
    Herbert J. SMITH et al., Appellants, v. Willard AYRES, Mayor, etc., et al., Appellees (two cases). Vernon NEIL et al., Appellants, v. Willard AYRES, Mayor, etc., et al., Appellees.
    Nos. 33948, 33948-A, 33948-B.
    Supreme Court of Florida.
    April 28, 1965.
    Rehearing Denied May 28, 1965.
    
      Scruggs & Carmichael, Gainesville, for appellants.
    Sturgis & Ritter, Ocala, for appellees.
   PER CURIAM.

This appeal comes directly to this Court under Article V, Section 4(2), of the Florida Constitution, F.S.A., authorizing an appeal to this Court from “final * * * decrees directly passing upon the validity of a state statute * *

These consolidated cases questioned the constitutionality of Chapter 29326, Laws of Florida, 1953, authorizing the City of Ocala to annex adjacent territory as well as the legality of the procedure adopted by the City in holding and conducting said election and declaring the results thereof. In view of our conclusion that the final decree of the able chancellor below correctly decided each issue presented and that no useful purpose would be served by an extended opinion of this Court, we quote in full the pertinent parts of said final decree:

“1. Chapter 29326, Laws of Florida, 1953, provides a method of annexation of territory by referendum to the corporate limits of the City of Ocala, Florida. The act requires the enactment of an ordinance by the city council describing the territory proposed to be annexed, the date of the election, the effective date of the annexation (if successful) and other terms and conditions. The act also requires that the ordinance provide for and call an election, and that the mayor’s proclamation containing a copy of the ordinance and calling such election be published once a week for four consecutive weeks prior to the date of such election in a newspaper of general circulation published in the City of Ocala.
“2. As required by the aforesaid act, the city council of the City of Ocala enacted Ordinance No. 238 which set forth the requirements of the election as provided by the act, and the mayor’s proclamation calling for the election was published as provided by the statute. This ordinance also contained a provision that notice of the election be given by publication in a newspaper within not less than fifteen or more than twenty days prior to the date of the election. The ordinances of the city also provided for a notice to be given in special elections published as aforesaid prior to the date of the election. Defendants’ pleadings admit that the latter (both of which were identical and to which reference was made by Ordinance No. 238) were not published.
“3. At the commencement of the final hearing defendants waived any objections to the qualifications of plaintiffs and admitted that they were competent as alleged in Paragraph I of the complaints. Plaintiffs thereupon rested their case without presentation of testimony or further evidence, and this cause was submitted to the determination of the Court upon the pleadings and the admissions of fact and the law applicable to the issues.
“All other issues having been determined previously, there remained in this final hearing for the Court to resolve the following questions of law:
“I. Was the publication of the notice of election as prescribed in Ordinance No. 238 and as contained in the code of ordinances of the city mandatory to the extent that a failure to publish the same as provided rendered the election of March 17, 1964, and the results null and void?
“II. Is Chapter 29326, Laws of Florida 1953, unconstitutional under the constitution of the State of Florida or the constitution of the United States of America because of ambiguity in the language of the act or because of repugnancy to the due process and equal protection of the law clauses?
“III. Did the procedures adopted by Ordinance No. 238 exceed the authority of the act thereby depriving plaintiffs of the equal protection of the laws and due process of law guaranteed under the constitution of the state of Florida and of the United States of America?
“The Court has decided all other pertinent questions of law favorably to defendants, and the arguments of counsel for both parties were directed to the above numbered questions. Each of the foregoing must be answered in the negative and the relief prayed for by plaintiffs denied in both cases.

“Upon the first question, the pleadings admit (and it was not denied by plaintiffs) that the statutory requirements of notice, that' is, the publication of the mayor’s proclamation (containing a copy of the ordinance required by the act of the legislature) calling for the election was made as provided by the act of the legislature. No other notice or different type of notice was required or specified by Chapter 29326. The City of Ocala as a municipal corporation has no power to extend its boundaries in any manner other than that prescribed by legislative enactment, and where that power is delegated it must be exercised in strict accord with the statute conferring it. Thus, the requirements of notice calling an election provided in an act of the legislature are jurisdictional and must be strictly complied with, except where the legislative act specifies the date of election. In the case before the Court the publication of the mayor’s proclamation was mandatory; it provided the notice to the electors of the holding of the election in the manner, at the time, and upon the terms and conditions fully stated in the ordinance. However, these mandatory requirements are not applicable to the notice of the election as provided in the election code of the city or as contained in Ordinance No. 238, to be given in a later publication. The publication of such later notice was directory only, and if at all required, the failure to publish such notice did not render the election of March 17, 1964, a nullity and void.

“In the second question of law presented to the Court, plaintiffs asserted the act of the legislature under which the annexation election was held is unconstitutional because of the ambiguity of the language of the act. With this contention the Court cannot agree. It is the duty of the Court to construe this legislation to save it constitutional infirmities. The language of the statute should be so construed, if susceptible of two interpretations, to uphold the validity of the act assailed. Having considered all aspects and provisions of the act, the Court concludes and finds that Chapter 29326 Laws of Florida 1953 is not an unconstitutional act under the constitution of the state of Florida and of the United States of America.

