42 Fla.

Volume 42 — Florida Reports

99 opinions

42 Fla. 1Smith v. Guckenheimer & Sons (1900)
Statement. In this cause the appellant (complainant below) filed his bill on the 5th day of July, 1894,, in the Circuit Court of Hillsborough county, against the appellees, alleging in substance that he was the head of a family consisting of a wife and eig'ht minor children residing in the State of Florida, all of his family residing with him and dependent upon him for support; that on the 28th of April, 1894, and long prior thereto, he was the owner in fee simple of lot ten…
42 Fla. 54Jacksonville Street Railroad v. Walton (1900)
Writ of Error to- the Circuit Court for Duval County. Motion to strike bill of exceptions. The facts in the case are stated in the opinion of the court.
42 Fla. 86Hamburg v. Liverpool & London & Globe Insurance (1900)
Writ of Error to the Circuit Court for Brevard County. The facts in the case are stated in the opinion of the court.
42 Fla. 95State ex rel. Lamar v. Dillon (1900)
Writ of Error to the Circuit Court for Duval County. Statement.
42 Fla. 116Pickett v. Russell (1900)
Statement. On August 22, 1899, appellee filed his bill in equity in the Circuit Court of Duval county against appellant, alleging that on June 20, 1899, and at the time of filing the bill,, complainant was a qualified elector of Duval county, residing in the city of Jacksonville and a taxpayer, paying taxes on real and personal property situated in said city; that on June 20, 1899, a pretended election was held in the several election precincts of Du-val county which were…
42 Fla. 141Raines v. State (1900)
Wjrit of error to the Circuit Court for Jackson county. The facts in the case are stated in the opinion of the court.
42 Fla. 149Morrison v. State (1900)
Writ of Error to the Circuit Court for Holmes County. The facts in the case are stated in the opinion of the Court.
42 Fla. 174Gray v. State (1900)
1. A statement in a motion for a new trial is not self-supporting in view of a ruling of the court denying it. 2. Chapter 4400, Laws of 1895, prohibits prosecuting officers from .commenting before the court or jury upon the failure of an accused to testiy as a witness in his own behalf, and it is the duty of trial courts to see that such impropriety is not committed 3-, After the state closed its testimony, the accused examined several witnesses in his defence, though fie did not testify in his own behalf; the prosecuting officer in his argument to the jury stated that the evidence as it stood before them unexplained and uncontradicted, although it did not point positively to the •defendant was sufficient to warrant a verdict of guilty: Held, Tó be a permissible comment on the evidence as it existed, avoiding as it did, any reference to the failure of the defendant himself to explain or contradict what had been introduced. 4. Near the body of a deceased found in a road a human track was seen leading away with certain peculiarities; a witness for the State testified that about one month before the killing he saw tracks made by the accused and they were the same as that found near the body: Held, not to be objectionable on the ground of remoteness. 5. To show flight after a homicide it is competent to prove bj witnesses living so near the accused and accustomed to see him so often when at home that a failure to see him there would tend to show absence,' that he was not seen there after the killing. 6. Testimony having a .tendency to prove a material circumstance in the case is material though its bearing may be slight. 7. Aft.er the retirement of the jury under the charge of the court they returned into court and requested to know whether under the law they must find a verdict of murder in the first degree or acquit; or whether they could find the accused guilty of some lesser offence, and the court reread to them portions of the charge given bearing on the matter enquired about; thereupon defendant objected to a word in the charge on the ground that it was indefinite and the court added in writing and read to the jury the explanation of the word as insisted on by the defendent: Held, That the objection made was removed by the explanation given by the court. 8. A portion of a charge excepted to must be construed in connection with other portions given and also the facts in evidence- 9. It is proper to refuse a portion of a charge asserting that the jury should know to a moral certainty that they have all the facts and circumstances before them before they can convict; and if they feel after considering the evidence that some important matter of pro'of has been omitted, and their minds were not satisfied this was a reasonable doubt upon which they should acquit. 10. Testimony held sufficient to sustain the verdict.
42 Fla. 184Brown v. State (1900)
1. 'Motions in arrest of judgment and rulings thereon are parts of the record proper, and an appellate court will not review a ruling upon such motion when the motion and ruling are evidenced to it only by bill of exceptions. 2. Where an indictment wholly fails to state a criminal charge against a defendant; he may take advantage of such fatal defect primarily in an appellate court. 3. An indictment alleging that in a certain county and on a certain ^ day I. B. and O. G., “being and knowing,themselves to be persons forbidden to intermarry by reason that the said I. B. was the father of the said O. G., did then and there unlawfully, feloniously and incestuously have carnal knowledge each of the body of the other, contrary,” etc., charges an offence under Section 2601, Rey. Stats. 4. ’Under the general exception to the court’s refusal to give several instructions asserting distinct propositions of law, an appellate court will examine no further than to ascertain that one of such instructions was properly refused. 3. An accomplice is a competent witness, and a conviction may be had upon his uncorroborated testimony if it satisfies the jury of- the defendant’s- guilt beyond a reasonable doubt; and these rules apply to prosecutions under Section 2601, Rev. Stats., as well as to other prosecutions for criminal offences. 6 The crime denounced by Section 2601, Rev. Stats., can be committed by a father with his illegitimate daughter, and the admissions of one charged with the offence prescribed by this section are competent evidence of the relationship alleged to exist between him and the person with whom the offence is alleged to have been committed, and such admissions, if believed to be true by the jury, are sufficient evidence of relationship to sustain a finding as to that fact. 7. Evidence examined and found sufficient to support the verdict.
42 Fla. 192McCune v. State (1900)
1. Assignments of error based upon alleged rulings, which rulings do not appear from the transcript of the record, otherwise than by an assertion of the facts in a motion for a new trial overruled, will not be considered by an appellate court. 2. Where the evidence does not expressly locate the crime as having been committed in the county charged in the indictment but there are in the evidence references to various localities and landmarks at or near, the scene of the crime known by or probably familiar to the jury, and from which they may have reasonably concluded that the offence was committed in the county alleged, the venue is sufficiently proven. 3. Evidence examined and found sufficient to support the verdict.
42 Fla. 194Martin v. State (1900)
Writ of error to the Ciruit Court for DeSoto County. The facts in the case are stated in the opinion of the Court.
42 Fla. 196Stewart v. State (1900)
Appellate Practice — Writ of Error How Tested. Under Section 1270 Revised Statutes writs of error from the Supreme Court must be tested in the name of the Chief-Justice of such court; and if tested in the name of the trial court judge, it is tantamount to no writ of error at all, and will be dismissed by the court sita sponte.
42 Fla. 197Magill v. State (1900)
Where the testimony for the State establishes the offence against an accused beyond a reasonable doubt, it will not be set aside by the appellate court because of conflicts produced by the testimony of two witnesses introduced for the defence tending to establish an alibi for the defendant.
42 Fla. 199Mims v. State (1900)
1. Trial courts, in the exercise of a sound judicial discretion, have power to excuse one summoned as a juror, although he may be qualified to serve, and parties interested object, and appellate courts will not interfere with the action of the trial court in this respect, unless the discretion be abused. 2. It is proper to refuse instructions as misleading when they are based on the theory of a party as to facts in evidence and ignore the legal effect of other facts applicable to the relation and rights of the parties. 3. Evidence examined and found sufficient to support the verdict.
42 Fla. 205Williams v. State (1900)
Writ of Error to- the Criminal Court of Record forDuval County. The facts in the case are stated in the opinion of the court.
42 Fla. 210Williams v. State (1900)
1. It is not essential to the validity of a judgment of conviction in felony cases, that the record should show affirmatively that the defendant was personally present at the hearing of and the ruling upon his motion for a new trial. 2. Evidence examined and found sufficient to support the verdict.
42 Fla. 212Roberson v. State (1900)
Writ of Error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.
42 Fla. 223Roberson v. State (1900)
Writ of Error to the Circuit Court for Duval County. The facts in the case are stated in the opinion of the court.
42 Fla. 232Chism v. State (1900)
1. The rule of the common law is that a boy under the age of fourteen years is conclusively presumed to be incapable of committing the crime of rape, and this rule, under the statutes in this State, is still in force here. 2. -It is error to instruct the jury, in a case of rape, that if they believe from the evidence that the defendant was under the age . of fourteen years a presumption arises that he is-incapable of committing the crime, and that this presumption continues until the State by competent testimony overcomes it' and establishes capacity by showing that he has reached the age of puberty to the exclusion and beyond a reasonable doubt.
42 Fla. 236Smith v. State (1900)
Writ of Error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.
