
    CITY OF LAKE WALES et al., Appellants, v. FLORIDA CITRUS CANNERS COOPERATIVE, Appellee.
    No. 7070.
    District Court of Appeal of Florida. Second District.
    Nov. 2, 1966.
    
      T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    E. Snow Martin, of Martin & Martin, Lakeland, for appellee.
   HOBSON, Judge.

This is an appeal from a final summary decree. The appellee, plaintiff below, filed its complaint alleging that Chapter 63-1513, Special Acts of Florida, 1963, was unconstitutional and prayed that the appellants-defendants, the City of Lake Wales and its duly elected commissioners be enjoined and restrained from levying ad valorem taxes against the property of the plaintiff on an ad valorem basis. Thereupon the defendants filed their motions to dismiss and to strike after which the plaintiff filed its motion for summary decree. Upon a proper hearing on plaintiff’s motion for summary decree and defendants’ motion to dismiss and to strike the lower court entered its final summary decree appealed herein denying the motions to dismiss and to strike of the defendants and ordering the defendants permanently enjoined and restrained from assessing, levying or collecting any tax or taxes against the property described as Area 1 in Chapter 63-1513, Special Acts of Florida, 1963.

Chapter 63-1513, Special Acts of Florida, 1963, is an act extending the corporate limits of the City of Lake Wales to include two areas known as Area 1 and Area 2 and described in said act. No notice of intention to apply for said local law was published as provided under § 21, Art. Ill, of the Constitution of Florida, F.S.A, However, the special act did provide for a referendum prior to the act becoming effective, such proviso reading:

“Section 7. This Act shall not take effect as to said Area 1 or Area 2 unless the annexation of such area or areas has been approved by a majority of the combined qualified electors of the City of Lake Wales, Florida, and the qualified electors residing in said Area 1 and Area 2 herein described, voting in an election to be called and held for that purpose. The City of Lake Wales shall provide for the registration of those electors residing in the areas to be annexed. Said registration shall be held during a full month prior to the date of the election. The ballot to be submitted shall read: VOTE ON BOTH QUESTIONS! If you fail to vote on Question 1 your vote on question 2 will not be counted!
Question 1.
□ For annexation
□ Against annexation
Question 2.
□ For annexation of Areas 1 and 2
□ For annexation of Area 1 only
“The results on Question 2 shall be effective and binding only in the event a majority of those voting at the election shall cast their votes (for annexation) on Question 1.
“The results of the election shall be certified by the City of Lake Wales to the Secretary of State.”

The appellee, being a large property owner located in Area 2 which would be affected by the said act, contended in the court below that Section 7 of the act quoted above does not meet the requirements of § 21, Art. Ill, Constitution of Florida, which provides as follows:

“ * * * Provided, however, no publication of any such law shall be required hereunder when such law contains a provision to the effect that the same shall not become operative or effective until ratified or approved at a referendum election to be called and held in the territory affected in accordance with a provision therefor contained in such bill, or provided by general law.”

The final summary decree appealed provides in part as follows:

“The constitutionality vel non of Chapter 63-1513 was argued at some length by counsel. However, the Supreme Court of Florida has consistently and for many years held that the Courts should refrain from passing on the constitutionality or validity of legislative acts if the cause may be properly disposed of without such a determination.
“This Court specifically refrains from passing on the validity of Chapter 63-1513 and determines this cause on the insufficiency of the vote to annex area 2.
“There is no dispute as to the language of Section 7 of said act, i. e.
‘This act shall not take effect as to * * * area 2 unless the annexation of such area * * * has been approved by a majority of the combined qualified electors of the City of Lake Wales and the qualified electors residing in said area 1 and 2 herein described, voting in an election to be called and held for that purpose
“Further, it is without dispute that the ballot submitted read as hereinafter set out and that the votes cast on each question are as herein represented: to-wit,
VOTE ON BOTH QUESTIONS!
If you fail to vote on Question 1 your vote on Question 2 will not be counted !
Question 1.
17851 For annexation
[ 5521 Against annexation
Question 2.
14711 For annexation of Areas 1 and 2,
13131 For annexation of Area 1 only.
“From the above it is clear that 1,337 designated electors voted in the election. It is equally pellucid that only 471 of said electors voted to annex area 2 which is not a majority as required by the aforesaid act.
“It may be significant to note that 784 of said electors, a clear majority of those voting, desired to annex area 1. Nevertheless, the Court emphasizes that the only question herein determined is that the vote for annexation of area 2 was in the negative. * * * ”

