 153, 135 So. 521.

And right to exemption may be lost by abandonment of the property as the home of the family. Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Pasco v. Harley, 73 Fla. 819, 75 So. 30, 33; Croker v. Croker, 51 F. (2d) 11, 12.

What constitutes an abandonment is determined from the circumstances of each case as it arises. Gulf Refining Co. v. Ankeny, 102 Fla. 151, 154, 135 So. 521, wherein evidence warranted submission of issue to jury under appropriate instructions.

A temporary absence for purposes of business education, health, pleasure or family comfort wi ti not de~rive the homestead claimant of his right, unless 1t be apparent that there was a design of permanent abandonment; but a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of it~ homestead character. Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Matthews v. J eacle, 61 Fla. 686, 55 So. 865; Read v. Leitner, 80 Fla. 574, 577, 86 So. 425.

A homestead can be waived only by abandon-ment or by alienation in the manner provided by 2. Particular Instances. law. Clark v. Cox, 80 Fla. 63, 69, '85 So. 173. Instances of abandonment.-Lanier v. Lanier,

"ThP. benefits of the homestead exemption law 95 Fla. 522, 116 So. 867; McGregor v. Kellum, 50 may not be waived by a householder in such a way Fla. 581, 39 So. 697. as to deprive his family of its protection." Hill v. Instances of property not abandoned.-United

[ 1184]


States Fidelity, etc., Co. v. Marshall, 148 Fla. 286, 4 So. (2d) 337; O'Neal v. Miller, 143 Fla. 171, 196 So. 478, 129 A. L. R. 295.

Renting part of property.-Where owner built on a severable part of homestead city property an apartment house with a garage for rental purposes it was held that he thereby abandoned -the portion of the original homestead land that was reasonably appropriate for the rental purposes of such apartment and garage. McEwen v. Larson. 136 F la. 1, 6, 185 So. 866, distinquishing Cowdery v. Herring, 106 Fla. 567, 143 So. 433, 144 So. 348.

, holding owner living on her homestead property merely rented out a garage and separate structure used as a paint shop by the renter f01 the purpose of using the rents as a means of livelihood.

When owner of urban homestead gives another .permission to erect a small residence on a portion of it and his wife has kno\\rledge of and acquiesces in such permission the said homestead to that extent is abandoned. Anderson Mill, etc., Co. v. Clements, 101- Fla. 523, 134 So. 588.

The mere platting of land without the limits of an incorporated city or town and sale of lots according to such plat, which land is owned by the head of a family and occupied as a homestead does not destroy its character as a homestead nor conclusively show an abandonment of the homestead by the owner. Shone v. Bellmore, 75 F la . 51 5, 78 So. 605, cited in Clark v. Cox, 80 Fla. t\3, 68, 85 So. 173.

The conveyance of a strip across land for a railroad right of way did not deprive the remaining homestead real estate of . its homestead character so as to withhold or abandon the right of exemption as a homestead in the land on both sides of the strip. Clark v. Cox, 80 Fla. 63, 70, 85 Sd. 173.

C. Ceasing to Be Head of Family. Right to exemption may be lost by owner ceas

ing to be head of a family residing in the state. Matthews v. Jeacle, 61 F la. 686, 55 So. 865, 867; Herrin v. Brown, 44 Fla. 782, ~3 ,So. 522. 103 Am. St. Rep. 182; Croker v. Croker, 51 F. (2d) 11, 12.

Where husband and wife were separated and the family dispersed, he was no longer the head of a family within the meaning of this section. Jordan v. Jordan, .100 F la. 1586, 1589, 132 So. 466, citing Matthews v. J eacle, 61 Fla. 686, 55 So. 865; Johns v. Bowden, 68 Fla. 32, 66 So. 155, Johns v. Bowden, 72 Fla. 530, .73 So. 603.

On death of wife, after all the children had permanently left the parental roof, the former homestead ceased to be exempt to the husband who survived the wife. Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am. St. Rep. _182, Whidden v. Abbott, 124 Fla. 293, 168 So. 253, cited in Cumberland, etc., Mills v. Keggin, 139 Fla. 133, 136, 190 So. 492.

§ 2 HISTORY.


Norton v. Baya, 88 Fla. 1, 102 So. 361; Croker v. Croker, 51 F. (2d) 11, 12.

It is a continuing provision, and applies to and protects the rights of the children after the death of the head of the household until they themselves have seen fit to lawfully convey away or otherwise part with those rights. Barnott v. Proctor, 128 Fla. 63, 72, 174 So. 404 (dis. op.).

Homestead exemption inures to benefit of widow and heirs upon death of head of familv. Story v. F irst Nat. Bank, etc., Co., 103 Fla. 39.9, 404, 139 So. 179; Donly v. Metropolitan Realtv. etc.. Co., 71 Fla. 644, 72 So. 178; Palmer " . P~lmer, 47 Fla. 200, 35 So. 983; Hutchinson v. Stone, 79 F la. 157, 165, 84 So. 151.

And inures to the heirs where there is no widow. Cumberland, etc., Mills v. Keggin, 139 Fla. 133, 13 6, 190 So. '492.

Unless the consent of the wife can be obtained to its alienation in the lifetime of the husband. Palmer v. Palmer, 47 Fla. 200. 35 So. 983, ';ited in Shone v. Bellmore, 75 Fla. 515, 521, 78 So. 605.

"This provision can be applicable only when the estate of the owner in the homestead land does not terminate before or at the death of such owner." Menendez v. Rodriguez, 106 Fla. 214, 221, 143 So. 223 (con. op.).

The exemption is the same as the owner enjoyed.-In Miller v. Finegan, 26 Fla 29, 7 So. 140, 6 L. R. A. 813, the supreme court held in effect that those who inherit the homestead take with it, and as an incident to the inheritance, the same exemption from the debts of the deceased head of the family who owned it as he enjoyed at the t ime of his death. Such was also the conclusion r eached in Godwin v. King, 31 Fla. 525, 13 So. 108; Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614. See also, Hutchinson v. Stone, 79 Fla. 157, 84 So. 151; In re Comstock's Estate, 143 Fla. 500, 505, 197 So 121. See Scull v. Beatty, 27 Fla. 426, 9_ So. 4; I;Iinson v. Booth, 39 Fla. 333, 22 So. 687; McDougall v. Meginniss, 21 Fla. 362; Armour & Co. v. Hulvey, 73 Fla. 294, 74 So. 212; Pasco v. Harley, 73 Fla. 819, 75 So. 30; Raulerson v. Peeples, 77 Fla. 207, 209, 81 So. 271; Seashole v. O'Shields, 139 Fla. 839, 191 So. 74.

The right of the heirs to the exemption after it passes to them is not dependent upon a use by them of such property as a homestead. Miller v. Finegan, 26 Fla. 29, 7 So. 140, 6 L. R. A. 813; Raulerson v. Peeples, 77 Fla. 207, 81 So. 271; Hill v. First Nat. Bank, 79 Fla. 391, 399, 84 So. 190, 20 A. L. R. 270.

Liability of personal property for widow's .debts after it has inured to her.-After personal property of less than $1,000 in value descended and inured to a widow upon the death of the husband it remained exempt from the debts of the hus~ band incurred during his life; but after inuring to the widow it was subject to her valid debts. at least unless she at once became the head of a family and entitled to a homestead exemption in the personal proper'ty which inured to her at her husband's death. Seashole v. O 'Shields, 139 Fla.

ANNOTATION. 839. 844, 191 So. 74. Cross references.-As to conveyance to wife, The homestead is not an asset of the estate of

and disposition by will, see annotation to ·§ 4 of decedent.-Raulerson v. Peeples, 77 Fla. 207, 210, this Article. For statutes regulating dower and 81 So. 271. And neither executors nor adminisdescent, see Fla. Stats., 1941, §§ 731.27 and 731.34. trators have an)' jurisdiction over the homestead.

This section is construed most liberally in favor Spitzer v. Branning, 135 Fla. 49, 56, 184 So. 770. of the heirs, whether adult or infant, resident or In Carter v. Carter, 20 Fla. 558, it was held that nonresidents on the homestead or in the state. when property which may be claimed as exempt

Fla. Stat.-38 [ 118:1 ]

Art.X,§3 CONSTITUTION OF THE STATE OF FLORIDA Art. X,§ 4

from the satisfaction of debts has been sold or converted into funds by administrators, the heirs entitled may claim the value out of the funds in the hands of the administrators. Hill v. First Nat. Bank, 79 Fla. 391, 397, 84 So. 190, 20 A. L. R. 270; McMichael v. Grady, 34 Fla. 219, 15 So. 765, cited in Tracy v. Lucik, 138 Fla. 188, 203, 189 So. 430. See McDougall v. Brokaw, 22 Fla. 98.

And the county judge sitting as a court of probate cannot assume to adjudicate rights in homestead property. This is inferentially settled by the case of Mott v. First Nat. Bank, 98 Fla. 444, 12.4 So. 36; Spitzer v. Branning, 135 Fla. 49, 54, 184 So. 770.

Property rights are acquired from statutes regulating dower and descent.-The widow and heirs, on the death of the pater familias, acquire their proprietary rights of property in the things exempted, not from the constitutional provision exempting them from forced sale for the payment of debts, but entirely from the statutes regulating dower and the descent of property, unaffected by such consti tutional provisions, except that the latter instrument appends to the things exempted, in their transmission to the widow and heirs, the feature of immunity ·from forced sale for the debts of the ancestor. Hinson v. Booth, 39 Fla. 333, 22 So. 687. See Rawlins v. Dade Lbr. Co., 80 Fla. 398, 86 So. 334; McEwen v. Larson, 136 Fla. 1, 7, 185 So. 866; Seashole v. O'Shields, 139 Fla. 839, 842, 191 So. 74.

As to descent of homestead, see § 731.27, Fla. Stats., 1941.

As to dower rights, see § 731.34, Fla. Stats., 1941. See also, Moore v. Price, 98 Fla. 276, 123 So. 768; Spitzer v. Branning, 135 Fla. 49, 56, 184 So. 770; Mullan v. Bank of Pasco County, -101 Fla. 1097, 133 So. 323; Wald.in v. Waldin, !l8 Fla. 344, 123 So. 777; Godwin v. King, 31 Fla. 525, 13 So. 108; Wilson v. Fridenburg, 19 Fla. 461.

As to partition after assignment of dower, see Waldin v. Waldin, 98 Fla. 344, 123 So. 777; Moore v. Price, 98 Fla. 276, 123 So. 768; Spitzer v. Branning, 135 Fla. 49, 57, 184 So. 770; Donly v. Metropolitan Realty, etc., Co., 71 Fla. 644, 72 So. 17S.

The word "heirs" means those who may under the laws of the state inherit from the owner of the homestead. Shone v. Bellmore, 75 Fla. 515, 522, 78 So. 605.

And is not limited to minors or dependents, but the exempt property "inures to the * * * heirs of the" father where the mother predeceased the father. Cumberland, etc., Mills v. Keggin, 139 Fla. 133, 136, 190 So. 492. See Miller v. Finegan, 26 Fla. 29, 7 So. 140, 6 L. R. A. 813.

It includes posthumous child. Shone v. Bellmore, 75 Fla. 515, 78 So. 605.

The wife of an absconding debtor has no rights under this section. She is not a widow. In re Hallbauer, 280 F. 118.

Stated in Miller v. Mobley, 136 Fla. 351, 355, 186 So. 797 (dis. op.).

Cited in Baker v. State, 17 Fla. 406; Alexander v. Kilpatrick, 14 Fla. 450.

§ 3 HISTORY.


§ 4


II. Due Execution III. Conveyance to Wife IV. Disposition by Will.

or Children.

I. GENERALLY. Restrictions are for the protection of all the

beneficiaries of the exemption. Thomas v. Craft, 55 Fla. 842, 46 So. 594; Byrd v. Byrd, 73 Fla. 322, 74 So. 313.

All methods of alienation during the life of the owner other than those expressed are inhibited. Thomas v. Craft, 55 Fla. 842, 46 So. 594; Adams v. Malloy, 70 Fla. 491, 70 So. 463. See Gulf Refining Co. v. Ankeny, 102 Fla. 151, 153, 135 So. 521; Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A. L. R. 1409.

The constitution does not contemplate the alienation of homestead real estate or the acquisition of an interest therein even pursuant to equitable principles which do not accord with organic law. Suttle v. Wold, 117 Fla. 802, 804, 158 So. 447.

If the prescribed method for the alienation of homestead real estate is not complied with the attempt to convey as to the "heirs" is a nullity Hutchinson v. Stone, 79 Fla. 157, 84 So. 151; Norton v. Baya, 88 Fla. 1, 5, 102 So. 361.