42 Fla. 239Wright v. State (1900)
Writ of Error to the Circuit Court for Leon County. The facts in the case are stated in the opinion of the court.
42 Fla. 244West v. State (1900)
Writ of Error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the court.
42 Fla. 251Squires v. State (1900)
1. Where a motion for change of venue in a criminal case based upon the ground that a fair and impartial trial cannot be had in the county is supported only by the defendant’s affidavit, an appellate court will not reverse the ruling denying such motion in the absence of some showing that defendant was prevented from securing corroborative evidence by hostile public sentiment. 2. Where a defendant in a criminal prosecution testifies as a witness in his own behalf, the State has the right on cross-examination to interrogate him as to whether he has previously been convicted of a criminal offence. 3. Evidence examined and found sufficient to support the verdict.
42 Fla. 253Lewis v. State (1900)
Writ of Error to the Circuit Court for Calhoun County. The facts in the case are stated in the opinion of the court.
42 Fla. 260King v. State (1900)
Writ of Error to the Criminal Court of Record for Duval County. The facts in the case are stated in the opinion of the court.
42 Fla. 266Miller v. State (1900)
1. In dilatory pleas the greatest accuracy and precision in statement are required, and they must be certain to every intent and free from ambiguity. 2. The statute (Section 13SS Revised Statutes) authorizing State Attorneys to procure assistant counsel by and with the consent of the court, defines and limits their duties in going before grand juries to advise upon legal points and in framing indictments, and it does not contemplate that such assistants may remain with the grand jury while they deliberate and vote on bills and then urge and request them to find a bill. 3. The presence of assistant counsel, procured with the consent of the court, before the grand jury during the examination of evidence, and his mere presence at the time a vote is taken on a bill would not be sufficient ground, in the absence of any abuse shown, to set aside the indictment, but when such counsel, after remaining in the grand jury room during the examination of evidence and the deliberation of the jury in the case, including the time when the vote is taken, urge and request the finding of the bill, the policy of the statute is violated and the unbiased judgment of the jury on the merits of the case is invaded. This rule applies with even more force in case the counsel has not been procured with the consent of the court.
42 Fla. 276Blue Springs, Orange City & Atlantic Railroad v. Broughton (1900)
42 Fla. 276Brooks v. Laurent (1900)
42 Fla. 277Bushnell v. Hulst (1900)
42 Fla. 278Cleveland v. State (1900)
42 Fla. 278Dewey v. Robert (1900)
42 Fla. 279Fulton v. Gesterding (1900)
Writ of error to Circuit Court, Marion county; William A. Hocker, Judge.
42 Fla. 280Louisville & Nashville Railroad v. O'Brien (1900)
42 Fla. 281Odom v. Funck (1900)
42 Fla. 281Poyntz v. Reynolds (1900)
42 Fla. 282Simms v. Thompson (1900)
42 Fla. 283Summerlin v. Citizens Bank & Trust Co. (1900)
Writ of error to Circuit Court, Hillsborough county; Joseph B. Wall, Judge.
42 Fla. 284George Wiedemann Brewing Co. v. Campbell (1900)
42 Fla. 285Wideman v. Jones (1900)
42 Fla. 285Youmans v. Swain (1900)
42 Fla. 287Middleton v. City of St. Augustine (1900)
Appeal from the Circuit Court for St Johns County. Statement. The Charter of the city of St. Augustine (Chap. 4636 laws of 1897) grants the city power to purchase, lease, acquire, receive, hold and sell, let or otherwise dispose of property, real, personal and mixed, when necessary for municipal purposes, or specially authorized by charter (Sec. 2, Art. 1); provides that the legislative power of the city shall be vested in the city council (Sec. 1, Art. 6); that the mayor and city council shall have power by ordinance to light the city and its streets, avenues and public buildings with gas or other means of illumination; to acquire, construct, establish, maintain and keep in repair all buildings and property necessary for municipal purposes (Sec. 3, Art. 6); and by section 4, Article 7, that “the mayor and council of the city of St. Augustine in their corporate capacity are hereby authorized to issue from time to time bonds of said city of such denomination, bearing such rate of interest, not exceeding five per cent., and becoming due in such time and upon such conditions as may be determined, to an amount not exceeding in the aggregate fifteen per cent, of the assessed value of taxable property of said city at the time of issue; provided, that none of said bonds shall be issued except for the following purposes: Funding the floating debt of the city, purchase or erection of a market house or city hall, improving the public streets, for sewerage, and for illuminating said city. Provided further, that before the issue of said bonds shall be made, the issuance of the bonds proposed to be issued at any time shall be provided for by ordinance expressing in exact terms the amount and the purposes for which said issue of bonds are to be used, and subsequently approved by a majority of the vote cast by the freeholders of said city, who are qualified to vote as shown by the registration and tax books of said city, at an election held for that purpose, at a time and in a manner prescribed by the city ordinance.” Chapter 4600, enacted at the same session of the legislature, empowers cities and towns generally to own, construct and operate gas plants and electric light plants and to issue bonds for that purpose in accordance with its provisions. In March, 1899, the city council of St. Augustine passed an ordinance which was approved March 9th by the president of the city council as acting mayor, as follows : AN ORDINANCE. Establishing an Electric Light Plant to be owned and operated by the City of St. Augustine, and to provide for the issue of bonds for the payment of same. Be it ordained by the City Council of the city of St. Augustine, Florida: Section 1. That the mayor is hereby directed to issue his proclamation calling an election to be held the 28th day of March, 1899, to determine by a vote of the majority of the qualified voters of said city, who shall be freeholders of said city actually voting, whether or not the bonds proposed by this ordinance shall be authorized and issued. Sec. 2. The mayor and city council of the city of St. Augustine in their corporate capacity, and as and for the said corporation, shall issue from time to time bonds of said city in denominations of one hundred dollars ($100), and five hundred dollars ($500). The said bonds shall be payable in gold of standard weight and fineness, twenty years after the date thereof, and shall bear interest at the rate of five (5) per cent, per annum, payable semi-annually at the city ,of St. Augustine, and shall have interest coupons attached thereto, payable at the periods of six months from the date of said bond. Said bonds shall be prepared under the direction of the mayor and the city council, and shall be signed by the mayor, the president of the city council and the city clerk, and shall bear the corporate, seal of the city of St. Augustine, and shall be issued, sold and delivered in amounts as the proceeds are needed to pay the improvements contemplated; and the proceeds shall be. applied for the purposes for which such issues of bonds is authorized. If the entire issue of twenty thousand ($20,-000) dollars of bonds, as provided herein and submitted to be approved by a majority of the qualified voters, who shall be freeholders and voting as aforesaid, be authorized at said election, then the entire issue so proposed may be from time to time sold and delivered as the proceds are needed. Sec. 3. For the payment of the principle and interest of the bonds issued finder this ordinance, the electric light plant of the city of St. Augustine is hereby •especially pledged as security, and the entire taxable property in said city is also pledged. The mayor and city council shall annually levy such special tax on the taxable property within the corporate limits of said city as may be necessary to pay the interest on said bonds and provide a sinking fund for the payment of said bonds, and may from time to time, by ordinance, require of the disbursing agents handling the moneys hereby provided for, such bonds for the faithful performance of their duties as may be necessary to protect the interests of the city. The special tax levied for the the interest and sinking fund shall be collectable only in lawful money of the United States, or in past due coupons of the said bonds, and when collected shall be solely applied to the payment of interest and the forming of a sinking fund to meet the principal of said bonds. Sec. 4. The board of bond trustees for the water -works system of the city shall receive the said bonds as soon as the same are prepared and executed, and sell the same at not less than par, and dispose of the proceeds as provided by ordinance. Said trustees and their successors shall control the moneys arising from the sale of said bonds, and faithfully apply the same to the purposes for which authorized, and to no other purpose, and they shall have -exclusive control and direction over the construction, maintenance and operation of the electric light plant which may be constructed or put in operation by and under the provisions of this ordinance, and over the electric light plant buildings, grounds, until the payment of the bonds hereby provided for, and the rents, proceeds, profits and issues thereof, after paying necessary and legitimate expenses of operating, improving and perfecting the same, shall be by lh~m turned over to the city treasurer on account of redemption fund for said bonds, to be applied to the payment of the principal'and interest of said bonds. Sec. 5. For the purpose of supplying the city and its citizens with light by means of an electric light plant, the issuance of bonds to the amount of twenty thousand ($20,000) dollars is proposed and provided for. . At the election to be held on the 28th day of March, A. D. 1899, the question of the issuance of bonds to the said amount of twenty thousand ($20,000) dollars, and for said purpose, shall be so submitted to the qualified voters of said city, who shall be freeholders of said city, that each voter shall have an opportunity to vote for or against the issuance of bonds for such purpose. The qualified voters of said city, who shall be freeholders of said city, desiring to vote at said election, shall each cast one paper ballot. The city council of said city shall cause to be printed ballots, substantially in the following form: Official ballot, election March 28th, A. D. 1899, Ward No. — (Ward to be printed), City of St. Augustine. Make a cross mark (x) before the proposition to issue bonds if you favor such issue; otherwise make a cross mark (x) before the proposition against the issue of bonds. For the issuance of bonds to erect an electric light plant to the amount of twenty thousand dollars ($20,000). Yes. Against the issuance of bonds to erect an electric light plant to the amount of twenty thousand dollars ($20,000). No. Each voter desiring to vote for the issuance of' bonds for the purpose of supplying the city with light by means of an electric light plant, to' the amount of twenty thousand dollars ($20,000) shall make a cross mark (x) in front of the proposition favoring the issue of said bonds; and each voter desiring to vote against the issuance of bonds for said purpose shall make a cross mark (x) in front of the proposition against the issuance of said bonds. If a majority of the qualified voters of said city, who shall be freeholders of said city, actually voting at said election, shall cast ballots in favor of the issuance of said bonds, there shall be issued bonds for the purpose of supplying the city with light by means of an electric light plant, f'o the amount of twenty thousand.