#### CHARLES v. CITY OF MIAMI et al.

Supreme Court of Florida.

Aug. 3, 1936.

Franklin Parson, of Miami, for appellant.

J. W. Watson, Jr., of Miami, for appel-lees.

DAVIS, Justice.

Chapter 17176, Acts 1935, is a general law having special application at this time to the city of Miami. It confers authority on municipalities within its terms to construct public works projects, accept federal grants of money in aid thereof, and otherwise to borrow money and issue bonds and municipal obligations to finance the con*590struction of such public works projects as may be undertaken.

Acting pursuant to the authority of the statute above cited, the city of Miami proposes to construct a public works project in said city known as “Miami Field Stadium” to replace a stadium now owned and operated by it as a revenue producing project. To finance the project so undertaken the city attempted to issue $162,000 “Stadium Revenue Certificates” to be payable solely from revenues derived from the operation of the stadium to be constructed with the proceeds of their sale. The certificates are especially provided to be payable solely and only from the revenue and income derived from the operation of the stadium and do not constitute a charge, lien, or encumbrance, legal or equitable, upon any property of the fcity of Miami “other than upon the aforesaid revenues and income.”

The certificates are specifically made immune, by a contractual provision therein contained, from any efforts or attempts of holders thereof to compel any exercise of the taxing power of the city to pay the certificates or the interest thereon. It is likewise provided that the certificates, which are in similitude to ordinary bonds, cannot be enforced against any property of the obligor, city of Miami.

No approving vote of the qualified freeholder electors in favor of the issuance in accordance with section 6 of article 9 of the Constitution, as amended in 1930, has been had.

So the proposition required to be decided on this appeal, in so far as amended section 6 of article 9 is concerned, is whether or not a municipality may lawfully fund and pledge the anticipated future rents, issues, and profits of one of its real estate holdings, such as a municipal stadium operated as a revenue producing project of the city in the past, as security for a loan of money proposed to be procured by it on the strength of a pledge 'thereof to the lender.

We think that the holdings of this court in the cases pf Sholtz v. McCord, 112 Fla. 248, 150 So. 234; Herbert v. Thursby, 112 Fla. 826, 151 So. 385, and Brash v. State Tuberculosis Board, 167 So. 827 (opinion filed April 24, 1936), render the issuance of such certificates of indebtedness as are contemplated to be issued by. the city of Miami in this instance invalid unless the same are duly approved by a majority of the freeholders voting in an election in which a majority of them shall participate, as required by amended section 6 of article 9 of the State Constitution.

A lien upon rents, issues, and profits derived from the real estate owned by a municipality, and its taxpayers, is within the purview of amended section 6 of article 9 of the Constitution when created to secure repayment of a loan of money. And under amended section 6 of article 9 of the Constitution, absent a vote of the freeholders authorizing it, such lien is as much objectionable to the intendments of the Constitution as a direct lien upon the property itself given .for the same purpose. The latter, we havei.held -in the cases above cited, cannot be validly created absent the required election and approving voice of the freeholders.

The contention that chapter 17176, Acts 1935, is violative of sections 20 and 21 of article 3 of the State Constitution is without merit and was properly overruled in the circuit court. State ex rel. Buford, Atty. Gen., v. Daniel, 87 Fla. 270, 99 So. 804; Givens v. County of Hillsborough, 46 Fla. 502, 35 So. 88, 110 Am.St.Rep. 104; Middleton v. City of St. Augustine, 42 Fla. 287, 29 So. 421, 89 Am.St.Rep. 227. The act, being applicable to cities and towns, is not controlled by section 21 of article 3, but by section 8 of article 8 of the Constitution.

Nor would the issuance of the certificates involved in this case, if approved by the freeholders as required by. amended section 6 of article 9 of the Constitution, violate the debt limitation of the Miami City Charter. See section 12 of chapter 17176, supra. The Legislature, under section 8 of article 8 has power to make exceptions to the ordinary debt limitations usually found in city charters, by conferring the power to issue obligations under special circumstances deemed by the Legislature proper to constitute an exception to the general limitation.

We find the proceedings taken to have been in conformity with the power conferred by the statute under which the city has attempted to act, but in view of the limitations of amended section 6 of article 9 of the Constitution, we hold that the issuance of the proposed certificates involved in this case should be enjoined until the proposal to negotiate and sell same *591shall have been duly submitted to and approved at an election of freeholders duly called and held under amended section 6 of article 9 of the Constitution in one of the methods provided by law for calling and holding such elections.

Reversed for an appropriate decree not inconsistent with this opinion.

WHITFIELD, C. J., and ELLIS, TERRELL, and BUFORD, JJ., concur.

BROWN, J., dissents.