Although the persons named in the act as City Commissioners for the first four years may be in every way qualified for their official duties and precisely the men whom the citizens of the community, if they had been allowed to, would have selected for these positions, I cannot think that the action of the legislature in providing that the governing body of the city of Hollywood for the first four years of its corporate existence should consist of persons appointed by the legislature and named in the act, all vacancies occurring to be filled by the remaining members of such board, is a legitimate exercise of legislative power. The exact question here presented seems to be a new one in this State, and is not free from difficulty.

While the legislature could no doubt, as an incident to *Page 199 its legislative power, name and appoint the members of the governing board to act temporarily until such reasonable and convenient time as might be required for the primary organization of the municipality, and the selection by the qualified voters thereof of the members of such governing body who were to hold for the first full term, I am inclined to the opinion that it cannot go beyond the field of legislative power and control through its agents the administration and government of a town or city of this State for so long a period as four years, thus depriving the city of all voice, for that considerable period of time, in the selection its own governing officials Even if a local community of this State has no inherent right of local self-government which the legislature is bound to respect, it would appear that the legislature cannot exercise the executive and governmental functions of a town or city, under our constitution; either directly or through the agency of persons selected and appointed by it. Our constitution divides the powers of government into three grand divisions — the legislative, executive and judicial — and expressly prohibits either of these departments from exercising any power belonging to either of the others. If the legislature has the power to govern a city through its appointed agents for four years, it may also do so for ten years, or indefinitely. The writer realizes that the authorities are divided on this question, but inclines to the view expressed in those decisions which hold that this is not a legitimate exercise of legislative power. See 12 C. J. 836-8, and cases cited: 1 McQuillan Munic. Corp. 399-403.

The City Commission appointed by the legislature in this instance is vested with the usual power to levy taxes, require the payment of business and occupational licenses, and expend the monies of the municipality. Thus the citizens of the municipality must endure taxation without *Page 200 representation for a period of four years. If the legislature could do this in this instance, can it not deprive every town and city in this State of every vestige of local self-government, and impose upon them the rule of governing bodies in whose selection they have no voice — a principle utterly at variance to American history, traditions and ideals of government.

I fully realize that Section 8 of Article VIII of the Constitution of 1885 gave the legislature very broad powers "to establish and abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time;" but all these powers are granted with reference to "municipalities," and, according to a sound and well accepted rule of constitutional construction, this word must be interpreted to mean what it was understood to mean by the makers of the constitution — it must be interpreted in the light of the commonly accepted meaning of the word "municipality" at the time the constitution was adopted. And in arriving at this, it is permissible to consider the previous history of our State and country and of our race of people; their conception of what a municipality was; as well as in the light of actual conditions existing when this constitution was framed. Applying these rules, there can be no doubt that the makers of the constitution had in mind, when using this word, municipal corporations with certain powers of local self-government, among them the power of selection of their governing body, which were and had been for centuries an essential feature of municipal corporations of this country, including Florida, and in the British Isles, from whence so many of our ancestors came. Even the dictionary definition of the word "municipality" embrace the feature of local self-government as a distinguishing one. *Page 201

If this be true, could the constitution makers, when they vested in the legislature the power to create a municipality, prescribe its form of government, etc., have meant or intended that the legislature should have the power to create and prescribe any form of city government, any sort of legislative oligarchy, entirely irresponsible to and beyond the influence of the people most intimately concerned, and call that a municipality within the meaning of the constitution? Could the legislature thus "speak the word of promise to the ear and break it to our hope?" My thought is that no matter by what name it may be called, a city or town that has no powers of local self-government, that has no power to elect its own governing body, who are to administer its local affairs, which primarily concern the people of that particular community, is not a municipal corporation as that term has been understood in America and among Anglo-Saxon peoples anywhere in the world for many centuries. It may be an agency or department of the State government for local administration, but it is not a municipality. The shell may be there, but the soul is gone. The makers of the Constitution of 1885 were the descendants of men who had shed their blood in defense of their conception of the right to local self-government; they were acquainted with the history of our people, and our constitution as a whole assumes the existence of this right, while not expressly protecting it except as to county government, and except also, possibly, in a general way, by the first two sections of the Bill of Rights, which assert that "all men are equal before the law and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and obtaining safety;" and "all political power is inherent in the people;" and again, "this enunciation of rights shall not *Page 202 be construed to impair or deny others retained by the people."