($20,000) dollars or so much thereof as may be deemed by said trustees to be necessary for that purpose, but if a majority of such voters so voting do not cast ballots with such words written or printed thereon, then and in that event no bonds shall be issued ior that purpose. At said election each qualified voter of said city shall have the right to vote, and no person shall vote at such election, unless he be a qualified voter of said city and a freeholder of said city, and any person voting or attempting to vote at said election who is not a qualified voter of said city and who is not a freeholder of said city, shall be punished by a fine of not more than one hunderd dollars, or imprisonment not exceeding sixty days, upon the conviction thereof before the municipal court of said city Sec. 6. If the use of the full amount of bonds authorized to be issued for said designated purpose shall be deemed by said trustees to be inadvisable., then the surplus of said bonds in the hands of the trustees shall not be sold, but shall be cancelled by the trustees and delivered to the city council and publicly destroyed, and any other or further issue of bonds for such purpose shall not thereafter be made by virtue of this ordinance, or the vote of the voters at said election. Sec. 7. The mayor shall cause the publication of a proclamation calling said election, together with this ordinance, daily for at least ten days net prior to the date of said election, in a newspaper published in the city of St. Augustine. The city council shall, at least three days before the day of said election, appoint three inspectors and a clerk of election to hold said election in each ward of the city. If any inspector or clerk of election named by the city council fails to attend at the proper polling place at the time for opening of the polls on the day of election, those inspectors present shall fill the vacancy, and if all the inspectors and clerks be absent, then those persons present qualified to'vote shall fill the vacancies. The polls shall be opened and closed at the times appointed by law for the State elections, and shall be located at or near as practicable to the p,oiling places used in the last city election. The inspectors and clerk of election in each ward shall make out and sign duplicate returns of said election upon blanks prepared and furnished therefor by the city council, showing the number of persons voting at said election, and the number of votes cast respectively for and against said purpose, and shall deliver one copy thereof to the mayor and one copy to the city clerk for the city council. As soon as practicable after said election, the city council shall meet and canvass and declare from the, said returns of the inspectors and clerks of election the results of said election, and same shall be recorded among the records of the proceedings of the city council. Said election shall in all other respects be conducted as nearly as may be in compliance with the laws and ordinances regulating the holding, returning, certifying- and canvassing of city elections. Sec. 8. This ordinance shall go into effect as soon as published.” The acting mayor issued his proclamation calling an election in pursuance of the provisions of the ordinance to be held March 28, 1899, to determine whether or not the bonds proposed by the ordinance should be issued the amount and for the purpose provided thereby. The election was held and a majority of the votes cast were in favor of the proposition submitted. Thereafter, on May 6, 1899, another ordinance was passed, and approved by the president of the city council as acting mayor, for the purpose, of carrying into effect the provisions of the ordinance of March 9th, reciting that an election was held under the provisions of the, latter ordinance to determine whether or not the bonds proposed should be authorized and issued to the amount and for the purpose provided thereby; that at said election the issuance of ' the bonds was approved by a majority of the votes of those qualified voters who were freeholders of the city; and that by the ordinance of March 9th the issuance of bonds to the, amount of $20,000 was provided for, but that the purpose for which said issue of bonds was to be used is in said ordinance expressed in general terms. Section 4 of this ordinance prescribes the forms of the bonds to be issued with the coupons to be attached. The form prescribed for those of the denomination of $100 is as follows: UNITED STATES OF AMERICA. No STATE OF FLORIDA, $100.00 DEVICE. The City of St. Augustine, in the State of Florida, will pay to the bearer at the, office of the city treasurer in the city of St. Augustine, or at the National Union Bank, in the city of New York, or at such other fiscal agency in the city of New York as may be hereafter appointed by the government of the city of St. Augustine, on the 1st day of September, A. D. 19x9, the, sum of one hundred dollars in gold coin of the United States of America, with interest thereon at. the rate, of five per cent, per annum, payable semi-annually in like gold coin on the first day of March and September of each year at the office of the city^ treasurer in the city of St. Augustine, or at the National Union Bank in the city of New York, or at such other fiscal agency in the city of New York as may be hereafter appointed by the government of the city of St. Augustine, on presentation and a surrender of the annexed interest coupon as they severally become due and payable. This bond is one; of series, aggregating twenty thousand dollars of like date, known as Electric Light Plant Bonds as of the city of St. Augustine, issued under and in accordance with the provisions of an ordinance of said city of St. Augustine, entiled “An ordinance establishing an electric light plant to bp owned and operated by the city of St. Augustine, and to provide for the issue of bonds for the payment of same,” approved March 9th, 1899, and published March nth, 1899, which ordinance and the issue of which bonds were approved by more than a majority of the votes cast at a special election duly called and held under the provisions of , said ordinance on the 28th day of March, 1899, and in pursuance of ordinances to carry into effect the provisions of the foregoing ordinance. It is hereby certified that the issue of bonds, of which this is one, is made in strict conformity with the laws of the State of Flordia and ordinances of the. City of St. Augustine, duly authorizing the same, and that all proceeedings and things essential to the validity of this bond have duly happened and been performed and all requirements of laws and ordinances have been fullly complied with by the proper officers in the issuance of this bond. In testimony whereof the city of St. Augustine has issued this bonds bearing date the 1st day of Septémber, A. D. 1899, and has caused it to be singned by the mayor of said city and by the president of the city council and the city clerk thereof, under the seal of the corporation. Mayor of the City of St. Augustine. President of the City Council of the City of St. Augustiné. City Clerk of the City of St. Augustine. Countersigned and registered in compliance with the ordinance of the City of.St. Augustine, Florida, this ........day of.............., A. D......... Seal of Board of Bond Trustees of the City of St. Augustine, Florida. Chairman. Secretary. Member. Board of Bond'Trustees of the City of St. Augusine, Florida. Form of Coupon. This coupon, after maturity, is receivable at par for all taxes and dues payable to the city of St. Augustine. City of $2.50 St. Augustine, State of Florida. Will pay the, bearer at the office of the city treasurer, in the city of St. Augustine, or at the National Union Bank in the city of New York, or at such other fiscal agency in the city of New York as may be hereafter appointed by the, government of the city of St. Augustine, two dollars and fifty cents in United States gold coin, on the........ day of................A. D. ........ being six months’ interest on Bond number ........, coupon number........ City Treasurer. The form prescribed for those of the denomination of $500 is substantially the same except as to the amounts, and need not be given in full. We notice, however, that in this form the bond is made to fall due September 1st, 1899, instead of 1919, but as no point is made on it in this- court we infer that the date given is a clerical error in the record, and that the. form given in the ordinance states the date as September 1, 1919. The .other sections of the ordinance are as follows: Section 1. That the mayor and city council, acting for the said corporation, shall have prepared, and shall issue from time to time, five per cent, coupon bonds of the city M St. Augustine, to be known as Electric Light Plant Bonds of the city of St. .Augustine, h> the amount of twenty thousand dollars, fifty bonds of the denomination of one hundred dollars each, and thirty bonds of the denomination of five hundred dollars each, and payable twenty years after the date thereof, at the city of St. Augustine or at New York City, bearing interest at the rate of five per cent, per annum, payable semi-annually, with interest coupons attached thereto, payable at the ends of periods of six months from the date, of the bond. Said bonds shall be prepared under the direction of the mayor and the city council, shall be signed by the mayor, the president of the city council and the city clerk and shall bear the corporate seal of the city of St. Augustine, and the coupons shall bear the engraved signature of the city treasurer, and shall be issued, sold and delivered in amounts as the proceeds are, needed to pay for the improvements contemplated. Both principal and interest