No title is conveyed without joinder.-An attempted conveyance in which there is no joinder when relation of husband and wife exists is ineffectual to convey any title to such property. Thomas v. Craft, 55 Fla. 842, 46 So. 594; High v. Jasper Mfg. Co., 57 Fla. 437, 49 So. 156; Hill v. First Nat. Bank, 79 Fla. 391, 399, 84 So. 190, 20 A. L. R. 270.

And the homestead cannot be mortgaged without the joint consent of husband and wife. Jones v. Federal Farm Mtg. Corp.,. 138 Fla. 65, 67, 188 So. 804.

Article XI does not modify this section whether the wife or the husband is the head of the family and the owner of the homestead real estate. Bigelow v. Dunphe, 144 Fla. 330, 332, 198 So. 13.

"If a permissible conveyance of a homestead for a proper consideration is duly made, the consideration takes .the. place of the exempted property and the conshtut10n may not thereby be violated. Such conveyances of homesteads serve the public P<;>licy .of a limited exercise of the natural right of ahenahon and preserve the organic homestead exemption for the protection of the family . Hart v. Gulf Fertilizer Co., 91 Fla. 991, 108 So. 886; Byr.d v. Byrd, 73 Fla. 322, 74 So. 313; Wright v. Wnght, 7.5 Fla. 7, 77 So. 616; Shad v. Smith, 74 Fla. 324, 76 So. 897. In Daniels v. Mercer, 105 Fla. 362, 141 So. 189, a consideration was paid for the conveyance to some of the children under circumstances that did not violate the constitution or the applicable statute. In Rawlins v. Dade Lbr. Co., 80 Fla. 398, 86 So. 334, there were no children and the husband left the wife alone on the homestead and then conveyed it to her." Norman v. Kannon, 133 Fla. 710, 716; 182 So. 903.

HISTORY. Original section of Constitution 1885.

Mortgagee or grantee has the duty to ascertain the rights of those occupying real estate that is being conveyed or mortgaged. Bigelow v. Dunphe, 144 Fla. 330, 332, 198 So. 13. See also. B1gelow v. Dunphe, 143 Fla. ~03, 607, 197 So. 328.

A lien upon the homestead real estate for material used in a house erected thereon can be ob

[ 1186]

Art.X,§4 HOMESTEAD AND EXEMPTIONS Art. X, § <&

tained only by making the husband and wife parties and showing her acquiescence in the furnishing of the material for the purpose of improving the homestead, and perhaps this ean be done only in a court of equity. Haimovitz v. Hector, 79 Fla. 28, 33, 83 So. 666.

The owner may alienate the homestead a~; provided by the constitution without making it subject to his debts. Hart v. Gulf Fertilizer Co., 91 Fla. 991, 108 So. 886.

And there are no creditors within fraudulent conveyance statute as regards property exempt as homestead. Sneed v. Davis, 135 Fla. 271, 280, 184 So. 865. See Rigby v. Middlebrooks, 102 Fla. 148, 135 So. 563; Hart v. Gulf Fertilizer Co., 91 Fla. 991, 108 So. 886.

Reservation in deed conveying homestead land as to user for lifetime of grantors did not stop the passage of title to the grantees when the deed was delivered and the deed was not shown by "its terms or otherwise" to be in effect a will. Daniels v. Mercer, 105 Fla. 362, 364, 141 So. 189.

As to personal property exemption, the head of the family may dispose of it by will or alienate it absolutely during his life time. Hinson v. Booth, 39 Fla. 333, 22 So. 687.

Applied in In re Comstock's Estate, 143 Fla. 500, 505, 197 So. 121.

Quoted in Norman v. Kannon, 133 Fla. 710, 713, 182 So. 903; McEwen v. Larson, 136 Fla. 1, 185 So. 86fi; Newman v. Equitable Life Assur. Soc., 119 Fla. 641, 648, 160 So. 745; Spitzer v. Branning, 135 Fla. 49, 54, 184 So. 770.

Cited in Miller v. Mobley, 136 Fla. 351, 3.'>5, 186 So. 797 (dis. op.).

II. DUE EXECUTION.

A deed or mortgage not duly executed is ineffectual to convey or to encumber the homestead property. Thomas v. Craft, 55 Fla. 842, 46 So. 594; Shad v. Smith, 74 Fla. 324, 76 So. 897;

Fla. 851, 178 So. 570. See § 693.03, Fla. Stats., 1941. Parties making a loan upon real estate must

satisfy themselves that the requirements have been complied with in the formal execution of the mortgage. Oates v. New York Life Ins. Co., 130 Fla. 851, 868, 178 So. 570.

Waiver and estoppel.-The organic and statutory provisions do not intend or contemplate that the required regulations may be so utilized as to mislead those who in good faith acquire such conveyances or mortgages. Nor do the constitutions and statutes forbid the application of the principles of estoppel, laches, waiver, acquiescence, or other principles of law in proper cases. New York Life Ins. Co. v. Oates, 141 Fla. 164, 176, 192 So. 637. See Hart v. Sanderson, 18 Fla. 103; First Nat. Bank v. Ashmead, 33 Fla. 416, 14 So. 886.

Where it is admitted or duly proven that the wife did appear before the officer concerning the execution of the mortgage by her, she will be estopped to assert that she did not make the statutory acknowledgment of the execution of the mortgage as may be properly stated in the officer's certificate. But if it be clearly shown by convincing testimony of disinterested witnesses that there was fraud or duress in procuring the execution of the mortgage or in taking acknowledgment of the execution by the wife, in which fraud or duress the holders of the mortgage or their privies participated, or of which fraud or duress they had or could reasonably have had knowledge or notice, the mortgage holders will be es topped to enforce the mortgage. New York Life Ins. Co. v. Oates, 122 Fla. 540, 556, 166 So. 269.

None of the requirements of the constitution or the statute may be waived by the husbaDd and wife, or by either of them. Hutchinson v. Stone, 79 Fla. 157, 165, 84 So. 151.

III. CONVEYANCE TO WIFE OR CHILDREN.

Hutchinson v. Stone, 79 Fla. 157, 165, 84 So. 151. An alienation of the homestead may be to some A deed or mortgage to be "duly executed * * * of the children of the owner if duly made in good

by husband and wife," must be executed as re- faith for an appropriate consideration and for no quired by the statutes, that is, signed, sealed and illegal purpose. Daniels v. Mercer, 105 Fla. 362. delivered by each of them, attested by two wit- 141 So. 189. nesses as to each signature, and as to the wife. a Deed executed solely by the husband attemptstatutory "acknowledgment" is a part of the due ing to convey to the wife legal title to the homeexecution of a deed . or mortgage. Hutchinson v. stead real estate is void. as to heirs. Thomas v. Stone, 79 Fla. 157, 165, 84 So. 151; Shad v. Smith, Craft, 55 Fla. 842, 46 So. 594; 15 Ann. Cas. 1118; 74 Fla. 324, 76 So. 897; Oates v. New York Life High v. Jasper Mfg. Co., 57 Fla. 437, 49 So. 156; Ins. Co., 117 Fla. 892, 893, 152 So. 671; Oates v. Byrd v. Byrd, 73 Fla. 322, 74 So. 313; Jahn v. New York Life Ins. Co., 116 Fla. 253, 254, 152 Purvis, 145 Fla. 354, 199 So. 340; Rawlins v. Dade So. 671; New York Life Ins. Co. v. Oates, 122 Fla. Lbr. Co., 80 Fla. 398, 86 So. 334; Semple v. Sem-540, 551, 166 So. 269; Suttle v. Wold, 117 Fla. 802, pie, 82 Fla. 138, 89 So. 638. 804, 158 So. 447. A deed to a homestead executed jointly by the

Execution by the wife must be acknowledged owner and wife directly to the wife where there before an officer in compliance with the statute. in is a child or children surviving whether minors addition to the signing, sealing and delivery of the or adults or whether residing with the family, is instrument by both husband and wife, and its due prima facie ineffective as against the interests of attestation by two witnesses. Shad v. Smith, 74 such heirs, to convey legal title. Church v. Lee, Fla. 324, 76 So. 897; Bank of Jennings v. Jennings, 102 Fla. 478, 136 So. 242. 71 Fla. 145, 71 So. 31. An attempted "alienation" of the homestead by

I The wife must acknowledge before some officer the owner and wife directly to the wife merely authorized to take such acknowledgment, "sepa- leaves the title substantially as it was before withrately and apart from her husband, that she exe- out divesting it of its character as a homecuted the same freely and voluntarily and without stead. Id. compulsion, constraint, apprehension or fear of or And voluntary conveyance to third person for from her husband". McEwen v. Schenck, 108 Fla. reconveyance is ineffectual.-The alienation con-119, 121, 146 So. 839; Hutchinson v. Stone, 79 Fla. templated is not a conveyance without considera-157, 84 So. 151; Murphy v. Duncan, 111 Fla. 548, tion by the owner directly to his wife, or by the 149 So. 594; Oates v. New York Life Ins. Co., 130 husband and wife joining in a conveyance without

[ 1187 l

Art. X,§ 5 CONSTITUTION OF THE STATE OF FLORIDA Art. X, § 5

consideration to a third person who reconveys the same property without consideration to the wife alone or to the husband and wife · as. tenants by the entireties. Bess v. Anderson, 102 Fla. 1127, 136 So. 89-8; Norman v. Kannon, 133 Fla. 710, 182 So. 903; Church v. Lee, 102 Fla. 4 78, 136 So. 242.

Section 689.11, Fla. Stats., 1941, authorizing a husband to deed real estate directly to his wife as though they were not married, does not apply to "homestead real estate" referred to in this Article. Church v. Lee, 102 Fla. 478, 136 So. 242 .

As it would violate the organic command of § 2 of this Article that the homestead exemptions "shall inure to the widow and heirs of the party entitled to such exemption." Norton v. Baya, 88 Fla. 1, 102 So. 361; Thomas v. Craft, 55 Fla. 1!42, 46 So. 594, 15 Ann. Cas. 1118; Jackson v. Jackson. 90 Fla. 563, 107 So. 255; Hutchinson v. Stone, 79 Fla. 157, 84 So. 151; Norman v. Kannon, 133 Fla. 710, 715, 182 So. 903; Bess v. Anderson, 102 Fla. 1127, 136 So. 898; Church v. Lee, 102 Fla. 478, 136 So. 242.

Where there are no children.-Where the husband who lived on his' homest ead with his wife, they having no children, leaves his wife on the homestead and lives elsewhere in the same town, the wife remaining on the homestead, and the husband executed a deed of conveyance of the homestead to the wife, such conveyance may be a relinquishment to the wife of the hu sband's rights in the homestead, there being no children to whom the homestead could "inure" as heirs of the husband. Rawlins v. Dade Lbr. Co., 80 Fla . 398, 86 So. 334.

Consideration.-lf the payment of a valuable consideration for the conveyance of a hom estead to the w ife becomes a material question •t must be affirmatively proven by the party relying upon its validity. Church v. Lee, 102 Fla. 478, 136 So. 242.

Due execution.-Even though the wife of "the holder of a homestead" is the grantee in and accepts a deed of conveyance of a homestead, executed by the husband alone, this does not dispense with the organic provision requiring such deed to be "duly executed by * * * hu sband and wife if such relation exists." Byrd v. Byrd, 73 Fla. 322, 324, 74 So. 313.

Evidence held to support finding that property conveyed by husband to wife was not hom estead. Gilmore v. Gilmore, 123 Fla. 28, 166 So. 214.

Mortgage by wife after death of owner.Thoug h a deed made by a homestead owner and his wife to the wife be invalid, a mortgage covering the homestead execut ed by the wife. afrer the death of the owner, may be an enforceable lien to the extent of her unassigned one-third dower rights or interest in the homestead. Church v. Lee, 102 Fla. 478, 136 So. 242.

IV. DISPOSITION BY WILL.

Editor's note.-As to statutes providing that homestead is not included in property subject to dower and providing for descent of homesteads, see Fla. Stats. 1941, §§ 731.27 and 731.34 For statute providing that the homestead shall not be subject to devise if the owner shall die and leave either a widow or lineal descendants or both surviving him, see Fla. Stats. 1941, § 731.05. The annotations under this analysis line should be con-

sidered with these presently effective statutes in mind.

Intestacy was compelled where there is a child. -The effect of this Article where the rela~ion of husband and wife exists, and where there is a child or children, is to compel such homestead to inure to the widow as widow, and to the heirs, unless the consent of the wife can be obtained to its alienation in the life time of the husband, and where such alienation does not take place, compels intestacy so far as such homestead is concerned by prohibiting its alienation by will. Palmer v. Palmer, 47 Fla. 200, 35 So. 983; Norton v. Baya, 88 Fla. 1, 102 So. 361; Johns v. Bowden, 68 Fla. 32, 66 So. 155; Morgan v. Bailey, 90 Fla. 47, 50, 105 So. 143; Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323; Griffith v. Griffith, 59 Fla. 512, 52 So. 609, 138 Am. St. R ep. 138. See Wilson v. Fridenberg, 21 Fla. 386; Brokaw v. McDougall, 20 Fla. 212; Scull v. Beatty, 27 Fla. 426, 9 So. 4; Shone v. Bellmore, 75 Fla. 515, 521, 78 So. 605.