“The third question of law attacks the method by which the city of Ocala applied the annexation election. Plaintiffs contended that the holding of one election called by one ordinance wherein two areas were to be voted upon in two separate ballots was not authorized and was an unconstitutional application of the act of the legislature depriving plaintiffs of the equal protection of the laws and due process of the laws under the constitution of the state of Florida and the United States of America. It was contended that the division of the area into two separate zones and the separation of the ballots deprived those in the annexed area of a vote upon the issue of annexing the other zone, while qualified electors of the city could vote upon both zones. Two separate elections might have been held under separate ordinances following the procedures of Chapter 29326 and in such case the residents of either of the zones would not be qualified electors unless the effective date had arrived which would have given them the franchise to vote. There was no evidence that the method of voting had any effect upon the results, and it is not incumbent upon the Court to indulge in speculations or hypotheticals in an attempt to find the procedures contrary to law. The act provides that the terms and conditions relating to the rights of persons and property to be affected by the proposed annexation not specified in the act be set forth in the ordinance calling the election. Admittedly,, not every application of the law and the procedures that might be prescribed or followed thereunder could be held valid and not contrary to organic law, but the Court does not find that the procedures and methods used in Ordinance No. 238 were repugnant to the authority of the act, not authorized, or in violation of any constitutional rights of the plaintiffs, either under the federal or state constitution.

“The plaintiffs are representative of a large class of persons similarly affected by the annexation proceedings, and the questions raised herein are ones of common and general interest to many persons. As requested by defendants (and not refuted by plaintiffs) the Court determines and finds these proceedings to be a class action for the benefit of all persons affected by said annexation election.

“In view of the foregoing, it is ordered, adjudged and decreed as follows:

“(a) That this court has jurisdiction of the subject matter of this cause and of the parties hereto.
“(b) That the equities of this cause are with the defendants and against the plaintiffs, and the relief sought by plaintiffs be, and the same is hereby, denied.
“(c) That this court declares Chapter 29326, Laws of Florida, 1953, to be not unconstitutional under the laws of the state of Florida and of the United States of America.
“(d) That this court declares Ordinance No. 238 of the City of Ocala, a municipal corporation under the laws of the state of Florida, to be valid and ■constitutional enactment pursuant to the provisions of Chapter 29326, Laws •of Florida, 1953.
“(e) That this court declares the election of March 17, 1964, held by the City of Ocala pursuant to said Ordinance No. 238 and Chapter 29326, Laws of Florida, 1953, and the results thereof as reflected by the official canvass to be valid.
“(f) The provisions of this decree shall be binding upon all persons and property within the corporate limits of the city of Ocala and within the territory annexed by said election of March 17, 1964.”

We find the foregoing decree to be free from error. It is hereby approved and adopted as the opinion of this Court.

Affirmed.

DREW, C. J., ROBERTS, THORNAL and O’CONNELL, JJ., and McCORD, Circuit Judge, concur.

BARNS (Retired), J., dissents with Opinion.

BARNS, PAUL D., Justice (Ret.)

(dissenting).

The appellants, as plaintiffs, sought declaratory decrees and other relief in equity against the individual appellees as officials of the City of Ocala and against the City. After answers were filed and pre-trial conference, the chancellor, by final decree, found the equities to be with the defendants and against the plaintiffs and that Chapter 29,326, Laws of Florida (1953), was not unconstitutional ; thereupon, the plaintiffs appealed. I find error and would reverse.

Appellants, by their complaints, assignments of errors and briefs, contend that Chapter 29,326, Laws of Florida, 1953, is unconstitutional. I agree. Without fixing the limits of any area, Chapter 29,326 provides that the City of Ocala may extend its corporate limits so as to include adjacent territory after the adoption of an ordinance to that effect and approval by a majority of the qualified electors of the City and the area sought to be annexed.

The City passed an ordinance providing for the annexation of two different zones on adjacent territory; and upon referendum, the vote was favorable for annexation. Thereupon, the plaintiffs, being property owners in the two zones sought to be annexed, brought separate actions on like grounds, seeking relief against annexation.

Section 8, Article VIII of the Constitution of Florida, provides that, “The Legislature shall have power to establish, and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.” The City of Ocala was chartered by Chapter 7676, Laws of Florida, 1917, which charter defined its powers and fixed its jurisdictional boundaries as to territory.

State ex rel. Davis v. City of Homestead, 1930, 100 Fla. 354, 130 So. 28, held that, “[w]here the jurisdiction and boundaries of a municipality are fixed by statute, they may be extended at any time by statute, but not otherwise as the law now is” and that the City’s attempt to annex adjacent territory was ineffective. In that case, boundaries of the City of Homestead had been fixed by a legislative act and the City attempted to extend its boundaries pursuant to Chapter 6940, Acts 1915, and the court held that this general law of 1915, authorizing extension of corporate limits, applied to self-created municipalities and not to those -municipalities whose powers and jurisdiction were fixed by a special act of the Legislature pursuant to Section 8, of Article VIII of the Constitution, citing Pursley v. City of Fort Myers, 87 Fla. 428, 100 So. 366.