In effect, the lower court held that even though the constitutionality of Chapter 63-1513 was attacked and “argued at some length,” it did not pass upon the validity of said act. This cause was argued and originally briefed without any question of the constitutionality of said act being raised. After oral argument this court directed briefs to be filed on the constitutionality of the act. In the supplemental briefs the parties question the jurisdiction of this court to rule on the validity of the act. We feel that the District Courts of Appeal in this state under the circumstances in this case have jurisdiction to initially determine the validity of an act and we adopt the reasoning set forth by Mr. Justice O’Connell in his special concurring opinion in the case of In Re Kionka’s Estate, Fla. 1960, 121 So.2d 644, wherein on page 646 It is stated as follows:

“At first glance there would seem to be little opportunity for the district courts to determine the validity of statutes or construe the constitution for the first time in a cause, but study of the matter reveals at least three circumstances in which it might be called upon to do so.”
ijí J¡í íjí íjí
“The second circumstance which could occur would be one in which a litigant in the trial court raises the validity of a statute or urges a particular construction •of a constitutional provision which controls the decision in the cause, but the trial court does not in its final judgment or decree directly pass upon the validity of the statute, or undertake to set forth a construction of the constitutional provision. The judgment or decree is appealed to a district court of appeal, which court concludes that it is necessary to a decision in the cause to determine the validity of the statute or construe the constitutional provision. It is not unusual that a trial court will decide a case on a theory which in the view of the trial judge makes it unnecessary to pass upon the validity of a statute, or that the trial judge will by a mental process construe and apply a constitutional provision without setting forth such construction in his judgment or decree, only to have an appellate court determine that it is necessary to decide the validity of the statute, or to construe the constitutional provision. This will happen most frequently in those cases where the appellate court reverses the trial court and is required to assign its reasons therefor. In such cases the appellate court could no doubt remand the cause to the trial court for a written construction of the constitutional provision or determina-! tion of the validity of the statute, but it need not do so and could decide the question without remand. If it does the latter an appeal would lie to this court.”

We think the case now before us falls into the category delineated and discussed in the foregoing paragraph.

Turning now to the validity of Chapter 63-1513, we hold that said act is unconstitutional for the reason that it does not meet the requirements of § 21, Art. Ill, Constitution of Florida.

Section 21, Article III, provides that when no notice of intention to apply for a local act has been published in the prescribed manner no such local law shall be passed unless “such law contains a provision to the effect that the same shall not become operative or effective until ratified or approved at a referendum election to be called and held in the territory affected in cordance with a provision therefor contained in such bill, or provided by general law.”

Upon the reading of Section 7 of the act in question which is the provision contained therein to meet the requirements of the above-quoted portion of § 21, Art. Ill, Constitution of Florida, we find that it is defective and does not meet such con-! stitutional requirement in several respects.. It does not provide who is to call the election, how such election shall be called, or any time limits within which such election should be held.

It is argued that the local act, because it provides for the City of Lake Wales to register those electors residing in the areas to be annexed and the City shall certify the results of the election to the Secretary of State, by inference designates that the City of Lake Wales shall call the election. We do not feel that inferences which may be drawn from a local act fulfill the requirement of § 21, Art. Ill, Constitution of Florida, that the local act shall: contain a provision for the calling and holding of a referendum election.

In our opinion the act in question is completely devoid of any provision as to how or who is to call and hold the election. If it is to he assumed that the City of Lake Wales is to call and hold the election and there being no provision in the act as to any time or time limits for the election to be held, the City under such an act might never hold an election thereon. We have not been cited, nor has our independent research revealed, any special act of the Florida Legislature containing a referendum provision as provided by § 21, Art. Ill, Constitution of the State of Florida, which has not designated either the exact date of the election or a time period within which it should be held. It should be noted that we are not here confronted with a city charter which provides for the power and procedure by which the city may annex contiguous territory nor with an act amending a city charter to provide for the power and procedures of annexation. We are here faced solely with a special act which attempts to become a law by referendum election as provided in § 21, Art. Ill, of our Constitution. We have considered and studied all of the cases set forth in the briefs of the respective parties and conducted our independent research and find that the question squarely presented in this case has never to our knowledge been ruled upon by any of the appellate courts of Florida.