Paragraph of will seeking to have homestead real estate set apart as part 'of the widow's dower, in the event she did not approve the provisions of the will and claimed dower, was inconsistent with the constitution and statutes and against the doctrine announced in Palmer v. Palmer, 47 Fla. 200, 35 So. 983. Story v. First Nat. Bank. etc .. Co., 103 Fla. 399, 404, 139 So. 179.

And widow was not deprived of dower right by failure to dissent from will. Moore v. Price, 98 Fla. 276, 123 So. 768.

Fact that children accepted certain legacies did not give validity to will in so far as it attempted to dispose of homestead property nor estop heirs from claiming their rights in such homestead property as against widow. Waldin v. Waldin. 98 F la. 344, 123 So. 777.

Only those who were without children could dispose of their homesteads by will. Walker v. Redding, 40 Fla. 124, 23 So. 565; Gulf R efining Co. v. Ankeny, 102 Fla. 151, 153, 135 So. 521.

Such disposition was subject to wife's dower rights.-Where the holder of the homestead was without children he or she could legally dispose of the homestead by last will and tes tament, subject, howevP.r, where such disposition was made by the husband, to the widow's right to dower therein as provided for by statute. Purnell v. Reed, 32 Fla. 329, 13 So. 874, 21 L. R. A. 839.

"Children" was not restricted to minors.· DeCottes v. Clarkson, 43 Fla. 1, 29 So. 442.

Devise to two of the surviving children, to the exclusion of the others, by a widow residing on her homestead, is void. Caro v. Caro, 45 Fla. 20~, 34 So. 309.

Acts 1899, c. 4730 was not in conflict with this section. Saxon v. Rawls, 51 Fla. 555, 41 So. 594; Thomas v. Williamson; 51 Fla. 332, 40 So. 831.

§ 5 HISTORY.


ANNOTATION. The' taking in of the homestead or a portion

thereof into the corporate limits of a municipality in no way affects the homesteader's rights as defined in the constitution. Croker v. Croker, 7 F. (2d) 218, 220.

[ 1188]

Art. · X,§ 8 HOMESTEAD AND EXEMPTIONS Art. X, § 7

Stated in Morgan v. Bailey, 90 Fla. 47, 105 So. ing v. Turner, 122 Fla. 200, 165 So. 353; Gray .v. 143. 'Moss, 115 Fla. 701, 156 So. 262; Gray v. VVin

§ 6 HISTORY.


ANNOTATION.

throp, 115 Fla. 721, 156 So. 270, 94 A. L. R. 804; State v. La'tham, 121 Fla: 486, 163 So. 890; Long v. St. John, 126 Fla. 1, 170 So. 317, 109 A. L. R. 809; Yowell v. Rogers, 128 Fla. 881, 88~, 175 So.

'772; Board of Public Instruction v. State, 145 Quoted in Hutchinson Shoe Co. v. Turner, 100 Fla. 482, 485, 199 So. 76.0; State v. Carey, 121

Fla. 1120, 130 So. 623. Fla. 515, 164 So. 199; Boatright v. Jacksonville, 'Cited in . In re Hallbauer, 280 F. 118. 117 Fla. 477, 158 So. 42; State v. Boring, 121 Fla.

§ 7 HISTORY.

781, 164 So. 859; State v. Daytona Beach, 118 ·Fla. 773, 160 So. 501; State v. Delray Beach, 140 ·Fla. 132, 134, 191 So. 188; State v. South Lake

Section added by amendment, House Joint Resolution 20, Acts of 1933, adopted at general County Special Road, etc., Dist., 145 Fla. 210, election 1934.; amended by Senate Joint Resolu- 198 So. 832; Richard v. Ft. Lauderdale, 146 Fla.

' tion 21, Acts of 1937, adopted at general el~cti~n '349, 351, ·1 So. (2d) 202; Groves v. Board of Pub-1938. lie Instruction, 109 F . (2d) 522, 524; citing , ' County Com'rs v. King, 13 Flit. 451; State v. ANNOTATION. Lehman, 100 · Fla. 1313, 131 So. 533; Rorick v.

Cross referepce.-As to statutory proviSions Board of Com'rs, 57 F. (2d) 1048; State v. Milexempting homesteads from taxation, see §§ am, 113 Fla. 491, 153 So. 100, 125, 136. 192.12"192.20, Fla. Stats., 1941. : But the section controls as to taxes for other

This section impliedly amends the provision -purposes such as the operation of governmental .forbidding exemption from taxation contained in functions, future bond issues and purposes not § 1 o:£ this Article. Fleischer Studios v. Paxson, ·controlled by dominant law. Long v. St. John, 126 147 Fla. 100, 104, 2 So. (2d) 293. Fla. 1, 8, ·170 So. 317, 109 A. L. R. 809.

And it is to be construed against the claimant .: The constitutionally designated classes of homeof ·exemption -and in favor of the taxing power in stead~ .. are exempt from school district taxes. cases of doubt. Rast v. Hulvey, 77 Fla. 74, 80 State v. Henderson, 137 Fla. 666, 672, 188 So. 351. So. 750. Therefore ·a claim for exemption under And it is fully effective as against new conthis section is not allowable unless it is sustain- tracts, evidencing new obligations, made and enable under the precise language of the section. tered into after its adoption. Folks v . . Marion Steuart v. State, 119 Fla. 117, 119, 161 So. 378. County, 121 Fla. 17, 31, 163 So. 298, 102 A. L. R.

The section provides for exemption from taxa- 659. See Long v. St. John, 126 Fla. 1, 170 So. tion only as may legally be done under the domi- 317, 109 A. L. R. 809. nant organic law. · Long v. St. John, 126 Fla. 1, In Coral Gables v. State; 128 Fla. 874, 875, 176 13, 170 So. 317, 109 A. L. R. 809; Gray v. Win- So. 40, it was held that homesteads, exempt unthrop, 115 Fla. 721, 726, 156 So. 270, 94 A. L. R. der the provisions of this section, were not liable 804; Boatright v. Jacksonville, .117 Fla. 477, 500, for the payment of refunding bonds issued to re-158 So. 42. fund a stated account and three judgments pro-

And does not apply to prior obligations.-Levy cured against the municipality in tort actions. can be made against homesteads for the purpose Tax participation certificates.-A municipality of paying a judgment against a county regardless may issue tax participation certi fica tes in comof the provisions of this section where the judg- ·promise of outstanding indebtedness and obligate ment was rendered prior to the adoption of this itself to levy taxes for their payment, even as · section. Harrell v. State, 146 Fla. 143, 200 So. against homestead's exempted under the provi-354. sions of this section. Coral Gables v. State, 128

Where judgments were recovered against a Fla. 874, 880, 176 So. 40, citing State v. Coral county board of public instructions after the Gables, 114 Fla. 326, 154 So. 234; State v. St. adoption of this section on indebtedness incurred Petersburg, 117 Fla. 300, 157 So. 641; State v. prior to the adoption, a levy can be made against Clearwater, 125 Fla. 73, 169 So. 602; Leon County homesteads for the purpose of paying the judg- v. State, 122 Fla. 505, 165 So. 666. ments, regardless of the provisions of this sec- "Assessments for special benefits" are excepted tion. Board of Public Instruction v. State, 146 from the tax exemption under this section as Fla. 93, 94, 200 So. 924; Board of Public lnstruc- amended, while the original section excepted tion v. State, 145 Fla. 482, 199 So. 760; Harrell "special assessments for benefits." Crowder v. v. State, 146 Fla. 144, 200 So. 390. Philips, 146 Fla. 428, 430, 1 So. (2d) 629; State

Which are refunded.-This section has no ap- v. Henderson, 137 Fla. 666, 670, 188 So. 351. plication to refunding bonds issued for the pur- Tax imposed by statute creating special taxing pose of funding original bonds which were issued di st~ict and providing for inland waterways was before its adoption. And homesteads are subject held a special assessment for benefits so that to a tax for the support of such refunding bonds. homestead property was not exempt therefrom. Ft. Myers v. State, 129 Fla. 166, 170, 176 So. 483; State v. Latham, 121 Fla. 486, ·494, 163 So. 890. Board of Public Instruction v. Kennedy, 109 -Fla. And homesteads share ' in legitimate expense 153, 147 So. 250; ·state v. Pensacola, 123 Fla. 331, of administration of special assessment districts, 166 So. 851; Steuart v. State, 119 Fla. 117, 161 They are not exempt from taxation for the paySo. 378; State v. Port of Palm Beach Dist., 121 ment of salaries, maintenance and upkeep of said Fla. ·746, 164 So. 851; Folks v. Marion County, districts. State v. Dreka, 135 Fla. 463, 464, 1811 121 Fla. 17, 163 So. 298, 102 A. L. R. 659; Flem- So. 616.

[ 1189 ]

Art . . xr. § t CO NSTITUTION OF THE STATE OF FLORIDA Art. XI,§ 1

Where exemption under this section is claimed on two different lots allegations of application which do not show that the lots constitute contiguous real property are insufficient to show that applicant is entitled to the exemption. State v. Courson, 144 Fla. 439, 441, 198 So. 108.

Formerly only citizens were entitled to exemption.-Prior to the 1938 amendment of this section the tax exemption was conferred only upon the "head of a family who is a citizen of and resides in the state of Florida," and alien residents of the state were not included within the terms of the section. Steuart v. State, 119 Fla. 117, 120, 161 So. 378.

Applied in State v. Auburndale, 144 Fla. 210, 213. 197 So. 739 ; as to refunding bonds, in State v. St. Lucie County, 134 Fla. 364, 367, 183 So. 846.

Cited in State v. Special Tax School Dist., 119 Fla. 352, 354, 161 So. 410; Lersch v. Board of Public Instruction, 121 F.la. 621, 164 So. 281; State v. Barker, 124 Fla. 358, 168 So. 534; Atlantic Coast Line R. Co. v. Lakeland, 130 Fla. 7~ 177 So. 206; Dayt@na Beach v. King, 132 Fla. 273, 279, 181 So. 1, 116 A. L. R. 880; State v. Special Road, etc. , Dist. , 133 Fla. 119, 133, 182 So. 583; State. v. Melbourrre, 135 Fla. 870, 879, 185 So. 850; DeSoto County v. State, 136 Fla. 362, 186 So. 804; State v. Inverness, 137 Fla. 629, 639, 188 So. 767; Lee v. Atlantic Coast Line R. Co., 141 Fla. 545, 573, 194 So. 252; State v. West Palm Beach, 141 Fla. 775, 781, 193 So. 839 ; State v. Hillsborough County, 148 Fla. 163, 168, 3 So. (2d) 882.

ARTICLE XI. MARRIED wOMEN'S PROPERTY.

cept that it is exempt from liability for the debts of her husband, without her consent given in some instrument in writing, executed according to the respective conveyances by married women. Keyser v. Milton, 228 F . 594, 599, citing Lerch v. Barnes, 61 Fla. 672, 54 So. 763.

The consent of a married woman to be effective to render her separate statutory property liable for her husband's debts must be in writing. and must be executed according to the law respecting conveyances by married women appropriate for the conveyance of the class of property to which the consent relates. Springfield Go. v. Ely, 44 Fla. 319, 32 So. 892.

The consent may be in the form of a deed absolute to her separate property which by evidence aliunde may be shown to be a mortgage, and need not expressly recite her consent to the subjection of her property to such purpose, nor need such consent be supported by any other consideration than the debt of her husband. Ocklawaha River .Farms Co. v. Young, 73 Fla. · 159, 74 So. 644, L . R. A. 1917F, 337.

A personal decree or judgment against a married woman for her husband's debts can not lawfully be enforced as against her separate property without her consent fully given as the constitution requires. Drake v. March, 66 Fla. 598, 64 So. 268.

The mortgage upon "the separate property" of the married woman being duly "executed according to the law respecting conveyances by married women," was in effect a giving of "her consent" to making "her separate property" "liable for the debts of her husband," as required by the constituti~n. Gaulden v. Warnock, 79 Fla. 669, 672, 84 So. 603 .