Pursley v. Fort Myers, supra, likewise involved proceedings by which the City, under authority of Chapter 6940, supra, attempted to enlarge its powers and this Court held that: “Section 8 of article 8 of the Constitution, empowers the Legislature to establish and to abolish municipalities, to provide for their government, and to prescribe their jurisdiction and powers and to alter and amend the same at any time, is an exclusive assignment of power to the Legislature” (italics supplied). Hence, the City could not enlarge its powers under the general law.

Klich v. Miami Land and Development Co., Fla.1939, 139 Fla. 794, 191 So. 41, held that the attempt of the Town of Florida City to extend its boundaries was void ab initio. The Town was originally self-incorporated under the general law which incorporation was ratified and confirmed by Chapter 7158, Special Acts, 1915, providing that, “The said Town of Florida City is hereby declared to be a legally incorporated town, with all the powers, privileges, rights and franchises conferred upon such towns by the General Laws of this State [of Florida].” Section 1 of Chapter 6940, Acts, 1915, (now Section 166.01, F.S.A. of the general laws) provided that, “Every city and town in the State of Florida, whether incorporated by a special act or under the general laws of the State relating to cities and towns * * * may extend its territorial boundaries as provided by law.” The court held that upon the legislature confirming and approving the self-incorporation charter by the special act, the Town became incorporated as a statutory municipality under Section 8 of Article VIII of the Constitution and that the attempted extension of its boundaries was void, citing State ex rel. Davis v. City of Homestead, 100 Fla. 361, 130 So. 28, for authority.

In creation of a municipality there is nothing more fundamentally essential than the fixing of its territorial jurisdiction; and it is likewise fundamental that when the Legislature has enacted a law that only the Legislature may amend it. To annex territory to the corporate limits of a municipality would enlarge its jurisdiction and when the territorial limits have been fixed by law, they can only be altered by law. The decisions in the Homestead, Fort Myers, and' Klich cases, above cited, holding that the-legislative established charters of the municipalities involved could not be altered except by the Legislature, ar® well supported by the principle of law prohibiting the delegation of legislative power. As-stated in 6 Fla.Jur., Constitutional Law, §j 147, p. 393:

“It is fundamental that the Legislature may not, except when authorized by the Constitution, delegate its legislative power, that is, the power to enact laws or to declare what the law shall be or to exercise an unrestricted' discretion in applying a law. Unlawful' delegations of legislative power are ineffectual, and in appropriate proceedings, an invalid attempt to delegate-legislative power may be adjudged by the courts, whereupon the Constitution-by its superior force renders the enactment inoperative.”

However, as stated in 6 Fla.Jur., Constitutional Law, § 148, p. 394:

“While the Legislature cannot delegate its power to make a law, it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”

It is my conclusion that Chapter 29,326¿. Laws of Florida, 1953, attempts to delegate legislative power to amend the legislative charter of Ocala as to its jurisdiction and is unconstitutional and void.

I would reverse and remand for proceedings not inconsistent. 
      
      . Klich v. Miami Land & Dev. Co., (1939) 139 Fla. 794, 191 So. 41; Beaty v. Inlet Beach, Inc., (1942) 151 Fla. 495, 9 So.2d 735.
     
      
      . Town of Mangonia Park v. Homan, (Fla.App.1960) 118 So.2d 585; State ex rel. Pope v. Shields, (Fla.App.1962) 140 So.2d 144.
     
      
      . State ex rel. Smith v. Burbridge (1888) 24 Fla. 112, 3 So. 869; Town of San Mateo City v. State (1934), 117 Fla. 546, 158 So. 112; Merrell v. City of St. Petersburg (1926) 91 Fla. 858, 109 So. 315; Bradford v. City of Columbus (1948), 118 Ind.App. 408, 78 N.E.2d 457; State v. Self (Tex.Civ.App.1945) 191 S.W.2d 756; Swift v. City of Phoenix (1961) 90 Ariz. 331, 367 P.2d 791; People ex rel. Peek v. City of Los Angeles (1908) 154 Cal. 220, 97 P. 311.
     
      
      . 6 Fla.Jur. 330-339.
     
      
      . Swift v. City of Phoenix, supra. Cf. People ex rel. Smith v. City of San Jose (1950), 100 Cal.App.2d 57, 222 P.2d 947; State ex rel. Maury County Farmers Co-op Corporation v. City of Columbia (1962), 210 Tenn. 657, 362 S.W.2d 219; Garner v. Benson (1945) 224 Ark. 215, 272 S.W.2d 442; Village of Kingsford v. Cudlip (1932) 258 Mich. 144, 241 N.W. 893; Walker v. City of Pine Bluff (1948) 214 Ark. 127, 214 S.W.2d 510.
     