State v. Culbreath , 128 Fla. 210 ( 1937 )

Chapter 16461, Special Acts of 1933, Laws of Florida, creates a county legal department to consist of an attorney and two assistants who are to be employed by the County Commissioners of said County at the salaries specified in the Act — $5,000.00 per annum for the County Attorney and $300.00 per month and $200.00 per month, respectively, for the assistants. A stenographer and bookkeeper is also provided, as are supplies and means of carrying on the county's legal work. In addition the County Attorney is required to give a $50,000.00 bond.

Under the Act it is made the duty of the County Attorney to act as legal adviser in all matters of litigation and otherwise, to represent the political subdivisions, governmental agencies and special tax and other agencies, and all district, officers, boards and commissions, of Hillsborough County, and no officer, board or commission of the county is permitted to have any other legal adviser or attorney except at his or their own personal expense to be paid out of the affected individual's own personal funds.

Section 7 of the Act prohibits the employment by the county, or by its political departments, subdivisions, governmental agencies or tax or other districts thereof, of special attorneys in connection with tax foreclosures or assessments but otherwise to have no relevancy to the other parts of the Act.

In this case W.F. Himes, the relator, was employed by the Board of County Commissioners of Hillsborough County, and is now so employed, as special counsel to appear for and represent, together with the Honorable John B. Sutton, the official County Attorney, under Chapter 16461, supra, the County of Hillsborough in the defense of some seventy-five or more suits brought against the County in an effort to fasten on it liability for certain paving certificates issued in the name of the County pursuant to the terms of Chapters 9316, 10139, 10145, 12207, 12208, as it is claimed by the plaintiffs in those actions. The amount involved on the litigation is in excess of $5,000,000.00, and comprehends cases required to be defended in the Federal Courts as well as in the state courts.

For assisting in the litigation as special counsel as aforesaid the County Commissioners agreed to pay, and Himes agreed to accept, the extremely modest sum of $2,500.00 as attorney's fees for the six months period April 1, 1937, to September 30, 1937, but the Clerk of the Circuit Court, being in doubt as to the validity of the employment of Himes as special counsel as aforesaid, because of the restrictive provisions of Chapter 16461, supra, has declined to countersign a county warrant wherewith to make such payment, in consequence of which Himes has brought this mandamus, setting up, among other things, the alleged unconstitutionality of Chapter 16461, supra, because it is a special and local law.

In the writ it is made to appear that the amount sought to be paid Himes was duly provided for in the general county budget for the fiscal year 1936-1937, adopted by the County Commissioners in conformity with Chapter 14678, Acts of 1929. So the sole objection capable of being raised to the payment, if objection can be raised to it, must be found in Chapter 16461, supra, or in the terms of the Constitution if that Act be valid and applicable to a case like that before us.

Section 20 of Article III of the Constitution prohibits the Legislature from passing special or local laws "regulating the jurisdiction and duties of any class of officers, except municipal officers." But Section 24 of the same Article expressly permits the Legislature to "provide" local or special laws "applicable" to county and municipal government, and in terms ordains that in cases where such "special or local laws are provided by the Legislature that may be inconsistent with" general laws relating to county government, the special or local laws must prevail.

Acting under Section 24 of Article III of the State Constitution the published statutes of Florida show that the Legislature has, in the past thirty years, enacted numerous "County Attorney" laws. So far as the records of this court show, such laws have never been seriously questioned as being within the inhibitory provisions of Section 20 of Article III as distinguished from the authorized laws provided for by Section 24 of Article III. A list of such special or local county attorney employment laws, as accurate as I have been able to compile it in the short space of time I have had available for the purpose, is as follows:

LEGISLATURE OF 1909 Chapter 5989, authorizing Board of County Commissioners of Jackson County to employ a Special State Attorney to represent the State in County Judge's Court and Justice of Peace Courts. LEGISLATURE OF 1911 Chapter 6282, authorizing the Board of County Commissioners of Leon County to employ an attorney to represent the State in County Judge's Court. LEGISLATURE OF 1913 Chapter 6595, authorizing Board of County Commissioners of Holmes County to employ an attorney to prosecute those charged with commission of crimes and offenses before County Judge's Court and Courts of Justices of the Peace.