§ 1 An instrument in writing duly executed, giving HISTORY. the married woman's "consent" to a lien upon

Original section Glf Constitution 18tt5. her separate property for her husband's debt, is ANNOTATION. ineffectual as a lien after suit to enforce it is

Cross reference.-As to married women's pmp- baorred by statute. Id. erty, see annotations to ch. 708. Mortgage executed by a married woman upon

The purpose of this section was to make of the her separate statutory property for the purpose property of a wife her separate prqperty, and to of securing a debt of her husband, must be ·atprevent it being subject to the debts of the hus- tested by two witnesses, and otherwise executed band, or used by him except with her consent in according to the law respecting conve~ances by writing, as therein provided. Keyser v. Milton., a married woman. Walker v. Heege, 78 Fla. 228 F. 5G4, 597. See Blood v. Hunt, 97 Fla. 551, 6tl7, 83 So. 605. See Cobb v. Bear, 57 Fla. 370, 121 So. 886. 49 So. ·29; Ocklawaha River Farms Co. v. Young,

It was not the purpo~e @f this Article to pre- 73 Fla. 159, 74 So. 644, L. R. A. 1917F, 337. vent the legislature fmm making laws dealing A mortgage, properly executed by husband with the contractua~ rights and po wers of mar- and wif.e, conveying the wife's separate statutorv ried women so long as there were no conflicts real estate as security for the husband's debt, i-s with the provisions of this Article. Cracker Jack valid. Thompson v. Kyle, 39 Fla. 58!, 23 So. 12, Co. v. Stomaken, 119 Fla. 6&7, 674, 160 So. 755; 63 Am. St. Rep. 193; Dzialynski v. Bank of JackPier~on v. Reinhardt, 101 Fla. 1392, 133 So. 553, sonville, 23 Fla. 346, 2 So. 696; Mattair v. Card, 136 So. 250. 18 Fla. 'i'61.

Common-law rule modified.-See Tresher v. As to reformation of mortgage, see Bexley v. McElroy, 90 Fla. 372, 374, 106 So. 79; L erch v. High Springs Bank, 73 Fla. 422, 74 So. 494. Barnes, 6.1 Fla. 672, 54 So. 763; Ke~ser v. MiltGn, Use of funds obtt..med by pledge af separate 228 F. 594. property.-Thi s; section does not apply, where a

Section does not change nature of estate a mar- woman, who is a free dealer, pledged her separate ried woman may take or hold in proper ty real or property for money to pay husband's obligations, personal. Bailey v. Smith, 8!! Fla. 303, 103 So. the loan beir>g made to her. Cracker Jack Co. v. 833. Stomaken, 119 Fla. 667, 668, 160 So. 75 5.

It contai-ns no limitations upon the p·ower Husband cannot mortgage crops grown on which might be conferreq 011 the wife by the legis- separate estate.-A husband has no powe r to Jature of disposing of her separate property, ex- mortgage the crops grown on the separate stat

[ 1190 l

Art. XI,§ 2 MARRIED WOMEN'S PROPERTY Art. XI, § 2

utory real estate of his wife, without her written consent as required by the constitution. Shoemaker v. Waters, 59 Fla. 414, 52 So. 586; Haines City Citrus Growers Ass'n v. Petteway, 107 Fla. 344, 347, 145 So. 183.

Blank form of mortgage signed by wife invalid. -Under this section blank form of mortgage signed by wife and delivered to husband without names of mortgagor, mortgagee, or description of property was invalid after it was filled in by husband so as to incumber wife's separate statutory property, even if acknowledged, and notwithstanding wife had status tlf free dealer, in absence of evidence that she authorized names of parties or description to be written in. Hart v. Myers, 97 Fla. 41, 119 So. 520.

Personal property may be pledged to secure debt of third person.-A married woman may validly pledge or mortgage her personal property to secure a debt of a third person other than her husband, from which transaction neither she nor her estate derived any benefit. Wisdom v. Smith, 124 Fla. 371, 373, 168 So. 814.

Right to acquire property complete as that of husband.-Geitgey v. Traweek, 97 Fla. 904, 122 So. 512.

An estate by the entireties is not a part of the separate property of a married woman. Stanley v. Powers, 123 Fla. 359, 364, 166 So. 843; Anderson v. Trueman, 100 Fkl. 727, 130 So. 12. But see Lindsley v. Phare, 115 Fla. 454, 155 So. 812 (con. op.).

In view of this section specific performance in a suit by a married woman to enforce a contract for the aale of land is not to be refused for want of mutuality: Glark v. Andrew, 11 F. (2d) 958.

This Article does not modify Art. X regulating the execution of conveyances and mortgages of homestead real estate. Bigelow v. Dunphe, 144 Fla. 330, 332, 198 So. 13.

Quoted in Phillips v. Lowenstein, 91 Fla. 89, 107 So. 350; Newman v. Equital9le Life Assur. Soc., 119 Fla. 641, 160 So. 745; New York Life Ins. Co. T . Oates, 122 · Fla. 540, 166 So. 269; Pritchett v. New York Life Ins. Co., 125 F.la. 653, 170 So. 700; Pritchett v. Brevard Naval StO£es Co., 1!~ Fla. 11>6, 1'?0 So. 610; Hawkins v. Hawkins, 130 Fla. 130, 177 Sfl. 274; Oates v. New .York Life Ins. Co., 130 Fla. 851, ITS So. 570.

Applied in McDonald v. McDonald Holding Corp., 122 Fla. 115, 165 So. 363.

Cited in Wilkins v. Lewis, 78 Fla. 78, 84, 82 So. 762; l"lutchinson v. Stone, 79 Fla. 157, 170, 84 So. 151; Hart v. Gulf Fertilizer Co., 91 Fla. 991, 108 So. 886; Easterly v. Wildman, 87 Fla. 73, 78, gg S'o. 359; Gibson v. lngals, 119 Fla. 214, 161 So'. 395; Miller v. Ellenwood, 121 Fla. 551, 164 So. 140; Baker v. Vero Indian River Producers A!s'n, 124 Fla. 323, 324, 168 So. 536; Clirk v. A.nclrew, 11 F. (2d) 958.

§ 2

of married women enforceable against their separate statutory property. Ke:vser v. Milton, 228 F. 594, 600.

And outside of its provision there is nothing to prevent legislative action. Keyser v. Milton, 22& F. 594, '600.

This section does not limit the power of the legislature to enlarge the contractual rights of married women when contro:!ing provisions of the constitution are not thereby violated. Humphreys v. Smith, 117 Fla. 239, 242, 157 So. t!i7; Blood v. Hunt, 97 Fla. 551, 121 So. 886; Micou v. McDonald, 55 Fla. 776, 46 So. 291. £ee also, Vliet v. Anthony, 121 Fla. 439, 441, 164 So. 138; Lerch v. Varns, 61 Fla. 672, 54 So. 763: Pierson v. Reinhardt, 101 Fla. 1392, 1396, 133 So. 553, 136 So. 250.

It does n~t . operate to supersede or to supplement the right to foreclose mortgage liens given by married women upon their separate property as authorized by statute; nor does it operate to enforce the payment of promissory notes of married women that are secured by mortgage, or to secure the payment notes as such. Bloo<i v. Hunt, 97 Fla. 551, 121 So. 886.

And was designed for the protection of persons dealing with a married woman with reference to her separate property and createti rights against a married woman which did aot exi.st there1fJfore. Pierson v. Reinhardt, 101 Fla. 1392, 1395, 133 So. 553, 136 So. 250.

The intent of the section is to define a remedy in equity against the sej'arate real and personal property of a married wo~an for stated debts or obligations incurred by her or for the benefit of her separate property in the manner designated in the specifisally stated five classes of cases where the organic or sbatute law of the state had not afforded such remedy (though equity had given similar remedies), and where mortgage liens to secure such debts or obligations are not given as authorized by organic or statutory proVISions. Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 So. 900; Durrance v. Mallett-Brown ,Co., 124 Fla. 468, 479, 168 So. 829; Davis v. Battle, 132 Fla. 240, 182 So. 243, 117 A. L. R. 742.

It provides two remedies. One is that the separate property may be charged in equity and sold. The other is that the uses, rents and profits thereof may be sequestrated. Durrance v. Mallett-Brown Co., 124 Fla. 468, 481, 168 So. 829.

Five cases in which property may be charged. -This section provides for five distinct classes of cases in which a married woman's separate property may be charged for debts incurred by her. Blqod· v. Hunt, 97 Fla. 551, 121 So. 886; Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 So. 900; Morgan v. Simpson, 98 Fla. 1155, 125 So. 350; C4ravasios v. Vanderpool & Co., 133 · Fla. 112, 182 So. 603; Taonner v. Overstr-eet Inv. Co., 114 Fla. 474, 476, 1S4 So. 204.

Tort judgments and antenuptial debts.-This seation does not apply to judgments against a

HISTORY. married wom~m recovered for antenuptial debt s Original section of Constitution 1885. as in McGill v. Co&rell, 81 Fla. 463, 88 So. 268,

ANNOTATION. or judgments recovered against a married woman This sectio-n dces not have the brt!lad effect te in tort actions. Stanley v. Powers, 123 Fla. 359,

c0ntl'ol absolutely an'd entirely as te the lia'bility 364, 166 So. 843. See Graham v. Tucker, 56 Fla. [ 1191 ]

Art . .XI, § I CONSTITUTION OF THE STATE OF FLORIDA Art. XI,§ 2

807, 47 So. 563, 131 Am. St. Rep. 124, 19 L. R. A. (N. S.) 531.

Section has the effect of removing the common-law disability of coverture in the cases enumerated, and enables her in such cases to assume obligations that can be enforced out of her separate property. Craven v. Hartle'y, l 02 Fla. 282, 135 So. 899. See also, Kerman's v. Strobhar, 106 Fla. 148, 153, 143 So. 138; Nadel v. Weber Bros. Shoe Co., 70 Fla. 218, 70 So. 20, L. R. A. 1916D, 1230; A gin v. Gainesville Planing, etc., Co., 80 Fla. 679, 682, 87 So. 63: Micou v. McDonald, 55 Fla. 776, 46 So. 291; McGill v. Art Stone Const. Co., 57 Fla. 498, 49 So. 539, 131 Am. St. Rep. 1106; McMillan v. Warren, 59 Fla. 578, 52 So. 825; Matthews v. McCain, 125 Fla. 840, 847, 170 So. 323.

It does not provide for accelerating the maturity of the debts or for attorney fees in such suits. Blood v. Hunt, 97 Fla. 551, 121 So. 886; Barrett v. Howard, 97 Fla. 582, 121 So. 898; Blood v. Huey, 97 Fla. 577, 121 So. 896. See also, Brite v. Orange Belt Securities Co., 133 Fla.· 266, 273, 182 So. 892.

The constitution does not fix the terms of obligations as . to the property. Oates v. Prudential Ins. Co., 107 Fla. 224, 234, 144 So. 418.

As to purchase money it does not contemplate the use_ of the remedy provided when a purchase money mortgage is given. Barrett v. Howard, 97 Fla. 582, 121 So. 898; Blood v. Huey, 97 Fla. 577, 121 So. 896.

Or where personalty is retained as security. Persons v. Tyree, 119 Fla. 288, 292, ·161 So. 408.

But is intended to apply where property purchased remains the woman's in kind, and is not commingled with her other separate property, as lands and interests therein, or personal property retaining its identity. Sumner v. Osborne, 101 Fla. 742, 135 So. 513; Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 So. 900.

And the authority to charge any of the separate property is not available where the property purchased . can be charged for the purchase price thereof. Sumner v. Osborne, 101 Fla. 742, 135 So. 513. See Barritt v. Swan, 104 Fla. 324, 141 So. 747; Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 So. 900. See Low v. Lord, 101 Fla. 1075, 132 So. 831. .

This section does not require that such sales be predicated on written contracts. Craven v. Hartley, 102 Fla. 282, 286, 135 So. 899.

Contracts for service.-The purpose of this section was not to subject a married woman's property to the payment of debts due upon her contracts for services, unless the same were made by her in writing for the benefit of her separate property. Kelliher v. Kennard, 75 Fla. 665; 667, 79 So. 28; Nadel v. Weber Bros. Shoe Co .. 70 Fla. 218, 70 So. 20, L. l<. . A. 1916D, 1230. See Nutt v. Codington, 34 Fla. 77, 15 So. 667; Micou v. McDonald. 55 Fla. 776, 46 So. 291; O'Neil v. Percival, 20 Fla. 937, 51 Am. Rep. 634; Smith v. Gaubv, 43 Fla. 142, 30 So. 683; Macfarlane v. Southern Lbr., etc., Co., 47 Fla. 271. 36 So. 1029; Hoffman Const. Co. v. Ward, 97 Fla. 530, 531, 121 So. BOO; Equitable Building, etc., Ass'n v.

in equity with a demand for work done and material furnished on said property, whether in pursuance of her personal engagement, or on the contract of her husband who acts as her agent, with her knowledge or approval. Garvin v. Watkins, 29 Fla. 151, 10 So. 818. See · Schnabel v . Betts, 23 Fla. 178, 1 So. 692.

This section does' not give a married woman capacity to make a contract for labor performed or material furnished upon her separate property that will bind her in a personal judgment. Smith v. Chapman, 116 Fla. 576, 579, 156 So. 544: N utt v. Codington, 34 f'la. 77, 15 So. 667; Thrasher v. Doig, 18 Fla. 809; Agin v. Gainesville Planing, etc., Co., 80 Fla. 679, 87 So. 63; St. Petersburg Lbr. Co. v. Risley, 127 Fla. 658, 663, 173 So. 832.

