Brown v. Winton , 143 Fla. 478 ( 1940 )

Upon further consideration of this case on rehearing, it appears to me that there is no express statutory authority authorizing the Board of County funds, raised by taxation, the sum of $1500.00 as part payment of its commitment towards the cost and expense of the construction of the State Farmer's Market at Bushnell, Florida, which the bill filed in this case by the appellants alleged "is owned and operated by the Florida State Agricultural Marketing Board." The bill further alleges that the county does not own any interest in said market whatsoever and has no power or control whatever through its county commissioners or otherwise over the operation and control of said market.

It is true, as was pointed out in our former opinion, that in several cases we have held that similar projects have been declared to constitute a county purpose, but in each of those cases there was a statute declaring said project to be a county purpose, or authorizing the county commissioners to spend money therefor. As I read the statutes, there is no express provision of any of the statutes which makes this particular project a county purpose. On the former hearing, I gathered the impression that Chapter 10104 of the Acts of 1925, made this project a county purpose — if not expressly, by strong implication therefrom but that statute provides for a different kind of plant or project from that here involved and also provides that it shall be initiated by the county commissioners of the county. That Act provides that whenever the county commissioners of any county shall determine that the problem of storing its products to await favorable marketing conditions is of sufficient importance in such county to warrant the same, they shall have the right to provide for the erection and operation in such county of a cold storage, curing and drying plant for the storing of animal and vegetable products, and to spend public moneys therefor, and the same is declared to be a proper county purpose. It further provides that the county commissioners of such a county, so determining, shall provide detailed plans and specifications of the proposed plant, together with an estimate of the probable cost, and of the probable business to be expected in its operation, and that these shall be submitted to the board of commissioners of state institutions, who shall examine the same, and if they approve, they shall cause their approval to be entered of record and certified to such board of county commissioners; one-half of the cost of such project, if approved, to be paid by the county and one-half to be paid by the State. The legal title to such cold storage, curing and drying plant shall vest in the State for the use and benefit of the county and shall be under the supervision and control of the State through the board of commissioners of state institutions until complete repayment is made to the State by the county of all funds advanced by the State for the erection of such plant. A county is authorized to raise the necessary funds by the issuance of bonds. The board of commissioners of state institutions is authorized and required to promulgate rules and regulations for the operation of such plant. All employees required for such management and operation of any such plant shall be appointed by the county commissioners, subject to be removed by the board of commissioners of state institutions for incompetency or neglect of duty. It is also made the duty of the state marketing bureau to cooperate with the persons storing animal and vegetable products in such plants and to assist in marketing such products to the best advantage.

Chapter 13809 provides for the creation of a state agricultural marketing board, to consist of the Governor, the Commissioner of Agriculture and the State Marketing Commissioner. Thus the personnel of this board is different from that of the board of commissioners of state institutions. Section 1 of this Act was amended by Chapter 15860, Acts of 1933, and Section 1 of the original Act as amended by the later Act sets forth the powers and duties of the state agricultural marketing board, among which is included the power to purchase suitable sites and erect thereon assembling plants and properly equip the same for the handling of staple crops, meats, poultry and dairy products; to refrigerate or process such products, and to employ such manager and other help as is necessary to operate the plant and market the materials handled, making such charges for such services as will cover the cost of operation. That the funds necessary to defray the expenses of erecting and equipping such plant or plants shall be expended from the General Inspection Fund. Both the original and the amended Act provide that it shall be the duty of the state agricultural marketing board to further extend the activities of the state marketing bureau in the organization of agricultural and marketing associations, and to aid, promote and foster those already operating.

It is perfectly plain that this particular project was not constructed under Chapter 10,104, above referred to, and I find nothing in either one of these three statutes which makes this project a county project; nor does it appear that either one of these statutes impliedly constitutes this project a county project. Of course, if this enterprise had been constructed under Chapter 10104, it would be a county purpose, expressly made so by that statute.