shall he made payable in United States gold coin. Sec. 2. The board of bond trustees at the city of St. Augustine shall receive the said bonds as soon as the same are prepared and executed, and sell the same at not less than par, and dispose of the proceeds as provided by ordinance. Said trustees and their successors shall control the moneys arising from the sale of said bonds and faithfully apply the same to the purposes for which authorized, and to no other purpose, and they shall have exclusive control and direction over the construction, maintenance and operation of the electric light plant zvhich may be constructed, or put in operation by and under the provisions of this ordinance, and over the electric light plant buildings and grounds, until the payment of the bonds hereby provided for, and the rents, proceeds profits, and issues thereof, after paying the necessary and legitimate expenses of operating, improving and perfecting the same, shall be by them turned over to the city -treasurer on account of redemption fund for said bonds to- be applied to the payment of the principal and interest of said bonds. Sec. 3. That said bonds shall be made payable to bearer, and shall be delivered by said trustees only after being countersigned by the chairman and secretary and one other member of the board of trustees, with their seal attached; whereupon said bonds shall become payable to the lawful bearer thereof. Said bonds shall be, as soon as prepared, delivered to the said board of trustees. . It shall be the duty of the trustees, when any bond is sold or issued by them, to register the same in a book to be kept for that purpose. Sec. 5. The city treasurer, the treasurer of said board of bond trustees and the city’s other agents or officers collecting or receiving money from any assistant, tax or any other source to be applied to the payment of said bond, or any of them, or to the sinking fund or in terest thereon, or to any portion thereof, shall -each make on the first day of each and every month written report in duplicate of the amount of money collected or received for such purpose, from whom, when collected or received, and the amount collected or received from each person, and of all payments by him under the provisions of the said ordinance and the amendments thereto ; such report must embrace a detailed exhibit of all coupons collected, received, paid or taken by such officer or agent, stating particularly the. date when -each coupon has been collected, received, taken up or paid, and the number of the bond from which the several cupons are detached, and the amount and date of maturity of each; also a statement of all bonds redeemed, paid or purchased, with number and amount of each bond, the date of redemption, payment or purchase, from whom received, and the amount paid for each. One of the said reports shall, on or before the third day of the same month, be filed with the city^ clerk and the other with the secretary of the trustees provided for in said ordinance. Sec. 6. • It shall be the duty of the city treasurer or other agent or officer receiving or accounting for bonds or coupons redeemed, paid or purchased, to cancel the same when received, in the presence of the person from whom he shall receive them, and to deliver all such bonds and coupons to the said trustees together with his report above mentioned each month. Sec. 7. The city treasurer, by and with-the advice and direction of the city council, from time to time shall apply all the moneys which may come into his hands as redemption or sinking fund to the purchase of said bonds at their market value, or shall under the same direction, invest the same money in bonds of the United States, or the State of Florida, as may seem to said'city council most advisable. Sec. 8. It shall be the duty of said board of bond trustees on or before the first day of October of each and every year, to report to the city council the number and amount of said bonds outstanding, with an estimate of the amount necessary to be raised for interest and sinking fund, which statement and estimate shall serve as a basis of assessment by the city council for the ensuing year. Sec. 9. And whereas, It is the purpose of said ordinance that the trustees aforesaid shall guard the interest of the holders of said bonds as well as of said city; be it further ordained that the said board of trustees shall have the power, and it shall be their duty, to inspect at their discretion all books and accounts of officers or agents- of the city of St. Augustine any manner with the enforcement of any of the provisions of said ordinance, and to require reports from them, and to enforce the proper performance by said officers and agents of their duties in so far as they relate in any. wise to the rights and interests of the holders of said bonds, or to the faithful, just and proper administration of the funds collected and received by them for the payment of the principal or interest of the bonds. Sec. 10. For the additional protection of the holders of said bonds, and the speedier redemption thereof, be it further ordained, that upon the failure of the city of St. Augustine to meet any of the interest coupons or principal of said bonds within ninety days after maturity and demand of payment, then the entire electric light plant and all other public property of the city capable of yielding revenue shall be taken into possession and be operated and controlled under the direction of said trustees, and its successors, until the payment of all such moneys due upon said bonds, and the rents and proceeds, issues and profits thereof, after paying the necessary and legitimate expenses of operating the same, shall be by them turned over to the city treasurer on account of redemption fund for said bonds, to be applied to the payment of the principal and interest of same. Se,c. 11. That the finance committe of the city council shall be authorized and have full access to the books of the bond trustees during the construction and building of said electric plant, and examine books and bills and cost of material, etc.,.during the progress of said work, and make .a report and submit the same to the city council once a month until the plant is completed., then all subsequent reports shall be made by the secretary of the bond trustees and submitted to the council at the first regular meeting after the first day of each and every month, giving a complete and detailed report of all revenúes derived from said plant and also give amount of expenditures during said month, with the proper vouchers and bills paid, in duplicate. On April 26, 1899, appellants, with another as to whom the cause was subsequently dismissed, filed their bill in equity in the Circuit Court of St. Johns county against the city, its acting mayor and clerk, seeking to enjoin the issuance of the bonds. While this bill was pending the legislature enacted Chapter 4866, approved May 11, 1899, as follows: AN ACT to Legalize the Election Held on March 28th, 1899, in the City of St. Augustine, to Determine by a Vote of the Majority of the Qualified Voters of said City, Who Were Freeholders of said City Actually Voting Whether or Not the, Bonds Proposed by an Ordinance Entitled “An Ordinance Establishing an Electric Light Plant to be Owned and Operated by the City of St. Augustine, and to Provide for the Issue of Bonds for the Payment of Same,” Passed March 8th, 1899, and Approved March 9th, 1899, Should be Authorized and Issued, and to Declare and Render Valid Said Election and the Result as Shown by the Returns Thereof and to Declare and Render Valid Said Ordinance and to Authorize the Issue of Bonds as Provided by said Ordinance. Whereas, the authority is given by Chapter 4636 of the Laws of Florida to the city of St. Augustine to issue bonds for illuminating said city, and said city is further authorized to light the city and streets, avenues and public buildings with gas or other illuminating material; Provided, the issuance of the bonds proposed to be issued shall be provided for by ordinance expressing in exact terms the amount and purposes for which such issue of bonds are to be used and subsequently approved by a majo'riuty of the vote cast by the freeholders of said city who are qualified to vote as shown by the registration and tax books of said city; and, Whereas, An ordinance was duly passed March 8th, 1899, and approved March 9th, 1899, and was regularly published and became an ordinance of said city in the regular way, entitled “An Ordinance, Establishing an Electric Light Plant to be Owned and Operated by the city of St. Augustine., and to Provide for the Issue of Bonds for the Payment of same;” and Whereas, A proclamation was duly issued and published as provided by said ordinance calling an election which was held March 28th, 1899, resulting in a majority of the freeholders of said city who were qualified to vote as shown by the registration and tax books of said city, approving the issue of bonds as provided for in said ordinance; and, Whereas, It is important that no question should arise as to the validity of said ordinance, and of said election, or as to the validity of the bonds provided for in said ordinance and which may be issued in pursuance thereof, and of the said authority; therefore, Be it Enacted by the Legislature of the State of Florida: Section 1. That the said ordinance hereinbefore' mentioned and the said election held on the 28th day of March, 1899, in pursuance thereof, be and the same are hereby legalized and declared to be valid and binding in every respect. Sec. 2. The said city of St. Augustine is hereby authorized to proceed with the issuance of bonds to the-amount of $20,000, as provided in and by said ordinance, and in manner and form and in accordance with such ordinances hereafter passed not in conflict with-said ordinance, and the bonds of said city of St. Augustine issued in pursuance of such ordinance and such ordinance or ordinances as m-ay be passed in connection therewith, are hereby declared to be valid in manner, form' and effect as issued, and to be binding and to. have full force, virtue and effect in law and equity against the city of St. Augustine, the electric light plant and system of said-city, and the entire taxable property therein, and bind said city as aforesaid for the payment of the principal sum and interest theeron; Provided, That the said bond's shall not be sold below par and in contravention of said- ordinance authorizing their issue as to the amount of issue and time of payment. The fact that said bonds are to be payable in gold of standard weight and fineness shall not affect their vadility, and such contract is hereby declared to be valid and binding upon said city in accordance with the wording of said bonds. Sec. 3. The provisions of this act shall be construed remedial and curative of any defect or want of power upon the part