"For the benefit of her separate property" should not be held to mean that the contract or agreement must merely contemplate a ''benefit of her separate property" but must be held · to mean th·e contract or agreement must inure to the enhancement, increase or benefit of the separate property. Patterson v. Toachton, 105 Fla. 275, 277, 141 So. 118.

The written agreements do not depend upon any formalities for their validity. The lien obtained in equity is not restricted to the particular property benefited but may be imposed upon all her separate property. Stengel v. United States Fidelity, etc ., Co., 96 F. (2d) 770.

Bill must allege that agreement was made for th e benefit of the separate property. King v. Hooton, 56 Fla. 805, 47 So. 394.

In Oates v. Prudential Ins. Co., 1.07 Fla. 224, 232, 144 So. 418, quoting from Deno v. Smith, 103 Fla. 282, 137 So. 248, 140 So. 335, the court said: "While a promissory note of a married woman, not a free dealer, is not a legal predicate for a personal judgment or decree against her, such a note with competent evidence as to the circumstances under which the note was executed and a due consideration received by her may constitute an agreement in writing for the benefit of her separate prqperty, for which the married wdman's separate property may be charged in equity and sold, under § 2, Art. XI , cf the Constitution." See Thaden v. Swartz, !J9 Fla. 1082, 128 So. 425; Shields v. Ensign, 68 Fla. 522, 67 So. 140; Vance v. ] acksonville Realty, etc., Co., 69 Fla. 33, 67 So. 636; Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 So. 900; Ziegler v. Ft. Lauderdale Securities Co., 102 Fla. 346, 135· So. 838.

As to benefits to property, see Ziegler v. Ft. Lauderdale Securities Co., 102 Fla. 346, 135 So. 838; Blodgett v. Steinmetz, 98 Fla. 238, 123 So. 761; Davis v. Battle, 132 Fla. 240, 182 So. 243, 117 A. L. R. 742.

Attorney's services not "labor bestowed."-The service rendered by attorneys in defending the right of a married woman to real estate as her separate property is not "labor bestowed" on the land under this section. Timberlake v. Semple, 86 Fla. 314, 97 So. 718.

lnterest.-See Brite v. Orange Belt Securities Co., 133 Fla. 266, 277. 182 So. 892.

King, 48 Fla. 252, 37 So. 181. '!'he separate statutory property can ' be

Statutory or mechanic's and materialman's liens charged as provided by Fla. Stats., 1941, §§ 85.03, 85.04,

[ 11112]

Art. XI,§ 2. MARRIED WOMEN'S PROPERTY Art. XI, § 2

have no application to the liability of the separate :ns, 70 So. 20, L. R. A . 1916D, 1230; Frosen v. property under this section, both being distinct Capo, 88 Fla. 236, 102 So. 158; Equitable Bldg., and independent remedies. Tallahassee Variety etc., Ass'n v. King, 48 Fla. 252, 37 So. lSi; Sum.Works v. Brown, 106 Fla. 599, 601, 138 So. 7159, ner v. Osborne, 101 Fla. 742, 135 So. 513. 144 So. 848. See -Cox v. Rieck & Fleece, 129 Fla. And a deficiency decree amounts to a personal 872, 879, 177 So. 301; Agin v. Gainesville Plan- judgment against a married . woman which can ing, etc., Co., 80 Fla. 679, 87 So. 63. not be enforced. Cornell v. Ruff, 105 Fla. 504,

FMrida Stats., 1941, section 85.06.-If a mate- 506, 141 So. 535; Randall v. Bourguardez, 23 Fla. rialman elects not to rely upon a lien but to avail 264, 2 So. 310, 11 Am. St. Rep. 379; Morgan v. himself of the benefits of this section, he must Simpson, 98 Fla. 1155, 125 So. 350. See Rice v. pursue the requirements of § 85.06. Dalton v. Cummings, 51 Fla. 535, 40 So. 889. Camp, 141 Fla. 892, 896, 194 So. 219. ·. Death of married woman.-Separate property

The effect of .§ 85.06 was not to create a lien of a married woman after her death cannot be in derrogation of this section. · Insofar as .the reached by creditors, except by that course of statutory proviSIOn is in harmony with this pro- procedure which is authorized by statute to carry vision it is' effective. Atkins v. Kendrick, 138 this section into effect. Fletcher v. Rickey, 114 Fla. 776, 781, 190 So. 248. Fla. 563, 565, 154 So. 147.

For th e purpose of making this section effec- This section does . not co:-J.template a suit in the tive and fixing a period of limitation within which nature of specific performance against the execusuits may be instituted, Fla. Stats.-, 1941, § 85.06 tor of a deceased married woman upon a cor,tract may be applied. Atkins v. Kendrick, 138 Fla. in writing signed by her for the purchase of real 776, 781, 190 So. 248. See Pierson v. Reinhardt, estate, she not being a · free dealer under the stat-101 Fla. 1392, 133 So. 553, 136 So. 250. ute. Fisher v. Parker, 93 Fla. 258, 112 So. 62.

Burden of proof.-As to burden to show As to written agreement not to claim a lien, see knowledge, see ·Agin v : Gainesville Planing, etc., Durrance v. Mallett-Brown Co., 124 Fla. 468, 484, Co., 80 Fla. 679, 87 So. 63; as to burden to show 168 So. 829.

' separate property received · the benefits, see Davis Interest in mercantile business.-Although a v. Battle, 132 Fla. 240, 251, 182 So. 243, 117 A. married woman by reason of her disability of L. R. 742. · ' · ' coverture cannot make a valid contract of co-

This provision does not create a lien. Sheridan partnership, she may acquire an interest in a v. Respess, 147 Fla. 626, 628, 3 So. (2d) 704. mercantile business, she may invest money or See Tallahassee Variety • Works v . Brown, 106 other property in such business, and such interFla. 599, 138 So. 759, 144 So. 848; Stokes v. Home est will be her separate property and subject to Owners Loan Corp., 138 Fla. 209, 189 So. 657; be charged in equity and sold under this section. Sumner v. Osborne, 101 Fla. 742, 135 So. 513; ·Friddle v. Stewart, 129 Fla. 821, 827, 176 So. 750; Citizens Bank, etc., Co. v. Smith, 97 Fla. 601, 121 Nadel v. Weber Bros. Shoe Co., 70 Fla. 218, 223, So. 900. . 70 So. 20, L. R. A. 1916D, 1230; LeNoir v. Me-

Hence, until equity proceedings are brought, Daniel, 80 Fla. 500, 507, 86 · So. 435 , the owner may sell and dispose of her property Where a married woman carries on business in as the law provides. Tallahassee Variety Works her own name, having property employed in such v. Brown, 106 Fla. 599, 601; 138 So. 759; 144 So. business, and purchases goods upon her sole 848; Smith v. Gauby, 43 Fla. 142, 30 So. 683; Agin credit for the purposes of such business, her sepv. Gainesville Planing, etc., Co., 80 Fla, 679, 87 arate property may be subjected in equity to the So. 63. payment of claims for money due for such pur-

Until a decree is obtained charging the prop- chases. Blumer v. Pollak & Co., 18 Fla. 707; erty, there is no organic or judicial lien on the First Nat. Bank v. Hirschkowitz, 46 Fla. 588, property for the demands against it under this 35 So. 22. See Mercantile Exch. Bank v. Taylor, section. Fulghum v. Deno, 108 Fla. 594, 597, 51 Fla. 473, 41 So. 22; Walling v. Christian, etc., 146 So. 672 (con. op.). Groc. Co., 41 Fla. 479, 27 So. 46, 47 L. R. A. 608.

But is a right which may be enforced against Quoted in Livingston v. Powers, 85 Fla. 254, the property by a bill in equity. Pierson v. Rein- 95 So. 622; Henley -v. Guthrie, 114 Fla. 541, 543, hardt, · 101 Fla. 1392, 1396, 133 So. 553, 136 So, 154 So. 243; Russell v. Henslee, 101 Fla. 1318, 250. 1320, 132 So. 489; Pritchett v. New York Life

It does not preclude the creation of a statutory Ins. Co., 125 Fla. 653, 170 So. 700. lien. Dalton v. Camp, 141 Fla. 892, 895, 194 So. Cited in New York Life Ins. Co. v. Oates, .141 219. Fla. 164, 176, 192 So. 637; Chisholm v. Coconut

A married woman is not bound in personam by Grove E~ch. Bank, 144 Fla. 770, 772, 198 So. 703; her contract, but her property may be charged Payne v. Stump, 104 Fla. 70, 139 So. 191; Phare in equity and sold for its purchase money or for v. Randall, 97 Fla. 858, 122 So. 217; Frosen v. money .or labor expended in improvi·ng it or up- Capo, 88 Fla. 236, 102 So. 158; Salomon v. Gaon agreements in writing made by her for its Iinsky, 103 Fla. 417, 420, 137 So. 386; Wettstein benefit. Kelliher v. Kennard, 75 Fla. 665, 667, v. Gilbert, 105 Fla. 427, 141 So. 297; Morrow v. 79 So. 28. Jefferson Standard Life Ins. Co., 1-10 Fla. 331,

One effect of this Article and statutory enact- 150 So. 229; Easterly v. Wildman, 87 Fla. 73, 78, .ments is that the contracts of married women, 99 So. 359; London Operating Co. v. Continental even when not enforceable against them person- Const. Co., 118 Fla. 15, 159 So. 33; McKee v. ally, are not always wholly null and void. First Nat. Bank, etc., Co., 118 Fla. 505, 159 So. Kerman'~ v. Strobhar, 1.06 Fla. 148. 152, 143 669; Gibson v. lngals, 119 Fla. 214, 161 So. 395; So. 138; Nadel v. Weber Bros. Sho'e Co., 70 Fla. McGill v. Cockrell, 81 Fla. 463, 88 So. 268; Halle

[ 1193]

Art. XI,§ 3 CONSTITUTION OF THE STATE OF FLORIDA Art. XII,§ 3

v. Einstein, 34 Fla. 589, 16 So. 554; Halle v. Meinhard, 34 Fla. 607, 16 So. 559; Harwood v. Root, 2b Fla. 940.

§ 3 HISTORY.


ANNOTATION. Section 85.06, Fla. Stats., 1941, is appropriate

"to carry into effect" § 2 and is pro tanto a compliance with this section. Fulghum v. Deno, 108 Fla. 594, 597, 146 So. 672. See Dalton v. Camp, 141 Fla. 892, 894, 194 So. 219.

Quo,ted in Henley v. Guthrie, 114 Fla. 541, 543, 154 So. 243; Humphreys v. Smith, 117 Fla. 239, 157 So. 497.

ARTICLE XII. EDUCATION

§ 1 HISTORY.

Original section of Constitution 1.885.

was sustained against attacks on grounds of being local legislation and conflicting with this section. State v. Holbrook, 129 Fla. 241, 176 So. 99, quoted in Waybright v. Duval County, 142 Fla. 875, 196 5o. 430 (dis. op.).

Applied in Knight v. Board of Public Instruction, 102 Fla. 922, 136 So. 631.

Quoted in First Nat. Bank v. Board of Public Instruction, 93 Fla. 182, 111 So. 521; Board of Public Instruction v. Croom, 57 Fla. 347, 48 So. 641.

Stated in Gilbert v. Highfill, 139 Fla. 444, 190 So. 813.

Cited in Klemm & Son v. Winter Haven, 141 Fla. 60, 192 So. 652; Arnold v. State, 140 Fla. 610, 190 So. 543; Winter Havep v. Klemm & Son, 132 Fla. 334, 181 So. 153; State v. Lee, 122 Fla. 639, 166 So. 249; State v. Harris, 120 Fla. 555, 163 So. 237; State v. Butts, 111 Fla. 630, 149 So. 746, 89 A. L. R. 946; McDaniel v. Board of Public Instruction, 39 F. Supp. &38; Lewis v. Leon County, 91 Fla. 118, 107 So. 146 (dis. op.).

§ 2 HISTORY.

ANNOTATION. Original section of Constitution 1885.

History of Article.-See State v. Board of Public § 3 Instruction, 126 Fla. 142, 170 So. 602.

This Article provides complete scheme for public HISTORY. schools. State v. Board of Public Instruction, 1~ti Original section of Constitution 1885.

Fla. 142, 149, 110 So. 602. See also, State v. Lee, ANNOTATION. 121 Fla. 360, 410, 163 So. 859; State v. Blake, 110 The term "subordinate school officer" has no Fla. 178, 148 So. 566; State v. L'Engle, 40 Fla. 392, reference to constitutional or statutory ofii.cers 24 So. 539. appointed by the governor or elected by the peo-

AII ~;tatutes designed to effect its purpose should, pie. It was intended to apply to school officers if possible, be construed to do so. State v. Blake, designated by the county or state board of educa-110 Fla. 178, 185, 148 So. 566. tion, such as supervisors and attendance officers.