There being no provision by general law as to how and when a referendum election as provided for in the act in question shall be called and held, the mandates of our Constitution as set forth in § 21, Art. Ill, must of necessity be followed.

Further, § 21, Art. Ill, of our Constitution provides that a referendum election shall “be called and held in the territory affected.” (emphasis supplied) The ballot to be submitted to the qualified electors under Chapter 63-1513 makes it possible for a qualified elector residing in Area 2 to vote for the annexation of Area 1 whereby the only territory affected would: be the City of Lake Wales and Area 1.. This is violative of the constitutional man-' date of § 21, Art. Ill, requiring the election to be called and held in the territory affected.

We therefore hold that for the reasons stated above Chapter 63-1513 Special Acts of Florida, 1963, does not meet the requirements of § 21, Art. Ill, Constitution of Florida, and is therefore invalid.

Having held said act invalid, the other questions presented on appeal become moot.

LILES, Acting C. J., concurs.

LANE, A. H., Associate Judge, concurs in part and dissents in part with opinion.

LANE, A. H., Associate Judge

(concurring in part and dissenting in part).

I concur in the decision of my distinguished colleagues insofar as the decision has the effect of determining that Area 2 is not legally a part of the City of Lake Wales, Florida. I must respectfully dissent from the decision, however, insofar as it results in the invalidation of the annexation of Area 1. I must disagree also with the reasoning of the accompanying majority opinion, since I do not believe this Court to have jurisdiction to consider the constitutional questions in this cause.

The factual background giving rise to this litigation is not in issue. This action challenged the annexation of Area 2, adjacent to the City of Lake Wales, Florida, on the alternative grounds that the annexation of Area 2 was not approved by a majority vote of the qualified voting electors in a special election called and held on December 7, 1965, or that Chapter 63-1513, Special Acts of Florida, 1963, which authorized the annexation, subject to referendum, was unconstitutional. The lower court declined to rule on the constitutional questions as unnecessary to a determination of the cause and entered its Summary Final Decree for the appellee, Florida Citrus Canners Cooperative, enjoining and restraining the appellants, City of Lake Wales, et al., from assessing, levying and collecting any taxes and from exercising' any jurisdiction and control over the property in Area 2.

By mathematical process, the chancellor •determined, and I believe correctly, that the proposition as to whether or not Area 2 should be annexed did not carry at the special election. As is noted in the majority opinion, Chapter 63-1513, provided, in part, as follows:

“Section 7. This Act shall not take effect as to said Area 1 or Area 2 unless the annexation of such area or areas has been approved by a majority of the combined qualified electors of the City of Lake Wales, Florida, and the qualified electors residing in said Area 1 and^ Area 2 herein described, voting in an election to be called and held for that purpose. The City of Lake Wales shall provide for the registration of those electors residing in the areas to be annexed. Said registration shall be held during a full month prior to the date of the election. The ballot to be submitted shall read: VOTE ON BOTH QUESTIONS ! If you fail to vote on Question 1 your vote on Question 2 will not be •counted!
Question 1.
□ For annexation
□ Against annexation
Question 2.
□ For annexation of Areas 1 and 2
□ For annexation of Area 1 only
“The results on Question 2 shall be effective and binding only in the event a majority of those voting at the election shall cast their votes (for annexation) on Question 1
“The results of the election shall be certified by the City of Lake Wales to the Secretary of State.”
The ballot was appropriately prepared in the manner required by the Act and tabulation of the results after the election showed as follows:
Question 1.
1785) For annexation
[552 Against annexation
Question 2.
14711 For annexation of Areas 1 and 2
| 313 | For annexation of Area 1 only
In effect the chancellor reasoned that in reality three propositions were submitted to the voters with the following results: ■'
Against annexation . ¡>52
For annexation of Areas 1 and 2 472
For annexation of Area 1 only 313
Total votes cast 1337

The lower court found that the annexation of Area 2 failed since only 472 of 1337 eligible voting electors favored the annexation of Area 2. It is apparent that the annexation of Area 1 carried, since 785 of the 1337 electors voting favored the annexation of Area 1, although this phase of the election is not in issue. The appellants, City of Lake Wales, et al., contend that the lower court erred in assuming that the 785 voters who favored annexation under Question 1 composed the 784 voters who voted on Question 2. This contention defies credence, since the 552 voters who opposed all annexation under Question 1 had expressed themselves unequivocally and in the only manner available to them. The appellants assert that Question 1 and Question 2 must be considered as separate propositions, that a majority voting on Question 1 favored annexation and in turn that a majority voting on Question 2 favored annexation of Areas 1 and 2. If this line of reasoning is adopted, 552 votes cast by qualified electors on a clear and unambiguous proposition, namely, that there be no annexation, will be disregarded. The inescapable fact is that only 471 votes of a total of 1337 votes admittedly cast at the election favored annexation of Area 2.

