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I am of opinion, therefore, that the defence under consideration no answer to the action.

The defence mainly relied on is the second.

This may be thus stated : After the bonds and coupons named in the declaration were issued by the city of Pensacola, the charter under wbich it was organized was repealed, and the municipal body known as the City of Pensacola ceased to exist, and the present city of Pensacola was organized under another law, and is a distinct and different municipal corporation from that which issued the bonds. Therefore, the present city of Pensacola is not liable on these bonds and coupons.

In other words, it is claimed that the city of Pensacola, as a municipal corporation, ceased to exist by its failure to adopt the provisions of the act of February 4, 1869, within nine months after the approval of that act ; that as a consequence all the debts and obligations incurred by the city prior to February 4, 1869, were cancelled and destroyed ; and that the present city of Pensacola having been organized under the act of 1869, by the same inhabitants, and covering the same territory, and with substantially the same powers, is relieved of any obligation to pay the debts of the city incurred prior to February 4, 1869.

The legislation which produces such effects ought to be clear and explicit. "To ascribe a purpose to accomplish such results to the Legislature of Florida would be to charge it with an attempt to perpetrate a most unconscionable and barefaced fraud.

I do not believe that the Legislature of Florida had any such purpose, or that its legislation, fairly construed, can have any such result. А construction of the law which sustains such a purpose ought to be avoided if it can be fairly and reasonably done, consistently with the terms of the act.

A careful reading of the acts of 1868 and 1869 shows that the purpose of those acts was not to destroy the municipal corporations already existing in the state, but to carry out the requirement of the Constitution by establishing a uniform system of municipal government in the state, and to rehabilitate the existing municipal bodies with new and uniform privileges and powers.

The language of section thirty of both the acts carries this idea : “All the powers and privileges conferred in and by this act may be exercised by any city or town within the limits of this state heretofore incorporated.” Had the section stopped here, there could be no pretence that its effect was to create new corporate entities. But it proceeds to declare that “ it shall be lawful for any previously incorporated city or town to reorganize their municipal government under the provisions thereof, by a voluntary surrender of their charters and privileges, and by an organization under this act.”

This clause provides for the "reorganization,” not the destruction, of municipal corporations. It does not provide for a new corporate entity. If it did, it would follow that every time a city or town received a new charter it became a new corporate body. The language of the section thus far seems to recognize the continued and unbroken life of the cities and towns reorganized under the act.

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The last clause of the section which, upon a failure of an incorporated town or city to accept the provisions of the act within nine months, repeals the acts vesting such city or town with power, does not necessarily destroy the corporate existence of such city or town.

Judge Dillon, in his learned work on Municipal Corporations, says (vol. 1, sec. 116): “Where the functions of an old corporation are suspended, or where the corporation by loss of all its members or of an integral part is dissolved as to certain purposes, it may be revived by a new charter, and the rights of the old corporation granted over to the same or a new set of corporators, who in such case take all the rights and are subject to all the liabilities of the old corporation of which it is but a continuation.”

The text is sustained by the citation of the following among other authorities : Rex v. Passmore, 3 Term R. 119, 247 ; Regind v. Bewdley, 1 P. Wms. 207; Colchester v. Brooke, 7 Queen's Bench, 383.

My construction of the latter part of section 30 is, that it provided merely for a suspension of the powers of the municipal corporations failing to reorganize under the act, and not for a dissolution of the corporation itself.

As soon therefore as the city of Pensacola organized under the first six sections of the act, it was simply the assumption by the city of the new powers and privileges which the act conferred, and was not the creation of a new corporation.

That it was not the purpose of the legislature to give the effect to the act of 1869 claimed by defendant is apparent from the enactment of the Legislature of Florida, approved February 3, 1870, entitled “ An act relating to cities," and copied at large in the statement of the case.

I am of opinion, therefore, that the failure of the city to reorganize under the act of 1869, within nine months after its passage, did not put an end to the corporate existence of the city of Pensacola, and that its subsequent reorganization under the first six sections of the act did not create a new, but was merely the rehabilitation of an old corporate entity.