Its purpose is to maintain proper standards of In re Advisory Opinion to Governor, 97 Fla. 705, enlightened citizensh~. State v. Henderson, 137 709, 122 So. 7. Fla. 666, 668, 188 So. 351. 'trustees of special tax school districts are "sub-

It means that a system of public free schools, as ordmate school officers." State v. Blake, 110 Fla. distinguiShed from the authorized state educational 178, 182, 148 So. 566, discussing the meaning of institutions, shall be established upon principles "subordinate officer." that are of uniform operation throughout the state Supervision of schools of higher grades.-This and that such system shall be liberally maintained. section contemplates that the legislature should State v. Henderson, 137 Fla. 666, 668, 188 So. 351. provide by law wha,t supervision of schools of

The term "public schools" is a comprehensive higher grade the state board of education should one and it should not be narrowed· or restricted in have. State v. Bryan, 50 Fla. 293, 39 St>. 929, holdits meaning, which frequently must b-e ascertained ing Ch. 4384, Acts 1905, establi~hing a state board from the context. As used in § 25 of Art. III, as of control, not ·in conflict with this section. amended in 1900, the term could not be constru,!!d Suit against state board of education t" enforce to mean the "public free schools," as used in this a contract made by the board with an individual section. State v. Bryan, 50 Fla. 293, 39 So. 929. respecting the sale of lands belonging to the state

·Appointment of school "officers".-This provi- for school purposes, was a suit against the state sion does not authorize the legislature to confer without its consent and was therefore dismissed. upon the county board of public instructiof! power Hampton v. State Board of Edpcation, 90 Fkl. 88, to appoint persons to perform county school func- 97, 105 So. 323 , 42 .A. L . R. 1456. tiomt that are essentially official and not merely Statutes in col'lflict with section.-Former statute clerical or ministerial in t·heir nature. State v. purJ)lort~ng to auth.orize county boards of public Board of Public Instntction, 98 Fla. 66, 79, 123 mstructwn to aP.pomt and remove attendance offiSo. 540. cers and to fix their compensation, held in ~onfiict

Liability of school property for special improve- with this section. State v. Board of Public Inments.-Property owned within a municipality by struction, 98 Fla. 66, 1~ So. 540. a- special tax school district, may, by a duly en- Former statute providing for the r-emoval of a.cted statute exp.res.sly so providing, be lawfully special tax sc~on.l ·distri:t trustees b.y tne county encumb€rea with a lien for special or local im- board of publtc mstruchon was held in valid a.nd pr<'>vemt!nts. but such lien may aot be enforced by unenforceable. State v. Blake, 110 Fla. 178, 183, execution; levy, or sale. Blake v. Tampa, 115 Fla. 148 So. 56.6. 348. 15;6 So. 97. Applied in 'State v. Barker, 117 F1a. 331, liN'

Act providing foe tenure of etnploymept of So. 889 . teaj:hers in the public sc.hoolt of Orange county Cited in Hampton v. Matheson, 121 Fla. 768, 164

[119t.] ·-

Art. XII, § 4 EDUCATION Art. XII, § 8

So. 714; Whitaker v. Parsons, 80 Fla. 352, 86 So. 247.

§ 4 HISTORY.


ANNOTATION. The power given the Legislature to appropriate

money to the state school fund is implied. State v. Lee, 121 Fla. 360, 371, 163 So. 859.

Statute waiving the state's right of e,cheat in favor of persons who would be heirs of customary slave marriages, if the marriages hac been legal, held not in conflict with this section. Christopher v. Mungen, 61 Fla. 513, 55 So. 273, disapproving Adams v. Sneed, 41 Fla. 151, 25 So. B93.

State school lands net subject to drainage tax. -See Southern Drainage Dist. v. State, 93 Fla. 672, 112 So. 561.

Applied in Everglades Sugar, etc., Co. v. Bryan, B1 Fla. 75, 87 So. 6B.

Quoted in State v. Barnes, 22 Fla. B. Cited in Messer v. Lang, 129 Fla. 546, 176 So.

54B; 113 A. L. R. 1073 (con. op.) .

§ 5 HISTORY.

Original section of Constitution 1BB5. ANNOTATION.

See annotation to § 4 of this Article. No contract can overcome the mandate of this

section. State Board v. Board of Public Instruction, 13B Fla. 767, 770, 190 So. 253.

Applied in State v. Lee, 121 Fla. 360, 163 So. B59; Everglades Sugar, etc., Co. v. Bryan, 81 Fla. 75, B7 So. 6B; State v. Barnes, 22 Fla. B.

§ 6 HISTORY.

Original section of Constitution 18B5; repealed by amendment, Senate Joint Re6olution 69, Acts of 1939, adopted at general election 1940.

§ 7 HISTORY.

Original section of Constitution 1B85; amended by House Joint Resolution 3, Acts of 1B93, adopted llt general election 1B94.

ANNOTATION. This section and § 9 of this Article must be con

strued together. Amos v. Mathews, 99 Fla. 1, 55, 126 So. 30B.

As this section has been modified by the proviso of § 9 of this Article. Amos v. Mathews, 99 Fla. 1, 55, 126 So. 30B.

The effect of the two sections considered together, u~on the question of apportionment Elf s·ch0ol funds, is that § 9 yields to the legi~lature the authority by a proper statute to apportion school revenue "by gfmer.al l4w based upon some declared princiople of classification to be determinecl by th.e legis·lature." Amoi v. Mathews, 99 Fla. 1. 55, 126 So. 30B. See opinion of T@rrell, ].

This section contemplates only an apportionment and distribution upon the basis of counties as units of such apportionment and distribution, and not upon the basis of particular schools as such units . Boa.rd of Public Instruction v. Croom, 57 Fla. 347, 4B So. 641, holding statut~ undertaking to make certain school3 in the state with an average attendance of eighty percent of the beneficiaries of the act, unconstitutional ,

This section precludes the state, or its authorities, from using school funds for payment of taxes. Southern Drainage Dist. v. State, 93 Fla. 672, · 689, 112 So. 561.

Apportionment and distribution of two-thirds of the fourth gas tax levied by C. 14575, Acts 192!1, for school purposes must be "to the several counties of the state in proportionment to the average attendance upon schools in said counties," as provided in this section. Amos v. Mathews, 99 Fla. 1, 126 So. 308.

Cited in State v. Lee, 122 Fla. 639, 166 So. 249.

' § 8 HISTORY.

Original section of Constitution 1BB5; amended by Joint Resolution 2, Acts of 1903, adopted at general election 1904;. amended by House Joint Resolution 25, Acts of 1917, adopted at general election 191B.

ANNOTATION. Cross 'reference.-See annotation to § 9 of this

Article. School tax is distinct from county taxation for

county purposes.~Hamrick v. Special Tax School Dist., 130 Fla. 453, 460, 178 So. 406. See ~tate v. L'Engle, 40 Fla. 392, 24 So. 539.

"County taxa-tion to pay bonds issued by the county board of 13ublic in,struction to acquire, build and equip modern high school buildings in stated special tax school districts in the county in aid of the districts, is contrary to provisions of Article XII of the Constitution. Leonard v. Franklin, 84 Fla. 402, 93 So. 688." Hamrick v. Special Tax School Dist., 130 Fla. 453, 460, 17B So. 4d6. See State v. L'Engle, 40 Fla. 392, 24 So. 539.

The first charge against funds provided by this section is current operating expenses of the schools. Groves v. Board of Public Instruction, 109 F. (2d) 522. See also, State v. Board of Public Instruction, 143 Fla. 212, 216, 196 So. 452.

This section contains a limitation upon the power of the legislature to authorize a levy for school purpose in excess of the amount prescribed, and this amount can not be exceeded in any form or guise of taxation for the support and mainte-nance 6f the public schools of a county. State v. L'Engle, 40 Fla. 392, 24 So. 531l.

Confining tax collections under this section to refunding bonds when there are original bonds outstanding is not authorized because all valid original bonds have a rigJ :t to participate! in the 'funds collected. State v. Board of Public InstructiOJ;~, 143 Fla. ·212, 215, 196 So. 452.

Refunding bonds issued without an election.-If refunding bonds isomed witlaout an approving election do not naerely extend the original obligation to a.ll the bonds issued under this section , then, amended § 6, Art. IX, is vi'olated as well as tlle contract claus·e, and also this section. State . v. Board of Public lt;lstructio.n, 143 Fla. 212, 215, 196 So. 452. '

Homestead exemption,-Tlae school district tax under this section is not a s!}ecial assessment for benefits within § 7 of Art. X, which exempts stated homesteads "from all taxation, other fhan special ag-essments for benefits" or "from all taxat.iot}, exce{lt for a~'e§sments for special benefits," St.ll-te v, Henderson, 137 Fla. OM, 672, 1SS So. 351,

Whero judgmenta wen) re <; overed against a county board (}f public iustruction after the adop-

[ 1195 ]

Art. XII,§ 9 CONSTITUTION OF THE STATE OF FLORIDA Art. XII, § 9

tion of § 7 of Art. X, partially exempting homesteads from taxation, on indebtedness incurred prior to the adoption, a levy can be made against homesteads for the purpose of. paying these judgments, regardless of the provisions exempting homesteads. Board of Public Instruction v. State, 146 Fla. 93, 94, 200 So. 924, following Board of Public Instruction v. State, 145 Fla. 482, 199 So. 760.

As to levy against homesteads for purpose of paying bonds issued prior to the approval of the homestead amendment, see annotation to § 7 of Art. X.

General judgment against county board is proper.-See Board of Public Instruction v. Osburn, 101 F. (2d) 919.

Stated in Meredith v. Board of Public Instruction, 112 F . (2d) 914.

Cited in Bryan v. Board of Public Instruction, 142 Fla. 691, 195 So. 697; Howey Co. v. Williams. 142 Fla. 415, 195 So. 181; Culmer v. Office Realty .Co., 137 Fla. 675, 189 So. 52; State v. Lang, 131 Fla. 216, 217, 179 So. 401; State v. Board of Public Instruction, 12~ Fla. 235, 176 So. 96; Board of Public Instruction v. First Nat. Bank, 111 Fla. 4, 143 So. 738, 149 So. 213.

§ 9 HISTORY.

current support and maintenance of such public free school~, the intent of the constitution is not violated, in cases where the payment is made for an obligation that was valid when incurred by the county board of public instruction. Board of Public Instruction v. Kennedy, 109 Fla. 153, 161, 147 So. 250.

Issuance of bonds to pay past. due indebtedness. -The consti tution contemplates the payment when due of expenses for maintenance and support of schools, and does not contemplate the issue of bonds to pay for past indebtedness. Barrow v. Moffett, 95 Fla. 111, 113, 116 So. 71. See also, State v. Board of Public Instruction, 139 Fla. 510, 190 So. 686; Board of Public Instruction v. Union School Furnishing Co.f 100 Fla. 326, 129 So. 824.

School boards a.nd districts may become indebted for current expenses within the amount of the current tax levy. Savage v. Board of Public Instruction, 101 Fla. 1362, 1368, 133 So. 341.

Act held not to purport to authorize the county board of public instruction to issue time warrants for the purpose of borrowing money to be paid in the future with interest without reference to the current revenues of the board for the fiscal year in which the time warrants were issued, a·s did the act which was held invalid in State v. Board of Public Instruction, 98 Fla. 1152, 125 So. 357. Board of Public Instruction v. McKenzie, 103 Fla.

