Dr. P. Phillips Inv. Co. v. City of Orlando

Supreme Court of Florida
Dr. P. Phillips Inv. Co. v. City of Orlando, 152 So. 867 (Fla. 1934)
113 Fla. 843; 1934 Fla. LEXIS 1750
Whitfield

Dr. P. Phillips Inv. Co. v. City of Orlando

Opinion of the Court

Whitfield, J.

This writ of error was taken to judgment for the defendant upon demurrer, in an action to recover the annual interest payment due May 13, 1932, on *849 a note executed by the city May 13, 1926, to pay for lands purchased by the city from the plaintiff.

It is alleged that:

“On or about the 13th day of May, A. D. 1926, the defendant, a municipal corporation, by and through its duly elected Mayor and Commissioners, pursuant to a special meeting and resolution thereat, of the governing body of said city, upon which resolution the mayor and each and every of said City Commissioners voted affirmatively on the proposition, contracted to purchase and did purchase of Dr. P. Phillips, of Orange County, Florida, for the use and benefit of said city and for legitimate, legal, municipal purposes * * * described real property” for which a note for $200,000.00 was given payable in twenty years.

On demurrer the court rendered the following orders:

“This cause coming on this day to be heard on demurrer of the defendant to the amended third count, amended fourth count, amended fifth count, and the first and second additional counts of the plaintiff’s amended declaration heretofore filed, and after argument of counsel and due consideration by the court, the court is of the opinion that Chapter 10973 of the Special Acts of the Legislature of the State of Florida for the year 1925, did not repeal Chapter 9864 of the Special Acts of the Legislature of the State of Florida for the year 1923; that at the time of the alleged purchase described in the declaration, the City of Orlando could not make a valid purchase of real estate, the value of which was in excess' of ten thousand dollars ($10,000.00) without first submitting to the qualified electors owning real estate in said city at an election called for that purpose, the question of ratification or rejection of said proposed purchase, and that, therefore, the contract sued upon as set forth in the several counts of said amended declaration was ultra vires and void.
*850 “It Is, Therefore, Considered, Ordered and Adjudged that said demurrer be and the same is hereby sustained as to each and every of said amended counts and additional counts, to which ruling the plaintiff is allowed an .exception. The plaintiff is allowed twenty (20) days in which to plead further as it may be advised.”
“This cause coming on this day to be further heard upon the demurrer of the defendant to the amended declaration, and each and every count thereof, filed herein on the 9th day of March, 1933, and the plaintiff announcing that it did not care to plead further, it was thereupon,
“Ordered, Adjudged and Decreed that said demurrer to said counts of said declaration is hereby sustained.
“It is further Ordered, Adjudged and Decreed that the plaintiff take nothing by its suit and that the defendant go hence without day, and the action be and is hereby dismissed.”
The two statutes referred to are as follows:
“Chapter 9864, Acts of 1923.
“An Act Requiring the Submission to a Vote of the Qualified Electors Owning Real Estate in the City of Orlando, Florida, any Purchase or Sale of Real Property by said City of a Value of More Than $10,000.00.
“Be It Enacted by the Legislature of the State of Florida:
“Section 1. That whenever the City Council or other governing body of the City of Orlando, Florida, desires to purchase or sell any real property in, said City of a value in excess of $10,000.00 that before consummating any such purchase or sale they shall first submit to the qualified electors owning real estate in said City, at an election to be called for that purpose, the question of the ratification or rejection of said proposed purchase or sale.
*851 “Section 2. That all laws and parts of laws in conflict with the provisions herein be and the same are hereby repealed.
“Section 3. This Act shall take effect immediately upon its passage and approval by the Governor or upon its becoming a law without the Governor’s approval.
“Became a law without the approval of the Governor.” “Chapter 10973, Acts of 1925.
“An Act Requiring the Submission to a Vote of the Qualified Electors Owning Real Estate in the City of Orlando, Florida, Any Purchase or Sale of Real Property Not Approved by the Unanimous Vote of the Council and Mayor of said City.