But conceding that the effect of the acts of August 6, 1868, and February 4, 1869, and of the failure of the city of Pensacola to reorganize under the latter act was what the defendant claims, and that it was the purpose of the legislature to accomplish that result, the question remains, Was it competent for the legislature to destroy a municipal corporation, or to put it in its power to destroy itself, so as to cancel and wipe out its debts and liabilities?

It was held by Judge Story, in Mumma v. Potomac Company, 8 Pet. 281, that a private corporation might be dissolved by the legislature or by judicial sentence, and that such dissolution did not impair the obligation of a contract any more than the death of an individual impairs the obligation of his contract. He placed this view on two grounds : (1) Because the obligation survives and the creditors may enforce their claims against any property belonging to the corporation; and (2) because every creditor is presumed to contract with reference to the possibility of the dissolution of the corporate body.

The case is different with a municipal corporation. The main, and in most cases the only source from which creditors of a municipal corporation an expect to receive payment of their claims, is found in the power of

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(No. 5.

taxation. The dissolution of the corporation of course puts an end to its power of taxation and renders the collection of debts owing by it an impossibility.

Now in the case of these bonds, the act which authorized the indebtedness for which they were issued also provided for the levy of a tax to pay the indebtedness.

That provision for taxation was as much a part of the contract between the city of Pensacola and the bondholder as if it had been inserted in the body of the bond. A repeal of the tax provision would have impaired the obligation of the contract, and would have been a violation of the Constitution of the United States.

In the case of Von Hoffman v. Quincy, 4 Wall. 535, the result, the decision of the court, was, that when a statute authorized a municipal corporation to issue bonds and to exercise the power of local taxation to pay them, and persons have bought and paid value for bonds issued accordingly, the power of taxation thus given is a contract within the meaning of the Constitution, and cannot be withdrawn until the contract is satisfied.

The state and the corporation in such cases are equally bound. See also Butz v. Muscatine, 8 Wall. 583; Welch v. St. Genevieve, 1 Dillon, 135; Lansing v. County Treasurer, Ib. 522.

If the legislature cannot take from a municipal corporation the power of taxation conferred contemporaneously with the power to borrow money, and for the purpose of repaying the money borrowed, it would seem to follow a fortiori that it could not utterly destroy the municipal corporation which had issued bonds on the faith of a law authorizing taxation to pay them, thus not only repealing the power of taxation, but leaving no corporate entity in existence against which suit might be brought.

How the obligation of a contract made by a municipal corporation for the payment of money could be more effectually impaired it is difficult to conceive.

Upon this question Judge Dillon, in his work on Municipal Corporations, vol. 1, sec. 114, says:

“ As respects creditors of a municipal corporation, their rights are protected from legislative invasion by the Constitution of the United States, and no repeal of a charter of a municipal corporation can so dissolve it as to impair the obligation of the contract

, or, it may probably be safely added, preclude the creditor from recovering his debt."

In support of this view the learned author cites the following authorities: Cooley Con. Lim. 290, 292; Curran v. Arkansas, 15 How. 312; Thompson v. Lee County, 3 Wall. 327; Havemeyer v. Iowa County, Ib. 294 ; 2 Kent, 307, note; County Commissioners v. Cox, 6 Ind. 403 ; Coulter v. Robertson, 24 Miss. 278; Soutter v. Madison, 15 Wis. 30; Blake v. Railroad Co. 39 N. H. 435.

My conclusion is, therefore, that no legislation of the State of Florida could so destroy the city of Pensacola as to relieve it from the obligation to

pay the bonds issued by it; that the present city of Pensacola is the same corporate entity as that by which the bonds were issued, reorganized and clothed with a new charter and with new powers and privileges, it is true, but still the same municipal corporation, and liable to pay the bonds and coupons in controversy in this suit.


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Any other conclusion would produce the most monstrous results. It would put it in the power of every city and town in Florida to cancel all its indebtedness incurred prior to February 4, 1869, amounting to many hundred thousand dollars, and to set their creditors at defiance. It would enable every city which receives a new charter to repudiate all indebtedness contracted under its old one, and leave the holders of its bonds utterly without remedy.

In my judgment neither of the defences set up by the special pleas are good in law.

The demurrer to the pleas must, therefore, be sustained.


(To appear in 116 Mass.)