Original section of Constitution 1885; amended 39, 136 So. 899. by House Joint Resolution 541, Acts of 1925• Bonds for current expenses are not contem-adopted at general election 1926. plated.-The constitution contemplates an · annual ANNOTATION. budget of county school expenditures, .and does

Cross references.-See generally annotation to not contemplate that interest bearing time warrants § 7 of this Article. As to the powers and duties of or bonds shall be issued and sold to raise county the Board of public instruction generally, see C. school funds "for the support and maintenance of 230, Fla. Stats., 1941, and annotations thereto. public free schools." State v. Board of Public

History.-For history of the 1926 amendment .. to Instruction, 98 Fla. 1152, 125 So. 357. See also, this section, see State v. Lee, 121 Fla. 360, 163 So. Leonard v. Franklin, 84 Fla. 402, 93 So. 688; Bar.859. row v. Moffett, 95 Fla. 111, 116 So. 71; Board of

The school funds are to be regarded as a sacred Public Instruction v. Union School Furnishing trust, and the provisions of 'Jaw safeguarding ex- Co., 100 Fla. 326, 129 So. 824; Board of Public penditures from such funds should be strictly con- Instruction v. Osburn, 101 F. (2d) 919 . . strued, and the mandates of the constitution en- Bonds may be valid where budget requirements forced. McKinnon v. State, 70 Fla. 561, 70 So. and operation of schools not disturbed.-Bonds 557, L. R. A . 1916D, 90. issued to provide for payment of indebtedness in-

They have been segregated by organic law from curred in operating schools and in repairing and general county funds, and must be raised and ex- furnishing school building damaged by hurricane, pended for the distinct purpose only, of mainte- which were made payable from school funds pronance and support of the public free schools, and vided by this section, held valid where no budgetno authority can be given by general or special ary or other requirements were alleged to have Jaws to divert school funds, or any part of them, been violated, and it was not charged or shown from the particular objects specified in the consti- that their payment would materially disturb the tution. Board of Public Instruction v. Kennedy, operation of the public schools, and the pro.ceeds 109 Fla. 153, 156, 147 So. 250. were shown to have been used for public school

The legislature is without power to appropriate purposes. State v. Board of Public Instruction, general county funds for school purposes, or to 126 Fla. 142, 152, 170 So. 602, cited in Board of appropriate county school funds for buildings in Public Instruction v. Osburn, 101 F . (2d) 919, 921. special tax school districts. State v. Board of Bonds for building a.nd equipping building.Public Instruction. 126 Fla. 142, 151, 170 So. 602. Statute providing for the issuance of long term See also, Board of Public Instruction v. Knight, interest bearing coupons warrants for the purpose etc., Co., 100 Fla. 1649, 132 So. 6:t4. of building and equipping high school buildings in

The consistent practice has been to use the stated special tax school districts, said warrants county school fund for current maintenaiJCe pur- to be paid from the general school tax levy in the poses. State v. Board of Pablic Instruction, 126 county to be made annually, held invalid and inFla. 142, 150, 170 So. 602. operative. Leonard v. Franklin, 84 Fla. 402, 93

Disbursement may be made for support and So. 688. maintenance, whether past or current.-So long as Innocent purchasers.-As to rights in federal a disbursement is done "solely" for the support and courts of innocent purchasers of bonds after valimaintenance of public schools, whether for past dation by state court, see Board of Public Instrucsupport and maintenance remaining unpaid, or for tion v. Gillespie, 81 F. (2d) 526, 588, affirming in

[ 1196]


part and reversing in part 10 F. Supp. 657; N ationa! City Bank v. Board of Public Instruction, 11 F. Supp. 1570.

The legislature may now make direct appropriations to the CO\lnty school fund.-By the submission and ratificat ion of the 1926 amendment to this section, the legislature became for the first time vested with the legislative power to increase the c<;>unty school fund by a direct appropriation from the state treasury. State v. Lee, 121 Fla. 360, 367, 163 Sp. 859.

Insofar as this section has been amended so as to confer the implied power on the legislature to make an appropriation of state funds to what has always been historically and leg"llly heretofore considered a purely county purpose, viz.: County school fund purpose (State v. L'Engle, 40 Fla. 392, 24 So. 539) this section constitutes a distinct exception to the constitutional rule stated in Amos v. Mathews, 99 Fla. 1, 126 So. 308, to the effect that "our constitution contemplates that an exclusively state purpose must be accomplished by state taxation; and exclusively county purpose * * * by county taxation." Id.

But the primary source of such fund is the county school tax. State v. Lee, 121 Fla. 360, 392, 859.

As this section imposes no duty upon the legis

appropriate action ex contractu upon obligations lawfully incurred, t he payment of which would not involve an unauthori-zed disbursement of the county school fund under this section. Bo'trd of Public Instruction v. Knight, etc., Co., 100 Fla. 1649, 132 So. 644; First Nat. Bank v. Board of Public Instruction, 93 Fla. 182, 111 So. 521. See Board of Public Instruction' v. Kennedy, 109 Fla. 153, 159, 147 So. 250.

County boards can not be authorized to appoint elective officers.-See State v. Board of Public Instruction, 98 Fla. 66, 123 So. 540.

Former provision.-As to former provision that "the net proceeds of all fines collected under the penal laws of the state within the county" shall be a part of the county school fund, see Board of Public Instruction v. Board of Com'rs, 58 Fla. 391, 50 So. 574.

Cited in Waybright v. Duval County, 142 Fla. 875, 196 So. 430; State v. Board of Public Instruction, 131 Fla. 272., 176 So. 96; State v. Lee. 123 Fla. 720, 167 So. 530; State v. Lee, 122 Fla. 639, 166 So. 249; Blake v. Tampa, 115 Fla. 348, 156 So. 97; State v. Blake, 110 Fla. 178, 148 So. 566; Crandon v. Nelson-Bullock Co., 109 Fla. 341, 147 So. 582.

§ 10 HISTORY. '

lature to make such appropriations, but simply Original section of Constitution 1885; amended confers on the legislature a "power'' to do so that by Senate Joint Resolution 1, Acts of 1921, adopted it did not possess prior to the amendment. State at general election 1922. v. Lee, 121 Fla. 360, 371,, 163 So. 859. ANNOTATION.

Legislature must provide for current state ex- Cross references.-See generally, annotations to penses before an appropriation can be made avail- §§ 11 and 17 of this Article. As to procedure for able for actual disbursement out of the general holding and conducting school district elections, revenue fund to the county school fund. State v. see §§ 236.32 et seq., Fla. Stats., 1941, and annotaL ee, 121 F la. 360, a8 7, 163 So. 859. tions thereto. As · to determination of district

A "declared principle of classification" is the boundaries and consolidation of districts, see § grouping of counties on the basis of population, 230.23, Fla. Stats., 1941. As to nomination of prinattendance, requirements, convenience, similarity cipals and instructional staff, see § 230.43, Fla. of situation or some other reasonable basis of Stats., 1941 and annotation thereto. classification in order that their public require- This section and§ 17 are grants of power as well ments or interests will be best served by the ap-

as limitations upon the granted powers. Hamrick portionment. Amos v. Mathews, 99 lla. 65 • 106• v. Special Tax School Dist., 130 Fla. 453, 461, 178 126 So. 308. Opinion of Terrell, ].

Furnishing of transportation for school children So. 406· The legislature may provide for the division of

from rural districts to central schools is a proper . counties into school districts. The inhibition is expenditure or a "disbursement" chargeable against

against the levying and collection of a tax without the county school fund. Board of Public Instruc- the consent and approval of the qualified electors tion v. Kennedy, 109 Fla. 153· 162• 147 So. 250· of the districts. State v. Robinson, 146 Fla. 615,

But payment of attorneys employed by teachers is not warranted. McKinnon v. State, 70 Fla. 561, 619• 1 So. (2d) 621. 7o So. 557, L. R. A. 1916D, 90. Whose taxing power is separafe and distinct from

Refunding bonds are payable only from funds the county. Hamrick v. Special Tax School Dist., derived under section eight.- Refunding bonds is- 130 Fla. 453, 460, 178 So. 406. sued by board of public instruction cannot be paid Taxpayer is not entitled to notice and opporfrom any county school funds included in this sec- tunity to be heard on question of benefits upon tion, except a reasonable part of the funds that may creation of a special tax school district, as the be derived from levies under § 8 of this Article. question of benefits was determined when this State v. Board of Public Instruction, 143 Fla. 212, section was approved by the people. Lersch v. 216, 196 So. 452. Board of Public Instruction, 121 Fla. 621, 164 So.

Failure of county board of public instruction to 281. require contractor's bond, as required by statute, Disbursement of funds generally.-AI! special does not render the board liable in damages to one tax school district funds whether derived through furnishing labor or material, in view of this sec- this and the following sections or § 17 are distion, requiring money available for board to be bursed by the board of public instruction of the disbursed solely for support and maintenance of county. Board of Public Instruction v. Knight, public free schools. Phillips & Co. v. Board of etc., Co., 100 Fla. 1649, 132 So. 644. Public Instruction, 98 Fla. 1, 122 So. 793, 64 A. The consistent practice has been to use the spe-L . R. 675. cia! tax school district fund raised by this section

Boards of public instruction may be sued in an for maintenance, building, repair, library, and text-[ 1197 1

Art. XII, § 11 CONSTITUTION OF THE STATE OF FLORIDA Art. XII, § 14

book purposes. State v. Board of Public Instruction, 126 Fla. 142, 150, 170 So. 602.

The tax raised by this section must be approved by the freeholders, but it is approved for general school purposes and may be expended by the trustees of the district in conjunction with the county board of public instruction or it may be expended by them for public school purposes as the legislature may direct. Id.

Anticipation of current revenues.-Constitutional provisions and restrictions against the creation of indebtedness or the issuance of bonds, are not to be deemed transgressed by legislation which

Cited in Lee v. Atlantic Coast Line R. Co., 145 Fla. 618, 200 So. 71; State v. Punta Gorda, 144 Fla. 73, 197 So. 734; State v. Manatee, 140 Fla. 24S, 191 So. 529; State v. Holbrook, 129 Fla. 241, 176 So. 99: Board of Publico Instruction v. State, 121 Fla. 473, 163 So. 881; State v. Hamilton. 123 Fla. 381, 166 So. 742; Seaboard Oil Co. v. Chalk, 118 Fla. 383, 159 So. 531, 161 So. 841; Board of Public Instruction v. Union School Furnishing Co., 100 Fla. 326, 129 So. 824; Atlantic Coast Line R. Co. v. Amos, 94 Fla. 588, 115 So. 315.

merely authorizes the anticipation of current reve- HISTORY. § 11

nues or tax levies through the issuance and dis- Original section of Constitution 1885. posal of interest-bearing warrants limited and payable only out of and against uncollected taxes or anticipated current revenues which are reasonably expected to be realized for the purpose of paying them as current expenditures. Savage v. Board of Public Instruction, 101 Fla. 1362, 1369, 133 So. 341, distinguishing Board of Public Instruction v. Vnion 'School Furnishing Co., 100 Fla. 326, 129 So. 824; Barrow v. Moffett, 95 Fla. 111, 116 So. 71; Davis v. Dixon, 98 Fla. 87, 123 So. 536; State v.. Green, 95 Fla. 117, 116 So. 66; Hathaway v. Munroe, 97 Fla. 28, 119 So. 149; Amos v. Mathews, 99 Fla. 1, 126 So. 308; In re Advisory Opinion to Governor, 94 Fla. 967, 114 So. 850.

Issuance of bonds for current expenses. "Neither the constitution nor the statute contemplates the issuing of bonds payable in future years for the purpose of employing teachers for district schools and to defray the general expenses of running and operating such schools." Johnson v. Board of Public Instruction, 81 Fla. 503, 507, 88 So. 308. See Annotation to preceding section.

Payment of commissions for collecting taxes is not prohibited. Coppedge v. State, 99 Fla. 358, 361, 127 So. 319.

Payment of lien for special improvements.-As to expenditure of school funds to pay lien for special or local improvements, see Blake v. Tampa, 115 Fla. 348, 156 So. 97.

Trustees have supervision of schools within district and any provision of the school code tending to destroy such supervision will not be enforced. Board of Public Instruction v. State, 148 Fla. 57, 3 So. (2d) 707.

Statute limiting the right to vote in a special tax school district election to those who "voted in the

ANNOTATION. Cross reference.-See annotation to § 10 of this

Article. Town or city all such cannot levy tax for school

purposes. Hamrick v. Special Tax School Dist., 130 ;Fla. 453, 460, 178 So. 406.

1 No~ issue bonds for such purposes.-A town, not

organized as a school district under this section ?nd §§ 10, and 17 of this article, cannot legally 1ssue bonds to supplement the funds of the "system of public free schools." Munroe v. Reeves, 71 Fla. 612, 71 So. 922.

This section contemplates that the taxes collected under § 10 shall be used primarily for the current expenses of "public free schools within the district," which includes salaries of teachers "so that the distribution among• all the schools of the district be equitable." Johnson v. Board of Public Instruction, 81 Fla. 503, 506. 88 So. 308.

Quoted in State v. Henderson, 137 Fla. 666, 188 So. 351.

Cited in State v. Pampano, 136 Fla. 730, 188 So. 610 (con. op.); Board of Public Instruction v. State, 121 Fla. 473, 163 So. 881.

HISTORY. § 12


ANNOTATION. Stated in Gilbert v. Highfill, 139 Fla. 444, 190

So. 813. Cited in McDaniel v. Board of Public Instruc

tion, 39 F. Supp. 638.

general election next preceding the date of holding HISTORY. § 13

any such election'' contravenes, and is repugnant Original section of Constitution 1885. to. the standard of qualifications established by § 1, ANNO Art. VI and this section and is, therefore, of no ~ TATI<?N. force and effect. State v. County Board of Public Se~ anno~at10n to §_ 10 of this Article. Instruction, 137 Fla. 244, 247, 188 So. 88. !his ?ect10n recogmzes counties and districts as

Majority of votes required.-As to the majority bemg different governmental entities having sepavotes that is required in an election to determine ra~e school funds. Hamrick v. Special Tax School whether a special district school tax may be levied, Dlst., 130 Fla. 453, 461, 178 So. 406. see Pickett v. Russell , 42 Fla. 116, 28 So. 764; Board of Public Instruction v. ~tate, 121 Fla. 473, § 14 163 So. 881. HISTORY.