“Be It Enacted by the Legislature of the State of Florida:

“Section 1. That whenever the City Council or other governing body of the City of Orlando desires to purchase or sell any real property of said city the said purchase or sale shall be only upon the unanimous affirmative vote of the mayor and all members of the said city council or other governing body. If any proposal for purchase or sale of property shall receive the affirmative vote of a majority .of the -city council, but not the unanimous vote as herein provided, then it shall be the duty of the mayor to immediately call an election of the qualified electors of said city owning-real estate in said city to determine by a majority vote the said proposed purchase or sale.
“Section 2. That all laws or parts of laws in conflict with the provisions herein bé and the same are hereby repealed.
“Section 3. This law shall take effect immediately upon its passage and approval by the Governor, or upon its becoming a law without the Governor’s approval.
“Approved May 19, 1925.”

*852 Chapter 10973, Acts of 1925, does not expressly repeal Chapter 9864, Acts of 1923, but it does expressly repeal all laws or parts of laws in conflict with its provisions; and provisions'of the former Act are in conflict with those of the later Act.

The later Act by its terms repeals the former Act insofar as the provisions of the two Acts are in conflict.

The matter to be determined is whether and to what extent the provisions of Chapter 9864, Acts of 1923, are in conflict with the provisions of Chapter 10973, Acts of 1925.

It is obvious that the two Acts relate to the same subject, viz.: the prerequisites to be observed by the city council or other governing body of the City of Orlando, Florida, when they desire to purchase or sell any- real property for the city.

The Act of 1923 affects only a purchase or sale of real property for the city “of a value in excess of $10,000.00,” and requires that such purchase or sale shall be ratified by the qualified electors owning real estate in said city. The Act of 1925 provides- that a purchase or sale of real estate may be made by the city council or other governing body of the City of Orlando, “only upon the unanimous affirmative: vote of the Mayor and all members of the said city council or other governing body.” But if the proposal for purchase or' sale of property shall receive the affirmative vote of a majority of the city council, but not the unanimous vote as provided, then the proposed purchase or sale is to be determined by a majority vote of the qualified electors of the city owning real estate in said city.

Clearly the dominant provisions of the two Acts relate to the same subject, and the provisions of the former Act are inconsistent with the provisions of the later Act. Such *853 conflict by the terms of the later Act operates to repeal the former Act to the extent of the conflict.

Nothing in the later Act indicates an intent to continue in force the provision of the former Act that proposed purchases or sales of any real property for the city “of a value in excess of $10,000.00” shall be ratified by the qualified electors of the city owning real estate therein.

The provisions of Chaptér 10973, Acts of 1925, cover the entire subject of the manner in which any purchase or sale of real estate for the City of Orlando shall be authorized ; and such provisions do not require the approving vote of the qualified electors of the city except where the proposal for purchase or sale of property for the city shall not receive the unanimous affirmative vote of the mayor and all members of the city council or other governing body of the city.

Such provisions of Chapter 10973 being in conflict with the provisions of Chapter 9864, Acts of 1923, on the same subject, the conflicting provisions of the former Act are, by the terms of the later Act, repealed. It is immaterial whether Chapter 10973 is a revision or an amendment of Chapter 9864; the later Act expressly repeals the provisions of Chapter 9864 insofar as they are in conflict with Chapter 10973.

The declaration alleges and the demurrer admits that a resolution was adopted for the purchase of the property by the governing body of the City of Orlando, “upon which resolution the Mayor and each and every of the City Commissioners voted affirmatively on the proposition,” therefore, the statute does not require the purchase to be approved by the qualified electors of the city, and the demurrer should have been overruled.

Reversed.

*854 Davis, C. J., and Ellis, Terrell, Brown and Buford, J. J., concur.

Reference

Full Case Name
Dr. P. Phillips Inv. Co. v. City of Orlando.
Status
Published