Section 17 of Article IV of the Constitution provides that "The Governor and administrative officers of the executive department shall constitute a board of commissioners of state institutions," whereas under the provisions of Chapter 13809, Acts of 1929, as amended by Chapter 15806, Acts of 1933, the State Agricultural Marketing Board is, as above pointed out, composed only of the Governor, the Secretary of Agriculture and the Commissioner of Markets.

It therefore appears impossible for the provisions of the cold storage statute, Chapter 10104, to be in effect where, as here, under the facts as alleged in the bill of complaint, this market is owned and operated by the Florida state agricultural marketing board, and the county commissioners have no ownership, power or control in or over it.

Section 5 of Article VIII of the Constitution provides that: "The powers, duties and compensation of such county commissioners shall be prescribed by law;" and Section 5 of Article IX provides that: "The Legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes." (Italics supplied.)

It thus appears that the powers of boards of county commissioners are wholly statutory, and that they cannot impose taxes or spend county funds for any purpose other than such as the Legislature has determined to be a county purpose.

It has been suggested that county commissioners have just as much power as the Legislature has to determine what is a proper county purpose, and are in a better position to do so, but in view of the constitutional provisions above set forth I think we must hold, as we have held many times in the past, that the powers and duties of county commissioners are purely statutory and they cannot impose taxes or spend county funds except for county purposes which have been authorized by statute.

It might be plausibly argued that it would be a wise public policy for our Constitution to be so amended as to permit the boards of county commissioners to determine this matter of what constitutes a county purpose, at least in cases where the Legislature has not spoken. As was said by this Court, speaking through Mr. Justice STRUM, in Amos v. Mathews, 99 Fla. 1,126 So. 308, our Constitution, in a general way, contemplates that performance "of State functions shall be confided to stale officers; the performance of county functions of purely local concern shall be confided to county officers. Save as is otherwise clearly contemplated by the Constitution, there can be no compromise with that principle, the origin of which is more ancient than the Constitution itself." But in that same opinion it was said that the powers of county officers are wholly statutory. It is elsewhere said in that opinion that: "The existence of local county officers as a part of our form of government, and for the performance of purely local functions, is clearly recognized by the Constitution, although the Legislature possesses powers of the broadest possible nature consistent with the constitutional existence of those officers, in determining the extent of their local powers and duties."

But here we are dealing with county aid to what is really a state agency, not a mere local concern, even though it is located within and beneficial to the county, and in order for the county commissioners to contribute to its construction or maintenance, the statutory authority to do so must first be obtained. Until the Legislature has declared a plant of this kind to be a county purpose, in the county where it is actually constructed, the county commissioners cannot act in the manner which this bill sought to enjoin; this, in spite of the fact that the county commissioners may really be in a better position to know and determine what constitutes a county purpose than the Legislature itself. However, I do not think this Court has ever held that the county commissioners are vested with authority to determine that question. All of our cases with which I am familiar have dealt with matters which the Legislature had authorized by statute, and assume that a legislative determination of that question is necessary, and that such determination will be given great weight by the courts, and duly enforced, unless it appears that the matter dealt with has no reasonable relation to any legitimate county purpose.

It is contended by appellees that the Legislature has provided that the county commissioners shall have authority "to build and keep in repair county buildings," and "to provide suitable rooms for county purposes." (Citing Section 2153 C. G. L.) We take it, however, that this plant, the "State Farmers Market," is not a county building in the sense in which that word is used in the statute. Furthermore, the full clause with reference to providing "suitable rooms for county purposes" reads as follows: "And in case there are no public buildings, to provide suitable rooms for county purposes." That gets us back again to the question whether or not this particular plant constitutes a county purpose. Until the Legislature has so provided, we must hold that the authority of the county commissioners alone to determine this question is not of itself sufficient. This, under our Constitution, is a legislative power which the board of county commissioners cannot exercise.

My conclusion is that our previous opinion and judgment of affirmance should on this rehearing be set aside, and that the decree below should, for the reasons above stated, be reversed.