Tax authorized is not a special assessment with- Originai section of Constitution 1885. in meaning of homestead exemption.-State v. ANNOTATION. Henderson, 137 Fla. 666, 660, 188 So. 351. This provision leaves it entirely to the judgment

Stated in Logan v. Board of Public Instruction, and discretion of the legislaturt as to how many 118 Fla. 184, 158 So. 720; State v. Blake, 110 Fla. normal schools "not to exceed two as the interests 178, 148 So. 566; Bronson v. Board of Public In- of public education may demand." State v. Bryan struction, 108 Fla. 1, 145 So. 833; Grantham v. 50 Fla. 293, 391, 39 So. 929, holding that c. 5384' Board of Public Instruction, 77 Fla. 540, 82 So. 52. Laws 1905, sufficiently complied with this section:

[ 1198 ]


§ 15 HISTORY.


ANNOTATION. Cross t:eference.-See annotation to § 9 of this

Article. The fact that this section has its place under an

article headed "Education," is of no significance as to the meaning and intent of that part relating to county officers generally. State v. Barnes, 25 Fla. 298, 5 So. 722., 23 Am. St. Rep. 516.

The constitution contemplates that there shall be "general funds" of the county and requires that the compensation of county officers shall be paid from such funds, regardless of how the several funds may be designated by the county authorities in a county. Cary v. State, 141 Fla. 866, 868, 194 So. 213.

The law does not make the expense of collecting district school taxes a county purpose so that the expense of collecting district school taxes may be paid from county funds. Coppedge v. State, 99 Fla. 358, 127 So. 319.

The solicitors for county criminal courts are county officers, and under this section their per diem must be paid by the county; and the per diem per annum compensation fixed for them, payable quarterly, is a stated salary within the meaning of the constitution. State v. Barnes, 24 Fla. 29, 3 So. 433.

So much of § 14 of C. 3731, Acts 1887, providing for compensation of county solicitors, as directed the payment of their per diem by the state, was held a violation of this section. Id.

County bond trustees.-Where county bond trustees are not officers of the county, there is no constitutional requirement that the compensation of county bond trustees shall be paid from the general funds of the county as provided by this section with reference to county officers. Charlotte County v. Chadwick, 102 Fla. 163, 135 So. 502.

Quoted in Rawls v. State, 98 Fla. 103, 122 So. 222.

Applied in State v. Smith, 88 Fla. 151, 101 So. 350.

Cited in State v. Harlee, 98 Fla. 575, 124 So. 61.

§ 16 HISTORY.

(No section.) (Proposed additional sef:tion defeated at general election of 1908.)

§ 17 HISTORY.

Section added by amendment, House Joint Resolution 76, Acts of 1911, adopted at general election 1912; amended by Senate Joint Resolution 333, Acts of 1923, adopted at general election 1924.

ANNOTATION. Cross references.-As to levy of tax for payment

of bonds, see § 236.53, Fla. Stats., 1941, and annotation thereto. As to effect of decree validating bonds, see § 75.09, Fla: Stats., 1941.

This section contemplates the issuance of bonds maturing annually, commencing not more than three years from the date of issue, each of such annual installments to be not less than three percent of the total amount of the issue. Weinberger v. Board of Public Instruction, 93 Fla. 470, 478, 112 So. 253.

It is designed to supplement funds provided by § 10 of this Article so as to more amply provide the means for which bonds are usually issued, viz.: The acquisition or improvement of school houses, etc., the life or duration of which would have some relation to or coincidence with the period during which the bonds are to run. Johnson v. Board of Public Instruction, 81 Fla. 503, 506, 88 So. 308.

But it is not self-executing. State v. Special Tax School Dist., 119 Fla. 352, 362, 161 So. 410.

It limits such issuance to "serial" bonds.-State v. Special Tax School Dist., 119 Fla. 352, 360, 161 So. 410.

Organic and statutory provisions must be observed. Grantham v. Board of Public Instruction, 77 Fla. 540, 82 So. 52.

Requirement as to maturity and payment is mandatory and exclusive plan of maturity. Davis v. Dixon, 98 Fla. 87, 123 So. 536.

When a board of public instruction attempts by resolution to fix the maturities oj special tax school district bonds contrary to this section such bonds are void ab initio and can not be validated by curative legislation. Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253.

Serial maturities of special tax school district bonds required by this section to discharge bond issue within fixed time, must conform to constitutional limitations, though it be competent for statute to authorize m odification of maturities by issuance of refunding bonds without resubmitting matter to electorate. Davis v. Dixon, 98 Fla. 87, 123 So. 536.

There may be an "issue" of bonds under this section less in amount than authorized by law and vote of the freeholder electors to issue, and the mere fact that the last installment of such a limited issue is provided to be less than three percent · of the aggregate total amount of the issue, whether the total amount of the "issue" be computed on the basis of the aggregate amount of the particular block of such bonds proposed to be sold, or computed on the total amount of all such bonds that have been "authorized" to be issued, does not render invalid or unconstitutional such an issue. State v. Special Tax School I'ist., 119 Fla. 352, 359. 161 So. 410.

The plan of issuance and retirement of special tax school district bonds set up in the authorizing resolution, not the plan of any proposed restricted issue and sale of such bonds less than the total authorized, affords the criterion by which the validity of a proposed partial issue of bonds is to be judged. Id.

"Existing indebtedness" means obligations of district as governmental entity. Hamrick v. Special Tax School Dist., 130 Fla. 453, 463, 178 So. 406.

Tax roll is guide in determining whether bonds will exceed debt limit and casual errors in the tax roll, if any, are to be di sregarded. State v. Barker, 124 Fla. 358, 361, 168 So. 534.

And taxable property includes lands held by state subject to redemption. State v. Barker, 123 Fla. 512, 167 So. 16.

This section has no controlling effect on the issuance of refunding bonds of special tax school districts, since the adoption of the amendment to § 6 of Art. IX. State v. Special Tax School Dist., 131 Fla. 603, 606, 179 So. 683: State v. Special Tax School Dist., 140 Fla. 65, 73, 191 So. 843;

[ 1199]

Art .. XIII, § 1 CONSTITUTION OF THE STATE OF FLORIDA Art. XIII, § 2

Board of Public Instruction v. State, 130 Fla. 366, 177 So. 615.

The 1930 amendment of § 6 of Art. IX was the last expression of the people on the question of refunding bonds and, as to such; superseded this section. Board of Public Instruction v. State, 130 Fla. 366, 177 So. 615.

Refunding bonds sought to be issued by a special tax school district, without an election were valid although pledging an unlimited tax and were to be issued in exchange for bonds of the district, some of which bonds were issued and sold prior to the amendment in 1924 of this section removing the tax limitation. State v. Special Tax School Dist., 131 Fla. 603, 605, 179 So. 683. See State v. Manatee, 140 Fla. 248, 191 So. 529, quoted in State v. Punta Gorda, 144 Fla. 73, 197 So. 734. ' And none of the maturity specifications or limi

tations of this section can be held applicable to the refunding authorized by § 6 of Art. IX as amended in 1930 without crippling unduly the new power to issue refunding bonds under the 1930 amendment to § 6 of Art. IX. State v. Special Tax School Dist., 107 Fla. 93, 107, 144 So. 356.

Refunding bonds of a special tax school district may be issued under § 6 of Art. IX , as amended in 1930, without a new election although the maturities of the original bonds sought to be refunded may be extended by the issuance of the refunding bonds. State v. Special Tax School Dist., 107 Fla. 93, 144 So. 356, discussing Davis v. Dixon, 98 Fla. 87, 123 So. 536; Jovenal v. Dixon. 99 Fla. 936, 128 So. 27, which were divided prior to the 1930 amendment to § 6 of Art. IX.

A majority of the qualified electors must participate in bond election.-Amended § 6 ot Art. IX is applicable to special tax school district bond elections and for such an election to determine anything at all a majority of the qualifier! freeholder electors within the district mu s ~ participate. Board of Public Instruction v. State. 122 Fla. 19, 21, 164 So. 516; State v. Barker, 121 Fla. 350, 163 So. 695. See Board of Public Instruction v. State, 121 Fla. 473 , 163 So. 881, wherein the bonds involved were issued prior to the amend-ment of § 6 of Art. IX.

Fact that freeholder has homestead ~:xempt does not affect right to vote.-Lersch v. Board of Public Instruction, 121 Fla. 621, 627, 164 So. 281.

There is a continuing duty to levy tax for pay

tion of the United States. State v. Boring, 121 Fla. 781, 802, 164 So. 859. See Gray v. Moss, 115 Fla. 701, 156 So. 262. See also, annotations to ~§ 8 and 10 of this Article.

Use of funds generally.-The ~onsistent p:-actice has been to use the funds raised by this t:ection for interest and retirements on bonds for bu·ilding, furnishing or otherwise permanently improving school buildings and grounds. State v. Board of Public Instruction, 126 Fla. 142, 150, 170 So. 602.

Special tax school district bond funds must be applied to the "exclusive use of public free schools" as required by this section . Acquiring sites, erecting and equipping public school buiJdo ings would be a public free school purpose. Board of Public Instruction v. Knight, etc., Co., 100 Fla. 1649, 132 So. 644.

The funds of one special tax school district can not be appropriated to meet any part of the obligation of another special tax school district. Id.

The legislature is without power to direct the use or appropriation of special tax school district funds raised · under this section. It may define and provide means for directing the use of such funds, but whether or not the means p:ovided will be availed of rests with the freeholders residing in the district. State v. Board of Public Instruction, 126 Fla. 142, 151, 170 So. 602.

Cited in State v. Robinson, 1'46 F la. 615, 1 So, (2d) 621; Lee v. Atlantic Coast Line R. Co., 145 Fla. 618, 200 So. 71; Taylor v. Williams, 112 Fla. 402, 195 So. 175; Lee v. Atlantic Coast Line R. Co., 141 Fla. 545, 194 So. 252; Olds v. Alvord, 133 Fla. 221, 183 So. 711 (eq. div. ct.); Special Tax School Dist., v. Hillman, 131 Fla. 725, J 79 So 805; Long v. St. John, 126 Fla. 1, 170 So. 317, 109 A. L . R. 809 ; Sparks v. Ewing, 120 Fla. 520, J 63 So. 112; Masters v. Duval County, 114 Fla. 205, 154 So. 1i2; State v. Milam. 113 Fla. 491, 153 So. 100, 125, 136; Getzen v. Sumter County, 89 Fla. 45, 103 So. 104 (con. op.); Meredith v. Board of Pubjic Instruction, 112 F. (2d) 914.

ARTICLE XIII. PUBLIC INSTITUTIONS.

HISTORY. § 1

Original section of · Constitution 1885.

ment of bonds. Perry v. Consolidated Special ANNOTATION. Tax School Dist. , 89 Fla. 271, 103 So. 639; The support of institutions named in this sec-Juvenal v. Dixon. 99 Fla. 936, 128 So. 27. tion is made mandatory. State v. Lee, 121 Fla.

And there is now no constitutional tax limita- 360, 400, 163 So. 859 (dis. op.). tion to the levy of taxes for the payment of the Chapter 5384, Acts 1905 relating to the institute original or refunding special tax school clistrict for the blind, deaf and dumb, and for their educabonds, since' the repeal of the tax limitation in tion and industrial training, is not violative of this this section by the 1924 amendment. State v. section. State v. Bryan, 50 Fla. 293, 39 So. 929. Special Tax School Dist., 131 Fla. 603, 1306, 179 Cited in State v. Daniel, 87 Fla. 270, 303, 99 So. 683. See State v. Manatee, 140 Fla. 248, 191 So. 804 (dis. op.). So. 529, quoted in State v. Punta Gorda, 144 Fla. 73, 75, 197 So. 734. HISTORY § 2

Assessments against homesteads.-An enforce- · ment of § 7, Art. X, exempting homeste«ds of Original section of Constitution 1885. less than $5,000.00 in value by refusing to assess ANNOTATION. against them the millage levied for debt service The support of a state prison is made ruandaon bonds issued by a special tax school ' iistrict tory. State v. Lee, 121 Fla. 360, 400, 163 So. 859 P,rior to the adoption of such constitutional pro- (dis. op.). vision will impair the obligation of the contract Quoted in Ex parte Green, 117 Fla. 157, 157 of the bonds within § 10, Art. I, of the Constitu- So. 333.

r 12oo 1

art. v, art. v, · art. v, § 18 judicial department art. v, 20 where statute requires judgment to...

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