of the municipality of the city of St. Augustine to pass, ordain and adopt said ordinance or to hold said election and conduct the same in the manner the same was held and conducted and declared the result, and to arrive at such results through the votes of those who voted at said election and hereby legalizes said ordinance and said election and said approval of the issuance of said bonds and said bonds which may be issued in pursuance of said ordinance, in so far as the constitution of the State of Flordia permits and the legislature has power. Sec. 4. All laws in conflict with this act are hereby repealed. Sec. 5. This act shall take effect immediately after its passage and approval by the Governor. Approved May 11, 1899. Thereafter, on June 20, 1899, the same complainants by leave of court filed an amended and supplemental bill in the cause against the same defendants, alleging that complainants were owners of large amounts of real and personal property situated in the city subject to taxation -by it; that a pretended election was held on March 28th, 1899, under the provisions of the ordinance of March 9th, and that according to- the-returns of said election one hundred and seventy-nine votes were cast, one hundred and fourteen approving and sixty-fiv-e disapproving the issue of bonds. Upon information and belief it was alleged that some twenty-five or thirty votes were cast by persons who were not freeholders of the city; that less than thirty of the persons voting had paid their poll taxes for 1898; that only four votes were cast by persons who had paid their poll tax for the two years next preceding the year in which the election was held on or before the,second Saturday of the month immediately preceding the election, and that none of the persons voting at the election were exempt from the payment of the poll tax.. It was further alleged that at the time the election was held the existing law of the State pertaining to the qualifications of electors in Stato and county elections, which by the city’s charter prescribed the qualifications of electors in all city elections except as to registration by the county Supervisor of registration, precribed that no person should be entitled to vote at any election who should have failed to pay at least on or before the second Saturday in the month preceding the day of such election his poll tax for the two years next preceding the year in which such election should be held, and further prescribed that only such persons who shall have paid such taxes shall be deemed qualified voters authorized to vote at any general, special or municipal .election; that the second Saturday of the month preceding the day of said election was February nth, 1899; that the ordinance of March 9th was passed in council on March 8th, first published on March nth, and first went into effect March 14th, 1899; that by its terms'it was impossible for the freeholders electors of the city to qualify themselves to vote at the election required to be held within seventeen days from the first publication of the ordinance, after the ordiñance was published and after proclamation of the proposed election; and that at the date of the election there existed no general ordinance prescribing the notice to be given for holding special elections except elections to fill vacancies in elective city offices, but by the laws of Florida, it was provided that notice of elections in the city was to be proclaimed by the mayor once a week for a period of four weeks prior thereto'; that the penalty prescribed by section 5 of the ordinance of March 9th deterred a large number of the freeholders of the city who desired to vote, at the election from offering to vote thereat; that a large number of freeholders of the city who were otherwise qualified electors thereof who desired to vote were deprived of that right by reason of the fact that they had failed to pay their poll taxes for 1897 and 1898 prior to February xr, 1899, before receiving any intimation that an election would be held prior to the annual June election, and that under the provisions of the existing law and by the terms of said ordinance they were wholly unable to become qualified electors by payment of such poll taxes after notice of' the election was had; that no provision was made by law or by ordinance of the said city to furnish any facilities or means whereby persons who were qualified to register as electors in the city of St. Augustine could become such registered electors for several months, to-wit: Nine months prior to the date of said pretended election of the twenty-eighth day of March, A. D. 1899, and thereby-many citizens of the said city who were otherwise qualified to- vote were deprived of the right to vote at the said election, their approval or disapproval of the said bonds; that the ordinance of March 9th did not provide in exact terms the amount of bonds proposed to be issued, nor the purpose for which they were to be used, as required by the- statute in such case provided; that the ordinance put no limit on the amount of bonds which could be issued thereunder; that the city was and is not authorized by law to construct and own an electric light plant for the purpose, of supplying the city and its citizens with light; that so much of the ordinance as pretends to authorize the issue of bonds for the erection and construction of an electrical light plant to supply the city and its citizens with light is unconstitutional on the ground that the ordinance prohibits the right of the city to supply light to inhabitants of the city who are not citizens thereof; that the ordinance is also void for the reason that certain of the bonds mentioned therein are to be paid in gold of' standard weight and fineness, and because, the city is not authorized by. any valid statute to issue bonds payable in gold of standard weight and fineness with or without the approval of the qualified electors and freeholders of the city; that the freeholders who are citizens- of St. Augustine own only about ten per cent, of the assessable property of the city, and pay only about ten per cent, of the total taxes assessed by the city; that the other nine-tenths of the assessable, property of the city is owned by persons not citizens of the city; that the total number of male persons above twenty-one years of age who are citizens of the city and qualified to vote at said election by reason of requisite age and citizenship is one thousand and upwards; that a great portion of them were not allowed to vote at said election by virtue of the law's of Florida and said ordinances, and that another large portion of said persons took no interest in the election and did not vote because, they regarded the election as illegal and void; that well knowing their acts are illegal the city council are about to turn over for sale bonds of the city to the amount of $20,000; that the issue and sale of said bonds will increase the burden of taxation on the property in the city; that the establishment of an electric light plant to be owned by the city is wholly unnecessary, there being an adequate supply of gas for all purposes of the city and its inhabitants by a gas plant owned by a private corporation; that the population of the city, about four thousand persons or less, is so small that the consumption of electric lights by the citizens, or even by the citizens and inhabitants of the city would be totally inadequate to produce a revenue to meet the expenses of the plant and the operation thereof and maintenance thereof by repairs and renewals; that the service performed by the gás plant to the city and its inhabitants is exceptionally good and cheap; that the erection of poles and stringing wires to operate an electric light system in the narrow' - streets of the city will greatly destroy the attractiveness of the city, deteriorate the value of the, property therein and greatly endanger the. property and the lives and limbs of the inhabitants ; that it is contrary to the best interests of the city for it to engagfe in dealing in electricity; that the issue and sale of said bonds and the establishment of an electric light plant with the proceeds thereof to be owned and operated by the city will unreasonably and illegally increase the burden of taxation upon the property in the city because the city is now obligated by a valid contract entered into between it and the St, Augustine Gas and Electric Light Co., a private corporation having a gas plant within the limits of the city, to take and pa3^ for the lighting of the streets and public places of the city until April 27, 1905. Upon information and belief it was alleged that, the city is bound by a valid existing contract entered into between the city and the St. Augustine Gas and Electric Light Co. to take and pay for at the rate of twenty dollars each per year, pa3^able monthly, two hundred and four street lamps now placed on its streets under contract with said company until April 27, 1905. It was further charged that complainants reasonably feared that for the city to erect and operate an electric light plant will be deemed by the St. Augustine Gas and Electric Light Co. an impairment of the existing charter and contract between the city and the company, and result in expensive, litigation and damages against the city in a large sum in case -the city attempts to furnish light for its public places; that if the city should refrain from furnishing light for its streets and public places prior to April, 1905, having constructed an electric light plant, complainants and other property owners of the. city will be unnecessarily und unreasonably taxed to pay the interest and for a sinking fund upon the bonds proposed to be issued, and at the same time be taxed to pay the amount du-e and to become due to the St. Augustine Gas and Electric Light Co. of over $4000 per year up to April, 1905, for lighting the city under the contract between the city and the company. It was further alleged that the whole matter of the issuance of said bonds has been on the part of the city council of said city characterized by unreasonable haste, concealment and flagrant disregard of the requirements of th-e law and the rights and liberties of the property owners, electors and inhabitants of the city of St. Augustine. That by statute of th-e State of Florida in case of a vacancy in the office of mayor of the city of St. Augustine occurring more than ninety days before an annual election, a special election is required to- be held to fill such office within thirty days from such occurrence; that the office of mayor of said city was vacated by the permanent removal of the former incumbent of the office of mayor, one F. B. Genovar, to the Island of Cuba early in the month of February, A. D. 1899; that such permanent removal was publicly announced more than ninety days before the annual election to be held in said city on