Permit me to quote certain paragraphs from the opinion of Mr. Justice Cooley, one of the great writers on constitutional principles, in the case of People v. Hurlbut, 24 Mich. 44: "If we look into the several state constitutions to see what verbal restrictions have heretofore been placed upon legislative authority in this regard, we shall find them very few and simple. We have taken great pains to surround the life, liberty, and property of the individual with guaranties, but we have not, as a general thing, guarded local government with similar protections. We must assume either an intention that the legislative control should be constant and absolute, or, on the other hand, that there are certain fundamental principles in our general framework of government, which are within the contemplation of the people when they agree upon the written character, subject to which the delegations of authority to the several departments of government have been made. That this last is the case, appears to me too plain for serious controversy. The implied restrictions upon the power of the legislature, as regards local government, though their limits may not be so plainly defined as express provisions might have made them, are nevertheless equally imperative in character, and whenever we find ourselves clearly within them, we have no alternative but to bow to their authority. The Constitution has been framed with these restrictions in view, and we should fall into the grossest absurdities if we undertook to construe that instrument on a critical examination of the terms employed, while shutting our eyes to all other considerations.

"The circumstances from which these implications arise are:First, that the Constitution has been adopted in view of a system of local government, well understood and tolerably *Page 203 uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon, that system.

"DeTocqueville speaks of our system of local government as the American system, and contrasts it forcibly with the French idea of centralization, under the influence of which constitutional freedom has hitherto proved impossible. Democracy in America, chapter 5. Lieber makes the same comparison, and shows that a centralized government, though by representatives freely chosen, must be despotic, as any other form of centralization necessarily is. 'Self-government,' he says, 'means everything for the people and by the people, considered as the totality of organic institutions, constantly evolving in their character as all organic life is; but not a dictatorial multitude. Dictating is the rule of the army, not of liberty; it is the destruction of individuality.' Civil Liberty and Self-Government. chap. 21. * * *

"It is not the accepted theory that the states have received delegations of power from independent towns; but the theory is, on the other hand, that the state governments precede the local, create the latter at discretion, and endow them with corporate life. But, historically, it is as difficult to prove this theory as it would be to demonstrate that the origin of government is in compact, or that title to property comes from occupancy. The historical fact is, that local governments universally, in this country, were either simultaneous with, or preceded, the more central authority.

* * * * * * *

"Such are the historical facts regarding local government *Page 204 in America. Our traditions, practice and expectations have all been in one direction. And when we go beyond the general view to inquire into the details of authority, we find that it has included the power to choose in some form the persons who are to administer the local regulations. Instances to the contrary, except where the power to be administered was properly a state power, have been purely exceptional. * * *

"In view of these historical facts, and of these general principles, the question recurs whether our state constitution can be so construed as to confer upon the legislature the power to appoint, for the municipalities, the officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is no provision requiring the legislative interference to be upon any general system, it can and may be partial and purely arbitrary. As there is nothing requiring the persons appointed to be citizens of the locality, they can and may be sent in from abroad, and it is not a remote possibility that self-government of towns may make way for a government by such influences as can force themselves upon the legislative notice at Lansing. As the municipal corporation will have no control, except such as the state may voluntarily give it, as regards the taxes to be levied, the buildings to be constructed, the pavements to be laid, and the conveniences to be supplied, it is inevitable that parties, from mere personal considerations, shall seek the offices, and endeavor to secure from the appointing body, whose members in general are not to feel the burden, a compensation such as would not be awarded by the people, who must bear it, though the chief tie binding them to the interests of the people governed might be the salaries paid on the one and drawn on the other. * * * * * * * *Page 205 All these things are not only possible, but entirely within the range of probability, if the positions assumed on behalf of the state are tenable. * * * "The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other; but if it were sought to establish such a government over our cities by law, it would hardly do to call upon a protesting people to show where in the constitution the power to establish it was prohibited; it would be necessary, on the other hand, to point out to them where and by what unguarded words the power had been conferred. Some things are too plain to be written. If this charter of state government which we call a constitution, were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests, the precepts which have come from the revolutions which overturned tyrannies, the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legislature at a distance to do so, — if a recognition of all these were to be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expressions, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give, — this living and breathing spirit, which supplies the interpretation of the words of the written charter, would be utterly lost and gone. * * * *Page 206