The lower court perceived and applied the well-established rule of construction that the courts will not pass on the constitutionality of legislative enactments if the case may be decided on other grounds. In the case of Green v. Peters, Fla.App. 1962, 140 So.2d 601, this Court speaking through Judge Smith said in part:

“ * * * Precedent firmly [established] that the decree of any court will not directly pass upon the validity of a state statute nor construe a controlling provision of the Florida Constitution if the case at bar may be determined on other basis. * * * ” (italics supplied for emphasis)

Logic supports this rule and demands that it must be given increased weight in the appellate courts as well as in the trial courts when the effect of the constitutional construction will be to reach beyond the immediate relief sought as in the instant case. Additionally, the rule should be given particular recognition where the effect of constitutional interpretation is to invalidate results of popular decision at the polls.

My learned associates rely heavily on the special concurring opinion of Mr. Justice 0; Connell in the case of In re Kionka’s Estate, Fla.1960, 121 So.2d 644, wherein this able jurist recognized three possible circumstances in which district courts of appeal might originally consider statutory and constitutional construction. The first and third circumstances described in the opinion need not concern us. The second circumstance described by Mr. Justice O’Connell in which a district court might be called upon to determine the validity of statutes or construe the Constitution for the first time in a cause, even though the trial court did not pass directly thereon, is when the district court concludes that it is necessary to a decision in the cause that it construe the statute or constitutional provision. First, and without challenging the persuasiveness or the wisdom of that opinion, I do not believe that the “second circumstance” is so well established as to be treated as a rule of law or accorded the weight of stare decisis. This opinion is a learned discourse by an outstanding jurist on a tender jurisdictional point, but it is the special concurring opinion of a single member of the Supreme Court in a per curiam decision and unless and until it is adopted by a majority of the Supreme Court of Florida when the question is squarely presented, it should not be relied upon as determinative in any cause. This is particularly true since the opinion itself interprets Section 4(2), Article V, Constitution of Florida, relating to the jurisdiction of the appellate courts. In this delicate area the courts must act with restraint and circumspection. Secondly, Mr. Justice O’Connell grounds his reasoning on the predicate of necessity and I do not believe that the constitutional question needs to be reached for a determination of this cause. Even accepting the reasoning of the foregoing opinion as binding, this Court must first clearly determine and hold that the chancellor erred if it is to assume jurisdiction to consider the constitutionality of Chapter 63-1513, otherwise the predicate of necessity contemplated by Mr. Justice O’Connell has not been laid. If the lower court did not err, then this cause can be and was determined on other grounds and this Court is without jurisdiction to consider the constitutional questions. If this Court should find that the lower court did err (a conclusion with which I could not agree), then I would reverse and remand the cause to the chancellor for determination of the constitutional issues because of my view that the authority of the special concurring opinion in In re Kionka’s Estate, supra, is unreliable at this time for the reasons stated.

In summary, I concur in the majority opinion to the effect that Area 2 has not .been annexed to the City of Lake Wales, Florida, but I reach this conclusion on the basis of the results of the special election which was held by the City under Chapter 63-1513, Special Acts of Florida, 1963, on December 7, 1965. I dissent from the 'reasoning with deference and with regret 'but in the persuasion that jurisdictional exceptions to the provisions of the Constitution of Florida and to well-established rules ■of statutory and constitutional construction •are to be avoided. For the reasons stated, 11 believe that the chancellor should be af-Í'irmed. If this Court should conclude that e was in error, it is my opinion that his decision should be reversed and the cause remanded to him for consideration of the constitutional questions which he specifically excluded from his prior considerations. 
      
       785 votes were cast for annexation under ' Question 1 and a total of 784 votes were cast on the two propositions under Question 2, therefore, the unaccounted-for vote, while not material to the outcome, has been counted as favoring the annexation of Areas 1 and 2 in this tabulation.
     