the 20th day of June, A. D. 1899, anc^ Yet said city council, well knowing the requirement of said statute refused to hold said special election, such refusal being due, as alleged upon information and belief, to fear that the contemplated acts and doings of the city council in the matter of th-e issue of bonds would not receive the approval of the electors of the city; that by the terms of the statute in such case made and provided, the matter of th-e issuance of bonds of said defendant corporation is committed to the mayor and city council, subject to approval of the freeholders qualified to vote, but by design of the members of the, city council and at the instigation of interested parties, there has been no mayor of said city since the beginning of the matters hereinbefore set forth; that the acting mayor of said city has participated in all the acts of said city council and voted on all the ordinances and resolutions relating to said issue oi bonds, and' thereafter attempted to approve of such ordinances as the acting mayor of said defendant city; that said city council has, never had before it and considered the matter of whether or not the city of St. Augustine should erect, maintain and operate a system of electric lighting, either for furnishing light for illuminating said city and fighting the city and its streets and avenues (said city owning no public buildings), or whether or not said city enter upon the business of furnishing for hire to'the inhabtants of said municipality electric light or light and power; that there has never passed in the city council of said city a vote that it is expedient for said defendant city to exercise the right granted by law to cities and towns to construct, establish and maintain a plant for the. manufacture_ of electricity for municipal use, or for the use of such of its inhabitants as may require, and pay for electricity, or for both of such uses; that no such vote of said city council has been had and passed by a vote of two thirds of the members of said city council voting at a meeting duly called for that purpose; taken by written or printed ballot, and duly recorded; and no determination, had according to the provisioins of law above set forth, that it is expedient for the defendant city to enter upon the business of the manufacture and furnishing of electricity, has ever been satisfied by a majority of the voters at an annual or. special election called for that purpose, as required by law before said city is allowed to enter upon such commercial enterprise; that although the city council of said city are. about to issue the negotiated bonds of said city to the amount of twenty thousand dollars, and to turn the same over to certain persons styled in said ordinances “the Board of Bond Trustees of the City of St. Augustine,” to be sold, yet there never has been enacted any ordinance of said city directing how the proceeds from the sale of said bonds are to be used or expended, or how much thereof is to be expended; or providing for or directing the erection of an electric light plant; the purchase of machinery and appliances, and providing for the management and control thereof by the defendant city or its agents after the same shall have been established. On information and belief it was alleged that the city council intend to surrender the delegated public powers of said corporation to certain persons designated in the ordinances, “the Board of Bond Trustees” or “the Board of Bond Trustees for the Water Wprks System,” and ta transfer to said persons all its powers and duties connected with the matters provided for in the ordinance passed March 8th, 1899, whatever the same may be found to be,, and to leave it to said persons to discover , if so be they may, what is contemplated and required by said ordinance,; that such surrender is wholly illegal and void and beyond the power of said defendant city. That the said ordinances, in' so far as they or either of them attempt to surrender the public powers delegated to said corporation, are illegal and void; that such surrender of power is so interwoven and merged in the said ordinances, and in the submission to the vote of the freeholders that said' ordinances are wholly void and any issue óf bonds thereunder would be wholly illegal and void; that there is not now, and never has been any “Board of Bond Trustees” or any “Board of Bond Trustees for the Water Works System” as an office of the city of St Augustine; that there is and are no officer or officers of said city designated or styled “the Board of Bond Trustees” or “the Board of Bond Trustees for the Water Works System,” either de jure or de facto; that the actions of said defendant corporation in attempting to turn over to' persons not officers of said city, the issue of twenty thousand dollars of said city’s bonds and the proceeds from the sale thereof, is wholly illegal and void and will be an irreparable injury to complainants and to all persons owning property in said city; that by the form of said bonds ^s provided by ordinance of said city the same are made to recite that they are issued in strict conformity with the laws of the State of Florida, countersigned by the chairman, secretary and one member of the so-called “Board of Bond Trustees,” and by the terms of the ordinance, when so signed and sealed with “their seal” shall become payable to the lawful bearer thereof; that the city council has made a contract with a certain firm or corporation, called Walker, Evans and Cogswell, for the engraving and delivery of bonds in accordance with the form prescribed in said ordinance arid will, unless restrained by the injunction of this honorable court, forthwith have executed, delivered and sold negotiable bonds of said city to the amount of twenty thousand dollars, upon their face bearing the recitals set out many of which recitals are untrue and known to defendants to be untrue; that the said issue of twenty thousand dollars of bonds of said city is illegal and void as not authorized by any ordinance of said city, in that said bonds are made payable at a designated place- beyond the State of Florida, without the authority of law, and are made payable in gold coin of the United States of America, with the interest payable in like gold coin, without authority of law, and are directed to be issued and sold in amounts as the proceeds are needed to- pa)r for the improvements contemplated, although what the contemplated improvements are is wholly vague and has never been determined by the defendant city; that Chapter 4866 laws, approved May 11, 1899, is wholly ineffectual and inoperative to authorize, and empower the issue of bonds as contemplated; that in so far as it is legal and valid it does not authorize the city to proceed in the manner stated to Esue said bonds in the form proposed and provided for; that the title of said act does not set forth or embrace or refer to' aught, other than the ordinance of March 9th and the so-called election held thereunder; and said act is unconstitutional and void as special legislation in relation to the cit}'- of St. Augustine in a matter not pertaining- to its public rights and duties, but relating wholly to its rights in its semi-private character, passed without notice of intention to apply therefor; and is unconstitutional and void as an attempted legislative levy of a debt and charge upon the property of complainants, and all other property owners of said city of St. Augustine, and a levy of taxes by the, legislature in the city of St. Augustine and upon the property of its inhabitants and an attempted levy of taxes for purposes other than municipal; and to raise moneys to be expended by persons other than officers of said city, and as an attempt by the legislature to appoint officers and make contracts for said municipaltiy of St. Augustine, and is in effect an attempt by the State to deprive orators and others of their property without due process of law, and contrary to the constitution of the, United States; and is an attempt to authorize persons not officers of said municipal corporation to carry on business with the moneys raised from municipal taxation; and is unconstitutional and void as an attempt by the legislature to make valid and binding and a debt of said city, a contract for the payment of a large sum of money, not yet entered into; the preliminaries of which were void ab initio, and where said city had received no benefit under such initiatory contract; and said act is illegal and void, as controlled by the proviso of said act, that said bonds, the issue of which said act proposes to validate, shall not be sold in contravention of the ordinance, passed March 8th, 1899, as to the amount issue, while by the terms of said ordinance the amount of issue'was left to the future determination of certain persons not officers of said city; that said act is unconstitutional and void, in so far as it attempts to declare valid and legalize the election held on March 28th, 1899, aforesaid, and the result as shown by the returns therof, and to declare and render valid the said ordinance passed March 8th, 1899, and approved March. 9th, 1899, on the ground that the same is not within the scope of the power and authority of the legislature of Florida, under the constitution of the State of Florida, but within the exclusive jurisdiction, power and authority of the judicial department of the State of Florida, under the constitution of said State, and is void as an attempted assumption and usurpation of exclusively judicial functions, by the said legislature. The bill prayed for general relief and specially that defendants be perpetually enjoined from executing, issuing, selling or otherwise disposing of any of the bonds of the city under authority sought to be derived from the ordinance of March 9th, the election held thereunder or from the act of the legislature approved May 11, 1899, known as Chapter 4866, and from delivering to any persons to be sold and especially from delivering the same to the Board of Bond Trustees or the Board of Bond Trustees of the A'Vater AVorks System of the city and from surrendering to any person or persons not officers of the city any of the public powers and duties belonging to the city; that defendants by temporary in-, junction be so enjoined until further order of the court and especially until such time as a system of improvements to be carried out with the proceeds of the bonds shall have been determined by ordinance provided by the city and the proper officers and agents of the city for the management and control of the moneys and improvements shall have been provided for, elected and qualified. On May 24, 1899, the city council passed and the president of the council and acting mayor approved an ordinance as follows: AN ORDINANCE To' Authorize the Board of Bond Trustees of the City of St. Augustine to sell and providing for the delivery