The St. of 1874, c. 397, § 1, providing that “all divorces nisi heretofore decreed under

and by authority of " the St. of 1870, c. 404, "shall be deemed and taken to be, and have the force and effect of, absolute divorces from the bonds of matrimony,” and that the justices of this court, upon petition and notice, may authorize the party, against whom such divorce has been granted, to marry again, is unconstitutional.

PETITIONS under the St. of 1874, c. 397, § 1, for leave to marry again. Each petitioner alleged that his wife had obtained from him in 1872 a divorce nisi under the St. of 1870, c. 404, for the cause, in the first case, of extreme cruelty, and, in the second, of cruel and abusive treatment.

Upon the first petition being presented on August 13, 1874, in vacation, with a request for an order of notice by publication, Gray, C. J., reserved for the consideration of the full court the question of law whether upon the facts alleged the petition could be entertained. The case was submitted upon briefs.

G. Sparhawk, pro se.
H. G. Parker, as amicus curice, contra.

In the second case, an order of notice having been issued and returned at September term, 1874, it appeared that the petitioner had been divorced, as alleged, and not otherwise ; and Morton, J., found that upon the evidence the prayer of the petitioner ought to be granted, if, upon the facts above stated, it was lawful so to do, and reserved that question for the determination of the full court.

J. D. Long, for the petitioner.

GRAY, C. J. The question presented by these two cases is of the validity of the St. of 1874, c. 397, § 1, by which the legislature has enacted that “all divorces nisi heretofore decreed under and by authority of” the

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St. of 1870, c. 404, “shall be deemed and taken to be, and have the force and effect of, absolute divorces from the bonds of matrimony; and the justices of the supreme judicial court, upon petition filed by the party against whom such divorce has been granted, and upon such notice as the court shall order, may authorize such party to marry again.”

The question thus presented for the determination of the court is of the greatest importance, involving a consideration of the constitutional boundary between the legislative and the judicial departments in this commonwealth, and deeply affecting the rights and duties of many of its citizens ; for if this enactment is invalid, innocent persons, who, relying upon its terms, have contracted a new marriage since its passage, may find that their marriage is unlawful; and if it is valid, husbands and wives, temporarily separated, who intend to return to one another, or some even who are actually reunited, may find themselves absolutely divorced, without any petition by either, and perhaps against the wishes of both.

Owing to the importance of the question, the earliest opportunity was afforded to bring it before the full court, and one of these cases having been submitted upon briefs, the subject has been considered by all the judges.

To declare a divorce between husband and wife involves an investigation of a judicial nature. 2 Kent Com. (12th ed.) 106 ; Shaw v. Gould, L. R. 3 H. L. 55, 91. Whether such a power can be exercised by the legislative department depends upon the Constitution of the state. The authorities elsewhere upon the subject are fully collected and classified in 1 Bishop on Marriage & Divorce (5th ed.), c. 39, and in Cooley on Constitutional Limitations (3d ed.), 109 et seq. But it is unnecessary to consider them, because the provisions of our own Constitution are decisive.

The 30th article of the Declaration of Rights prefixed to the Constitution declares that in the government of this commonwealth the legislative department shall never exercise the executive and judicial powers or either of them. The third chapter of the Constitution, entitled “Judiciary Power,” contains this article : “All causes of marriage, divorce and alimony, and all appeals from the judges of probate, shall be heard and determined by the governor and council, until the legislature shall by law make other provision.” The word “causes ” is evidently here used as equivalent to controversies

" and the terms, as well as the position of this article in the Constitution, manifest the intention of the people, in establishing a frame of government, to commit the hearing and determination of all cases of divorce and probate appeals to the judiciary only. The reason for temporarily intrusting the jurisdiction of these matters to the governor and council doubtless was that it had been vested in them under the province charter.

The probate jurisdiction was reserved to the governor and council by the terms of the charter itself. One of the earliest acts of the general court of the province provided that “all controversies concerning marriage and divorce shall be heard and determined by the governor and council; and another act, not long after, authorized them, upon proof of long absence of a husband or wife without being heard of, to declare that the other party should be deemned single and unmarried, and to grant leave to that party to marry again. Prov. Sts. 1692–93 (4 W. & M.),


cases ;

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