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MEMORANDUM OF LAI


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ISSUES:

1. Is a local law constitutional when that law requires

the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public

corporation, to convey to certain landowners "unused"

portions of easements on property abutting Haines Creek,

all in Lake County, Florida, which easements were previously

donated by these landowners to the Oklawaha Basin Recreatior

and Water Conservation and Control Authority and which

easements were later transferred to the SOUTHWEST FLORIDA

WATER MANAGEMENT DISTRICT?

2. Is a local law void which purports to require the SOUTH-

WEST FLORIDA WATER MANAGEMENT DISTRICT to convey certain

easements in public lands to private individuals, when in

the title of that local law there is no mention of the

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT?

3. Is a local law so vague as to be unconstitutional when that

law creates an estate in land known as a "joint usership,"

and which law also attempts to provide a method for

abutting property owners to acquire unused portions of

donated easements, a boundary of said easements being the


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"bank" of Haines Creek, when the term "bank" is defined

nowhere in the statute?

1. The first question should be answered in the negative.

The Florida Constitution of 1968, Article III, Section II (a) (10),

prohibits the legislature from enacting any "special law or general

law of local application pertaining to disposal of public property,

including any interest therein, for private purposes."

Senate Bill 1638, which was passed by the Legislature on June 4,

1971, and became a law without the governor's signature, is a local

law dealing with lands only in Lake County, Florida. It requires

the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, owner of easements

in public property, to convey to certain private landowners, upon

demand, these easements which had previously been donated as public

* property. That is, this law attempts to require the District to

dispose of public property for private purposes, thereby violating

Article III, Section II (a) (10).

Generally, courts construe constitutional language according to

its surface meaning. It appears that the provision in Article III,

Section II (a) (10), is clear on its face. However,

"The fundamental object to be sought in construing a
constitutional provision is to ascertain the intent of
the framers and the provision must be construed or
interpreted in such manner as to fulfill the intent of
the people, never to defeat it." Gray v. Bryant, 125
So. 2d 846 (underscoring supplied).

A recent Florida Supreme Court case, Hawek v. Lee County, 231

So. 2d 214 (Fla. 1970), placed great reliance on the minutes of the







Constitution Revision Commission. An examination of the pertinent

portions of these minutes (copy attached) reveals that the Revision

- Commission intended Article III, Section II (a) (10) to prohibit all

special acts that attempt to dispose of public property, and Senate

Bill 1638 represents the type of legislation that the members of the

Constitutional Revision Commission sought to prohibit.

For example:

Mr. Friday, p. 196-197, "This would absolutely prohibit

any local legislation relating to the disposal of public

property..... you have certain limitations upon how you

can go about disposing of public property anyway by

general law."
and, Mr. Taylor, p. 198 "......somebody should explain to

the Commission what the purpose of this was. Where the

State Road Department or the Forestry Department, or some

other state agency has land in a certain county, it is a

state asset and should be handled as a state asset, rather

than disposed of according to a local law by some local

situation, to meet some local situation that might not be

to the interest of the state as a whole........

purpose (is) to require that there be a general procedure

for the disposal of borrow pits, excess right-of-ways,

anything of that sort that the state might own in the county

rather than leaving it to local legislature."





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2. This question must be answered in the affirmative

The Florida Constitution of 1968, Article III, Section 6,

provides that-the subject of every law shall be briefly expressed

in the title. This constitutional provision was intended to require

that the general nature and substance of the content of the body of a

statute be apparent to one who reads the title. County of Hillsborough

V. Price, 149 So. 2d 912. This provision prevents surprise or fraud

on the legislators and on the people that might result from provisions

hidden in the body of the statute and not indicated by its title. It

is to insure that sufficient information appears in the title to a

statute to put interested persons on notice or inquiry as to its

contents. State v. Florida State Turnpike Authority, 80 So. 2d 337;

State ex rel. Parrish v. Lee, 23 So. 2d 731.

The title to Senate Bill 1638 reads as follows:

"A bill to be entitled An Act relating to Lake County;

providing for a description of the center line of Haines

Creek; providing method for abutting property owners to
acquire unused portions of donated easements; providing

for a joint user-ship maintenance and spoil area; pro-

viding this act not applicable to dams, spillways or the

approaches thereto owned by a public body; providing an

effective date."

First, the nature and substance of the body of the statute

is to require the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, upon

demand, to convey permanent easements in public lands to private

'- individuals. There is no mention of the SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT in the title and the statute fails in this respect,

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Secondly, the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,

~- certainly aninterested person, is not put on notice or inquiry by

the title of the statute because there is no mention of the SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT in the title. The only interested

parties put on notice are abutting property owners on Haines Creek.

3. This question must be answered in the affirmative.

Statutues which are too vague to be intelligible are a

nullity. In order to be valid a statute or law must be definite

and certain. Brock v. Hardie, 154 So. 691; Bayou Barber College, Inc.

~ v. Mincey, 193 So. 2d 610.

Examination of Senate Bill 1638 discloses at least two

areas in which the law is so vague as to be unconstitutional.

SIn Section 2 of the law, it is provided that the "SOUTH-

WEST FLORIDA WATER MANAGEMENT DISTRICT shall quitclaim unto said

abutting owners all portions of such easements or deeds in excess of

from the center line of the main channel of Haines Creek, located in

Lake County, Florida, to the bank of said Haines Creek........"

There is nothing in the statute to define where and what the bank is,

or whether it is to include certain walls built along the river.
Even common usage of the term does not help when consideration is

given to the raising and lowering of water levels due to seasonal

rains and the operation of certain control structures along Haines

Creek, thereby actually changing the location or extent of the

referred to "bank."











Also, the statute attempts to create an estate in land

referred to as a "joint usership." This estate is not familiar to

Florida jurisprudence and the rights of the parties in and to this

estate are uncertain and vague.

The statute attempts to give the SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT the right to use a ten foot strip of this land

as a maintenance and spoil area, provided it is done "in a manner

which will minimize damage and use to the property and to the property

owners and in a manner not inconsistent with the use to which the

property is being put."

This statute, then, appears to give the SOUTHWEST FLORIDA

WATER MANAGEMENT DISTRICT the use of the land for a spoil area, but

then takes this use away if this would be inconsistent with the use

of the property by the fee owner. Almost any use by the SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, for the purposes it desires, would

be foreclosed by this statute, and just what the District can use this

land for is not clear due to the "inconsistent" provision.