of the Electric Light Plant Bonds of the City of St. Augustine. Be it ordained by the Mayor and the City Council of' the City of St. Augustine. Section 1. That the Board of Bond Trustees are hereby authorized and directed to sell the entire issue of twenty thousand dollars ($20,000), of bonds recently authorized to be issued by the city of St. Augustine, and known as Electric Light Plant Bonds of the city of St. Augustine,, to be paid for and delivered at the following times and in the following amounts, or as near thereto as may be practicable: Ten thousand dollars ($10,000) on the first day of September, 1899, and the remainder in blocks of five thousand dollars ($5,000) on the first day of each month thereafter until the whole issue shall be delivered, sale to be made of the whole or of any part of said issue. Said, bonds shall be sold with the understanding and condition that interest thereon shall be paid only from the date of delivery to the purchaser, which fact shall be noted on coupons partially earned before delivery. The trustees shall reserve, the right after sale to deliver only so much of said bonds as may be by ordinance declared noessary for the purposes contemplated in the ordinance authorizing the issuance of said bonds, approved March 9th, 1899. Sec. 2. The Board of Bond Trustees of the city of St. Augustine are, hereby authorized to incur such reasonable expense as may be declared to be necessary by a majority of said trustees in and about the preparation and sale of said bonds, which expense shall be paid, upon approval by the city council. Thereafter on July 27, 1899, by leave of the court the, same complainants filed their supplemental bill of complaint in the cause against appellees which, after reference-to the original and amended and supplemental bills, alleged that on or about July 21, 1899, eighty bonds of an aggregate par value of $20,000, purporting to be executed by the mayor and city clerk, and by the president of the city council under and in pursuance of the, ordinance approved March 9, 1899, were delivered to the defendants Bartola Ge,novar, R. J. Oliver, Bernard Masters, A. L. Rogero and J. A. McGuire as the constitutent members of a body known as the Board of Bond Trustees of the City of St. Augustine, Florida, or some person acting in their behalf and for them, for disposition in conformity with the terms of the ordinance approved May 24, 1899; and upon information and belief it was alleged that said board of bond trustees have invited or are about to invite bids for said bonds and are proceeding to1 a sale thereof and will before September 1, 1899, if not sooner restrained, part with possession of the bonds in the hope of defeating complainants’ rights in the premises. The bill prayed that defendants be perpetually enjoined from issuing, selling or otherwise disposing of any bonds of the city by virtue of authority derived from the ordinance of March 9th, the election held March 28th or from the act of the legislature, Chapter 4866, approved May 11, 1899; that defendants be so enjoined until the further order of the, court and especially until such time as a system of improve^ ments to' be carried out with -the proceeds of the bonds shall have been determined by ordinance provided for by the city and the proper 'officers and agents of the city for the njanagement and control of the moneys and said improvements. shall have been provided for, elected and qualified, and that defendants be enjoined from delivering to any persons except upon the order of the court any of said bonds, and then only to be cancelled by the court, and especially from delivering to any person any of said bonds before September 1, 1899, except upon order of the court, and for general relief. The defendants filed their demurrer to the amended and supplemental bill and the supplemental bill, and the cause came on to be heard upon the demurrer and upon motion for temporary injunction. The parties introduced various matters of evidence upon the hearing of the motion, which it is not necessary to notice further. The court entered a final decree sustaining the demurrer and directing that the 'bills of complaint stand dismissed unless complainants should amend the 'bills to disclose a good cause of action on or before September 25, 1899. From this decree the complainants entered their appeal.
42 Fla. 328Campbell v. Kauffman Milling Co. (1900)
The following rule governing quasi estoppels by the election of inconsistent positions or remedies approved: “A party .cannot, either in the course of litigation or in dealings in pate occupy inconsistent positions. Upon that rule- election is founded. A man shall not be allowed to approbate and reprobate. And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts. The election, if made with knowledge of the facts, is in itself binding. It cannot be withdrawn without due consent- It cannot be withdrawn though it has not been acted upon by another by any change of position-”
42 Fla. 348Bonacker v. State ex rel. McFarlane (1900)
Writ of Error to the Circuit Court for Polk County. The facts in the case are stated in the opinion of the Court.
42 Fla. 356Simmons v. Bevill (1900)
Appellate Practice — Where Service is Made of Void Writ of Scire Facias ad Auddenduin Errores, and the Defendant in Error Does Not Appear, Writ of Error Dismissed. Where a scire facias ad amliendwm errores is made returnable to a day and term of the Appellate Court that had already passed at the date of the issuance of such writ, and the defendant in error served therewith has not subjected himself to the jurisdiction of the Appellate Court by any manner of appearance, such writ and the service thereof are nullities, and do not give to the Appellate Court jurisdiction over the person of such defendant in error, and the writ of error will be dismissed.
42 Fla. 358Atlantic, Suwannee River & Gulf Railway Co. v. State (1900)
1. Section s, Chapter 4205, Laws approved June 2, 1893, providing a remedy for enforcing compliance with the requirements of Section 1 of that act, authorizes the proceedings for that purpose to be instituted and conducted in equity. 2. The legislature, under the police rower, may, in proper cases, require railroad companies whose roads cross or meet each other to construct such switches, side tracks, and connections as will enable them to transport cars to and from each other’s lines. Such regulations do not amount to a takine- of the companies property, for which compensation must be provided. 3. In the absence of a showing that, as applied to a particular case, Section 1, Chapter 4205, Laws approved June 2, 1893, is an arbitrary or unreasonable regulation the court must assume tihat it is reasonable and consequently a valid regulation, passed in pursuance of the police power.
42 Fla. 362Banks v. Banks (1900)
The only foundation for an order for alimony, suit money, and counsel fees pendente lite is the fact of marriage between the parties; and where, at a hearing for such order upon bill filed by the alleged wife, there is no proof of the marriage or living together as husband and wife, except the allegations of an unsworn bill of complaint, while the defendant by affidavit specifically denies under oath that he was ever married to complainant, and that he ever lived with her as his wife, the court is not justified in making any order for alimony, suit money, and counsel fees pendente lite! or for the appointment of a master to ascertain and report sums of mon.e" to be allowed for those purposes, with power to take testimony in the premises.
42 Fla. 366County of Duval v. Knight (1900)
Writ of Error to the Circuit Court for Duval County. Statement.
42 Fla. 376Stubbs v. Franklin County Lumber Co. (1900)
The authority conferred by Section 1035, Rev. Stats., upon Clerks of the Circuit Courts to enter final judgments upon defaults, confines them to the entry of such final judgments in suits for money founded upon contract, written or verbal, and such clerks have no power to enter judgment upon a declaration or a count in a declaration in tort.
42 Fla. 378Varn v. Alderman (1900)
Where a county court is organized in a county as authorized by the constitution, such court has jurisdiction of a suit in that county to recover upon a written obligation for the payment of money, where the demand involved does not excee'd $500, and the Circuit Court of that county has no jurisdiction to entertain' original jurisdiction of that suit so long as the county court exists in that county, even though the cause of action sued upon accrued prior to the organization of the county court-
42 Fla. 383Jacksonville Terminal Co. v. State ex rel. Lamar (1900)
Appellate Practice — Dismissal Where All Adversity of Interests Settled Between Parties. Where a writ of error is taken by a party against whom a peremptory writ of mandamas has been awarded, and it is made to appear satisfactorily to the appellate court that subsequently to the granting of such peremptory writ the party for whose benefit such writ was awarded acquired by amicable purchase from the party against whom it was awarded all of the rights and privileges sought to be enforced by such writ, and had been amicably let into the possession and enjoyment of all such rights and privileges by reason of such purchase, irrespective of such mandatory writ, thus obliterating all adversity of interest between the parties, and leaving no further contested issue between them, such writ of error will be dismissed.
42 Fla. 385Cator v. Emanuel (1900)
Appeal from the Circuit Court for St. Johns Comity. The facts in the case are stated in the opinion of the , Court.
42 Fla. 386Strickland v. Louisville & Nashville Railioad Co. (1900)
Appellate Practice — Failure to File Abstracts of Record — Dismissal. Were there is a total failure to file abstracts of the record as provided for by rule 20 of this court, as adopted September 16, 189s, the writ of error will be dismissed.
42 Fla. 387Reynolds v. Florida Central & Peninsula Railroad (1900)
Statement. In November, 1892, appellee filed a bill aginst the then Comptroller of the State, William D. Bloxham, and John A. Pearce,… Held: on the appeal from the demurrer to the supplemental bill in the nature of a bill of review, that when the appellate court affirms the decree of the lower court orwhensuchdecree is modified on appeal, either as to questions of law or fact necessarily involved, with directions for further proceedings consistent with the opinion, the…
42 Fla. 462Capital City Light & Fuel Co. v. City of Tallahassee (1900)
Statement. The Tallahase,e Gas and Electric Light Company was incorporated in December, 1887, under the general incorporation laws then in force. In its articles of association it claimed power to sue and be sued,and to hold,lease, buy, sell, mortgage or otherwise dispose of such reality and personalty as might be necessary for the purposes therein stated.
