"certificates of indebtedness ... are payable as to both principal and interest solely out of a special fund to be created ... out of the net earnings" At 13
How later courts described this case
- "certificates of indebtedness ... are payable as to both principal and interest solely out of a special fund to be created ... out of the net earnings" At 13
Written by the judges who cited it.
The opinion
Section 6 of Article IX of the Florida Constitution as amended in 1930 contains the following:
"Municipalities of the State of Florida shall have power to issue bonds only after the same shall have been approved by a majority of the votes cast at an election in which a majority of the freeholders who are qualified electors residing in such * * * municipalities shall participate."
The provision is organic and has direct and express reference to "vote cast" in an "election" by qualified freeholder electors and not to votes attempted to be cast, but which votes are so marked as not to be entitled to be counted as "votes cast" in the "election" upon the question at issue.
A legally qualified voter who attempts to vote but fails to properly mark the ballot deposited or released by him or her so that it may legally be counted for or against the matter at issue, should not be permitted to again attempt to vote because the law does not contemplate a second attempt to vote at the same election, but such futile or abortive *Page 67
attempt to vote is not a participation in the "votes cast" in the "election" as is mandatorily required by Section 6, Article IX, as quoted above. A blank or improper vote is not among the "votes cast" in the "election" within the purpose and meaning of the quoted section of the Constitution.
In order to have a valid election, the quoted section of the Constitution mandatorily requires "a majority of the freeholders who are qualified electors residing in such municipality," to vote at the "election," and that "a majority of the votes cast" shall determine the result. Only qualified freeholder electors are allowed to vote at such an election.
The fundamental purpose of the constitutional requirement is that a majority of the qualified freeholder electors residing in the municipality shall cast at the election, votes which legally should be counted either for or against approving the issuance of bonds, and that when such a majority have cast votes which should be counted, "a majority of the votes cast," shall determine the issue for which the election was held. The one hundred and seventy-seven blank or defective votes improperly cast which could not legally be counted either for or against approving the bond issue, should not be counted in determining whether a majority of the qualified freeholder electors residing in the municipality did legally "cast votes" in the "election," as required by the imperative provisions of the quoted section of the Constitution which was designed to protect the citizens in the process of issuing evidences of public indebtedness. See County of Leon v. State, 122 Fla. 505 , 165 So. 666 .
Those whose property is covered by the ordinance and is located outside of the city limits are "required" to connect with the sewer system, and the charges therefor may *Page 68 be enforced and are to be used in paying the certificates of indebtedness, though such certificates are issued as obligations of the city only; and as there was no approving election held beyond the city limits, the issuance of the certificates which are in effect bonds, and the "required" burden and continuing charge expressly imposed for sewer connection and service, such charges to be used in paying the certificates which are in legal effect bonds, without an approving election in such territory, necessarily operate as an indirect but very material violation of amended Section 6, Article IX of the Constitution, as to the area beyond the city limits.
The sewer connections into private property become a part of the realty. The private property may be adjudged a nuisance for failure of the owners to make and maintain the sewer connections, Section 3 of Ordinance No. 686A the charges for the sewer connections and use may be enforced and are to be used to pay certificates that are in effect thirty year bonds to be issued without an approving election in the area outside the city limits. This violates Section 6, Article IX of the Constitution. See Williams v. Town of Dunnellon, 125 Fla. 114 , 169 So. 631 ; Kathleen Citrus Land Co. v. City of Lakeland, 124 Fla. 659 , 169 So. 356 ; Boykin v. Town of River Junction, 121 Fla. 902 , 164 So. 558 .