Chapter 6604, authorizing Board of County Commissioners of Lee County to employ attorney to prosecute persons charged with and violating law before County Judge and Justices of the Peace and as legal adviser of the Board.

Chapter 6652, authorizing Board of County Commissioners of Seminole County to employ attorney to represent State in all hearings and trials in which the State is a party in County Judge's Courts and Justices of the Peace Courts.

Chapter 6649, authorizing Board of County Commissioners of St. Lucie County to employ attorney to represent the state on all trials in which the state is a party in County Judge's Court.

LEGISLATURE OF 1915 Chapter 7057, authorizing Board of County Commissioners of Marion County to employ attorney to prosecute those charged with crime before County Judge's Court.

Chapter 7106, authorizing Board of County Commissioners of Santa Rosa County to employ attorney to prosecute those charged with crime before County Judge's and Justice of the Peace Courts.

Chapter 7122, authorizing Board of County Commissioners of Walton County to employ attorney to prosecute those charged with crimes and offenses before County Judge's Court and Courts of Justices of the Peace.

LEGISLATURE OF 1917 Chapter 7427, authorizing Board of County Commissioners of Bradford County to employ an attorney to prosecute those charged with crime before County Judge's and Justice of the Peace Courts.

Chapter 7447, authorizing the Board of County Commissioners of Columbia County to employ an attorney to represent the State in all hearings and trials in which the state is a party in the County Judge's Court and Justice of the Peace Courts.

Chapter 7473, authorizing the Board of County Commissioners of Franklin County to employ an attorney to prosecute those charged with crime before County Judge's and Justices of the Peace Courts.

LEGISLATURE OF 1919 Chapter 8031, authorizing Board of County Commissioners of Duval County to employ an attorney to assist Solicitor of Criminal Court of Record. LEGISLATURE OF 1921 Chapter 8675, authorizing the Board of County Commissioners of Duval County to employ an attorney to assist the Solicitor of the Criminal Court of Record LEGISLATURE OF 1923 Chapter 9661 1/2, authorizing the Board of County Commissioners of Volusia County to employ an attorney to prosecute those charged with crimes and offenses before County Judge's and Justices of the Peace Courts. LEGISLATURE OF 1925 Chapter 11269, amending Chapter 9661 1/2, pertaining to employment of attorney by Board of County Commissioners of Volusia County to prosecute those charged with crime and offenses before County Judge's Court. LEGISLATURE OF 1927. Chapter 13134, authorizing the Board of County Commissioners of Nassau County to employ a County Attorney.

Chapter 13518, authorizing the Board of Public Instruction of Volusia County to appoint an attorney as legal adviser and to represent it in all litigation in which the Board of any Special Tax School District is involved.

LEGISLATURE OF 1929 Chapter 14443, authorizing County Commissioners of Volusia County to employ an attorney as legal adviser and to represent it in all litigation in which their county may be involved. LEGISLATURE OF 1931 Chapter 15571, repealing Chapter 9661 1/2, as amended by Chapter 11269, relating to authority of Board of County Commissioners of Volusia County to appoint a prosecuting attorney for the County Judge's Court and Justices of the Peace Court.

Chapter 15564, amending Chapter 13518, relating to Board of Public Instruction of Volusia County appointing attorney as legal adviser and to represent it in all litigation.

Chapter 15565, authorizing County Commissioners of Volusia County to employ an attorney as legal adviser, and to represent the county in all litigation, and to prosecute those charged with crimes and offenses before County Judge's Court.

Chapter 15563, repealing Chapter 1443, authorizing County Commissioners of Volusia County to employ an attorney as legal adviser and to represent it in all litigation in which the County might be involved.

LEGISLATURE OF 1933 Chapter 16748, providing for a County Attorney for Volusia County. LEGISLATURE OF 1935 Chapter 17494, authorizing the Board of Pilot Commissioners of Bay County to employ an attorney and to provide for payment of salary by the Board of County Commissioners.