42 Fla. 501State ex rel. Williams v. Bloxham (1900)
Proceedings by mandamus begun against the State Comptroller to compel him to audit and draw a.warrant upon the State Treasury to pay an account claimed by relator against the state, will be dismissed where the term of office of the official expires before final decision and his successor in office is not made a party defendant or notified to defend the proceedings.
42 Fla. 504Robeson v. First National Bank (1900)
Writ of error to the Circuit Court for Orange county. The facts in the case are stated in the opinion of the court.
42 Fla. 509Long v. State (1900)
Wvrit of Error to the Circuit Court for Orange county. The facts in the case are stated in the opinion of. the court.
42 Fla. 528Richard v. State (1900)
Writ of error to the Circuit Court for Bradford county. The facts irf the case are stated in the opinion of the court.
42 Fla. 546Knight v. State (1900)
Writ of Error to the Circuit Court for Alachua County. The facits in the case are stated in the opinion of the Court.
42 Fla. 553Gavin v. State (1900)
Writ of Error to the Circuit Court for Wakulla County. The facts of the case, are stated in the opinion of the Court.
42 Fla. 560Penton v. State (1900)
Writ of Error to the Circuit Court for Santa Rosa County. The facts in the case are stated in the opinion of the Court.
42 Fla. 562Hogan v. State (1900)
Writ of Error to the Criminal Court of Record for Duval County. The facts in the case are stated in the opinion of the court.
42 Fla. 567Craft v. State (1900)
Criminal Law — Perjury Committed Before Grand Jury — Indictment For. 1. An investigation by a grand jury of a crime that is within its jurisdiction to investigate and to indict for is a judicial proceeding in a court of justice, and perjury committed before them in such an investigation falls within that phase of the crime provided for by section 2561 of the Florida Revised Statutes. 2. In an indictment for perjury it is an essential allegation that the party charged was duly sworn, and that the oath was administered to him by some one authorized .by law to administer such oath.
42 Fla. 573Higginbotham v. State (1900)
Writ of Error to the Circuit Court for Marion county. The facts of the case are stated in the opinion of the Court.
42 Fla. 581Kennard v. State (1900)
1. As a general rule a witness must depose to facts within his knowledge, and can not testify to matters of mere conjecture; but where a witness has knowledge of pertinent facts and speaks from a recollection of them as they actually appeared to him, though his impression may not amount to positive assurance, it is competent to be considered by the jury. 2. In lawfully defending himself a man may take life when as a reasonably prudent person he has reasonable ground to apprehend a design to commit a felony on him or to do him some great personal injury and there shall be imminent danger of such design being accomplished, though as a matter of fact there was no actual danger; but if he wrongfully occasions or brings about the necessity for his action, though as a prudent man he may have reasonable ground to apprehend a design to commit a felony on him or to do him some serious personal injury and there be imminent danger of such design being accomplished, he can not lawfully kill and justify his conduct on the ground of self-defence. 3. An objection to a portion of a charge stating an abstract proposition of law on the ground that it is misleading may be removed by another portion covering the ground so fully as to leave no room for a misdirection of the jury. 4. The mere statement in a motion for a new trial that the prosecuting officer made a certain statement to the jury, where the motion is overruled without a certificate from the judge that such statement was made, affords no evidence of the existence of such fact. 3. It is proper for the trial court in charging the jury to confine a principle of law applicable to the case to the facts disclosed by the evidence. 6. In considering an objection to a portion of a charge the entire portion bearing on the subject may be considered, and if the objection be removed when the entire portion is taken together, there is no ground of complaint. 7. When the substance of requested charges has been fully given in instructions, it is not error to refuse to repeat the instructions, though expressed in different language. 8. A requested instruction for an acquittal predicated upon an isolated fact, or only part of the evidence that is not conclusive of the merits of the case, is properly refused.
42 Fla. 591Stewart v. State (1900)
1. The acts and conduct of a witness relative to the matters in controversy which are inconsistent with his testimony, likewise his motives, interest or animus as connected with the cause or with the parties thereto, may be oroved for the purpose of weakening the force of his testimony; and for the same purpose it is proper to admit evidence of statements made by the witness relative to matters material to the issues contradictory of his testimony on the trial. As to all of these matters, if the witness denies or fails to admit the imputed act, conduct, motive, interest, animus or contradictory statement when interrogated about them on cross-examination he may be contradicted by other testimony proving them. 2. The answer of a witness on cross-examination respecting any fact irrelevant to the issue will be conclusive, and no question relating to facts irrelevent to the issue can be put on cross examination merely for the purpose of impeaching the credit of the witness by contradicting him.
42 Fla. 595Lang v. State (1900)
Writ of Error to tine Circuit Court for Nassau County. The facts in the case are stated in tihe opinion of the Court.
42 Fla. 603Mitchell v. State (1900)
Writ of Error to' the Criminal Court of Record for Duval County. The facts in the case are stated in the opinion of the Court.
42 Fla. 605Smith v. State (1900)
Writ of Error to the Circuit Court for Leon County. The facts in the case are stated in; the opinion of the Court.
42 Fla. 607Ex parte Gainey v. State (1900)
HABEAS CORPUS — BAIL IN HOMICIDE. Section g of the declaration of rights in the Florida constitution of 1885, provides that “all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great.” Where in a proceeding by habeas corpus brought by a party charged with murder in the first degree to test his right to bail, it appears from the evidence that there is only a “probability” of the guilt of the accused, he is entitled to bail.
42 Fla. 610Craft v. State (1900)
1. Where a person convicted of a felony and sentenced to a term of imprisonment in the state prison and to pay the costs of prosecution, but against whom no fine is adjudged, sues out a writ of error to review such judgment, and upon proof made as provided by section 2977, Revised Statutes, the trial court makes an order that plaintiff in error be relieved from payment of all costs in the cause, such writ of error operates as a supersedeas to the execution of the judgment, upon plaintiff in error remaining in the custody of the sheriff of the court passing the sentence. 2. Where it is made to appear to the Supreme 'Court that a person convicted of a felony and sentenced to a term of imprisonment in the state prison is undergoing execution of such sentence, notwithstanding the pendency in said court of a writ of error to review such judgment, and the performance of all things necessary to cause said writ of error to operate as a superseadeas upon such person remaining in the custody of the sheriff of the court passing the sentence as provided by section 2977, Revised Statutes, the Supreme Court is authorized to require and will require the Commissioner of Agriculture and the contractor for State convicts having such person in custody to deliver him to the sheriff of the court passing the sentence, to be held in the custody of such sheriff during the pendency of the writ of error or until released as provided .by law.
42 Fla. 612Long v. State (1900)
Writ of Error to the Circuit Court for Jackson County. The facts in the case are stated in the opinion of the Court.
42 Fla. 616Baer v. Johnson (1900)
42 Fla. 616Bennett v. Cutting (1900)
42 Fla. 617Bennett v. Tropical Land Co. (1900)
42 Fla. 618Bushnell v. Chipley (1900)
42 Fla. 618Campbell v. Crosby (1900)
42 Fla. 619Carmichael v. Poughkeepsie Glass Works (1900)
42 Fla. 620City of Tampa v. Lawrence (1900)
42 Fla. 620Feinberg v. Feder (1900)
42 Fla. 621Halle v. Einstein (1900)
42 Fla. 621Gregory v. Neal (1900)
42 Fla. 622Hammond v. Spaulding (1900)
42 Fla. 623Hartshorn Phosphate & Mining Co. v. Hartshorn (1900)
42 Fla. 623Hendry v. Pebble Phosphate Co. (1900)
42 Fla. 624Hull v. Hackett (1900)
42 Fla. 624Hewitt v. State (1900)
42 Fla. 625Keen v. Brown (1900)
42 Fla. 626Kirk v. Sheppard (1900)
Appeal from Circuit Court Escambia county; William D. Barnes, Judge.
42 Fla. 627Louisville & Nashville Railroad v. Wells (1900)
42 Fla. 628McCallum v. Gee (1900)
42 Fla. 628Miles v. White (1900)
42 Fla. 629Morgan v. Brown (1900)
Appeal from Circuit Court, DeSoto county; Barron Phillips, Judge).
42 Fla. 630Rushing v. Reed (1900)
42 Fla. 630Van Espen v. Buttgenbach (1900)
42 Fla. 631Wilson v. Kirk (1900)
Writ of error to Circuit Court, Hernando county; William A. Hocker, Judge.
42 Fla. 632Weston v. Bonney (1900)
42 Fla. 633Wilson v. Kirk (1900)
42 Fla. 634Pickett v. Russell (1900)
(The following dissenting opinion was inadvertently omitted from its proper place; it should have followed the opinion of the court on page 141. — Reporter.)