"The state may mould local institutions according to its views of policy or expediency; but local government is a matter of absolute right; and the state cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs or no control at all.

"What I say here is with the utmost respect and deference to the legislative department; even though the task I am called upon to perform is to give reasons why a blow aimed at the foundation of our structure of liberty should be warded off. Nevertheless, when the state reaches out and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exercised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free government, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the punishment of kings and the overthrow of dynasties, nothing was settled and nothing established."

Even under the iron rule of Rome, the cities of the Roman Empire were granted a certain measure of local self-government. And in England, and the British Isles generally, the right of local self-government of cities, boroughs and towns, were secured and built up as early as the days of Alfred, proving to be one of the bulwarks of liberty in that country, and it was not until the 15th century that the practice of granting charters to cities was inaugurated. These charters *Page 207 were not so much a grant of new powers as they were a recognition and guaranty of the rights of local self-government which had long existed.

By the Great Charter, King John was required to confirm some of the charters granted during his reign, and section 16 of the Magna Charta reads as follows: "And the city of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore, we will and grant that all other cities and boroughs and towns and ports shall have all their liberties and free customs."

Municipal local self-government is, as Judge Cooley has tersely said, "of common law origin, and having no less than common-law franchises." Our State, long before the constitution of 1885 was framed, had formally adopted the English common-law where not inconsistent with our own legal system.

Is not this time-honored right of the people of municipal corporations to choose their own local officers one of the rights retained by the people under section 24 of our Declaration of Rights? Nowhere does our constitution expressly confer the power upon the legislature to take away this right, nor is the right of local self-government anywhere forbidden by that instrument; and the framers of the constitution must have contemplated that the then existing right of municipal corporations to choose their local officers to administer their local affairs, would continue as the one great essential feature of municipalities in this State.

I realize that the views hereinabove expressed are those of the minority (though that minority contains such names as Cooley, Gray and McQuillin) and that the weight of authority in this country supports the views expressed in the able opinion of Mr. JUSTICE WHITFIELD. There is, however, one pronouncement by this court, in the case of *Page 208 Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697, which leans toward the construction I contend for. In that case, this court, speaking through MR. JUSTICE ELLIS, said: "It is unnecessary to discuss the question of whether a municipality is a political agency or subdivision of the State and in its activities acts always in a governmental capacity. While the drift of judicial thought, as tested by many decisions, seems to be toward the opinion that a city has no inherent right to local self-government and is a mere agency of the state to be governed and controlled by the legislature even through its own agents or appointees, and that view finds some color in the language of our constitution, * * * this court has consistently adhered to the doctrine of municipal liberty in the administration of local affairs."

While invasions of the right of municipal local selfgovernment on the part of the legislatures have been comparatively few in this country up to the present time, these experiments have, in many instances, resulted disastrously and have proven that it is dangerous to depart from this time-tested principle which has grown with our growth and has become, as it were, a part of the brawn and sinew of the American system of government.

The authorities on this subject will be found collated and reviewed in the able briefs filed in this case, and also in Vol. 1, McQuillin Munic. Corp., pp. 107, 141, 153, 240, 376 to 407; Vol. 1, Dillon Munic. Corp. (5th Ed.), pp. 154-181; 28 Cyc., 282-286, 291-6; Cooley Const. Lim. 225; 12 C. J. 754.

For the reasons above pointed out, I think the demurrer of the relator to the answer of the respondent should be sustained. *Page 209