Mahood v. State Ex Rel. Davis

Buford, C.J. In this case the Attorney • General as relator, together with the co-relators, filed an information in the nature of quo warranto against the respondents, seeking to oust the respondents from exercising the powers, duties and franchises of a municipal corporation and the officers thereof within certain territory described in the information, which territory is that part of the area sought to be included within the boundaries of the Town of Miami Shores lying East of an imaginary line running Northeasterly and Southwesterly about the middle of Biseayne Bay. It is alleged in effect amongst other things in the information that in February of 1926 there existed a community known as Miami Shores which was located West of Biseayne Bay; that in that community there were forty nine (49) qualified electors and that thirty-eight (38) of these electors proceeded to organize a municipal corporation under the provisions of sections 1825 to 1828 R.G.S. of Fla. 2935 to 2938 C.G.L. 1927, and by the proceedings had in that regard included within the eorpor *1256 ate limits the territory lying East of Biscayne Bay which is described in the information and which was separated from the village of Miami Shores by the waters of Biscayne Bay which waters immediately East of the village of Miami Shores cover an area about three miles wide. It was alleged in the information that the area sought to be affected by the information was not a part of, nor connected with, the village of Miami Shores in any way. There was a motion to quash the information which was denied. There was a motion to dismiss which was denied. A demurrer was overruled. The respondents answered. There was a motion to strike the answer of the Town of Miami Shores, a demurrer to the answer and motion for judgment of ouster. .Thereupon, judgment of ouster was entered. We could affirm the judgment of ouster were it not for the fact that the answer alleges, “It is'denied that said territory is not a part of the community of Miami Shores, and that it is far removed and isolated from the community”. This allegation traverses the allegation of the information to the effect that the territory sought to be affected by the information was not a part of the community of Miami Shores. This presents a question of fact which the respondents are entitled to have tried by a jury and, until the truth in regard to that fact has been ascertained, it is not needful to discuss other questions raised by the pleadings. There exists no statutory authority for the citizens, residents or inhabitants of a hamlet, village or town in this State to create a municipal corporation embracing territory not a part of such hamlet, village or town. Such inhabitants may establish for themselves a municipal *1257 government to have jurisdiction over that hamlet, village or town under the provisions of the statute hereinbefore referred to. In Town of Enterprise vs. State, ex rel, 29 Fla. 128, 10 Sou. 740, in an opinion by Mr. Justice Mabry, it is said: “In Chicago & Northwestern Railway Co. vs. Town of Oconto, 50 Wisc. 189, it was held that the word ‘town’ as used in the Constitution of that State, denotes a civil division composed of contiguous territory, and under the power given to county boards by statute to set off, organize, vacate and change the boundaries of towns in their respective counties, such boards can not make a valid order changing the boundaries of a town so that it shall consist of two separate and distinct tracts of land. In Smith vs. Sherry, Ibid, 210, it was said: ‘The idea of a city or village implies an assemblage of inhabitants living in the vicinity of each other, and not separated by any other intervening civil division of the State.’ We think that the inhabitants of a hamlet, village or town recognized as a community of persons authorized to form a municipal government under the general act for the incorporation of cities and towns in force in this State, include persons living on contiguous territory, and that an attempt to incorporate two distinct detached tracts of land, as corporate territory under one government, is unauthorized and void. 1 Dillon’s Munc. Corp. sec. 27. The idea of a municipal government with outlying detached municipal provinces, was not contemplated by the statute.” We do not think it can be successfully maintained that by including the expanse of waters of Biscayne Bay lying and being between the two separate tracts of land' as a part of the incorporated area, the tracts thus separated may be by this means united- and held to be con *1258 tiguous and subject to be included in a municipal corporation by tbe action of tbe inhabitants of a community which was located and had its existence entirely on one side or the other of the Bay. We are not prepared to say that the legislature could not by proper enactment create a municipality embracing an area a part on one side and a part on the other side of a Bay of this character, but in this case the legislature has not attempted to do that. The pleadings all admit that there was a village known . as Miami Shores and that the inhabitants of this village proceeded to the organization of a municipal corporation. The question of fact to be determined is whether or not that village had its existence and its location in whole or in part of the lands East of the middle of Biscayne Bay. Webster’s New'lnternational Dictionary defines a.hamlet as: “A little cluster of houses in the country;” a village, as: “Any small aggregation of houses in the country, being in general less in number than in a town or city and more than in a hamlet;” a town, as: “in general, any large collection of houses and buildings, public and private, constituting a distinct place with a name and not incorporated as a city”. It is admitted that Miami Shores was a hamlet or village and if the allegation of the information that that hamlet, or village, was located entirely West of Biscayne Bay then there was no authority in law for the inclusion of the territory East of Biscayne Bay within the corporate limits of the Town of Miami Shores. For the reasons stated, the judgment must be reversed with directions that further proceedings be had not inconsistent with this opinion. It is so ordered. *1259 Reversed and remanded. ■Whitfield, Ellis and Terrell, J.J., and Hutchinson, Circuit Judge, concur. Brown, J., concurs in part and dissents in part. Davis, J., disqualified.