Faced with the practical interpretation thus put upon the Constitution and accepted by the people of this state for thirty years, and indeed approved by this Court in the case of State, exrel. Landis, v. Wheat, 103 Fla. 1, 137 Sou. Rep. 277, I should hesitate to so sweepingly strike down Chapter 16461, Acts of 1933, relating to Hillsborough County as unconstitutional, and thereby destroy at one stroke the similar laws of other counties, without inviting them to appear and be heard in defense of their own situations. Especially is this so when it is apparent that Section 24 of Article III and not Section 20 of Article III is the constitutional provision under which the Legislature has proceeded to enact these several laws.

But I agree that the peremptory writ should issue. This is so because a proper interpretation of Chapter 16461, Acts of 1133, supra, did not preclude the employment of relator Himes in the circumstances set up in the alternative writ of mandamus.

The language of Chapter 16461, Acts 1933, that the regular County Attorney of Hillsborough County shall "in all matters in litigation or otherwise" represent Hillsborough County and its subdivisions, has no reference to the defense of special and extraordinary litigation brought against the county as a defendant, such as are the cases wherein relator Himes has been specially employed to assist the County Attorney.

In construing a constitution or a statute the rule is well settled that even in cases within the letter of an enactment, there may be something so obviously absurd, or mischievous, or repugnant to the general spirit of the written law otherwise evidenced, as to justify the judges who expound the law to make an exception of it as being necessary to carry out the law's general intendment. See: Dartmouth College v. Woodward, 4 Wheat 518 (at page 644) (U.S.) 4 L. Ed. 629. And as has been so well stated by Mr. Justice Cardozo when on the Court of Appeals of New York: "Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be so construed, if possible, that absurdity and mischief may be avoided." In re: Rouss, 221 N.Y. 81 (text page 91), 116 N.E. Rep. 782. We have applied this rule in Florida. See: State v. City of Miami, 100 Fla. 1388,131 Sou. Rep. 143, where superfluous words were eliminated from a constitutional amendment to preserve the general intendment of the whole.

Chapter 16461, Acts 1933, supra, construed in accordance with the general intendment of the whole creates a county legal department for Hillsborough County and precludes the employment of special legal advisers and attorneys to represent the county and its districts, boards, bureaus, agencies and commissions only insofar as they are capable of being advised and represented by the County Attorney's office. There is nothing in its language that forbids the County Commissioners from setting up in their budget an extraordinary appropriation for the employment of special counsel to assist in the defense of unusual litigation wherein they have been sued and the County Attorney's office is, by reason of the volume, character and extent of such litigation, and the number of divers courts in which it is pending, in need of special counsel to enable him to adequately defend it.

Such is the case we have here. It is unnecessary to go further in deciding this case than to determine that the special appropriation by the County Commissioners in their budget was a lawful one and that relator has brought himself within the scope of the appropriation. If he has, he is entitled to have his special services paid for out of it. Such he has done and is therefore entitled to a peremptory writ of mandamus against the Clerk of the Circuit Court to compel him to sign the warrant here brought into controversy.

The situation confronting the County Commissioners of Hillsborough County in this case appears to have been not unlike the situation that presented itself when the U.S. Government resorted to the employment of special counsel to recover the Teapot Dome Oil Lands, although the U.S. Attorney General and all of the U.S. District Attorneys in the United States were available to be used for that purpose. It should not be casually assumed that Chapter 16461, Acts 1933, was ever intended to apply to special and extraordinary litigation which the general laws of Florida contemplate shall be represented and defended by the County Commissioners as in their best judgment should be done. The local law here involved does not require a construction that will completely destroy the emergency powers of the County Commissioners specifically vested in them to employ special counsel to defend unusual and extraordinary litigation as distinguished from the handling of the common and ordinary legal work of the county which Chapter 16461 was obviously devised to comprehend.

With the foregoing reservations and qualifications I concur in issuing the peremptory writ of mandamus, but otherwise dissent from the opinion of Mr. Chief Justice ELLIS for the reasons I have hereinbefore set forth.