(Fla., 108 So. 836.) of existence by being annexed to or -abolitionright to property. merged in another corporation, and if no legislative provision is made respecting the property and liabilities of the corporation which ceases to exist, the corporation to which it is annexed, or in which it is merged, is entitled to all its property and is answerable for all its liabilities. Where a municipal or public corporation is legislated out of existence and its terri -liability for debts of annexed territory. tory annexed to other corporations, the latter, unless the legislature otherwise provides, are entitled to its property, and severally liable for a proportionate share of its then subsisting legal debts, and vested with the power to raise revenue wherewith to pay them by levying taxes upon the property transferred and the persons residing therein. The creditors of the extinguished corporation were held in the case cited in the note to have a remedy in equity against the corporations succeeding to its property and powers to have the amount ascertained, apportioned, and adjudged to be paid." 1 Dill. Mun. Corp. 5th ed. § 357, and numerous cases there cited. -dissolutionliability for debts. It appears to the writer that the law is well settled that "where the legislature of a state has given a local community, living within designated boundaries, a municipal organization, and by subsequent act or series of acts repeals its charter and dissolves the corporation, and incorporates substantially the same people as a municipal body under a new name for the same general purpose, and the great mass of the taxable property of the old corporation is included within the limits of the new, and the property of the old corporation used for public purposes is transferred without consideration to the new corporation for the same public uses, the latter, notwithstanding a great reduction of its corporate limits, is the successor in law of the former, and liable for its debts." Mobile v. Watson, 116 U. S. 289, 29 L. ed. 620, 6 Sup. Ct. Rep. 398; Graham v. Folsom, 200 U. S. 248, 50 L. ed. 464, 26 Sup. Ct. Rep. 245; Thompson v. Abbott, 61 Mo. 176; 1 Dill. Mun. Corp. 5th ed. §§ 357 and 358. Also: "Where particular powers are expressly conferred, and there is also a general grant of power, such general grant er-construction. by intendment in- grant of pow cludes all powers that are fairly within the terms of the grant and all essential to the purposes of the municipality, and not in conflict with the particular powers expressly conferred." Liberis v. Harper, 89 Fla. 477, 104 So. 853. See also State ex rel. Ellis v. Tampa Waterworks, 56 Fla. 858, 19 L.R.A. (N.S.) 183, 47 So. 358. "It must be assumed that in passing a law the legislature intended a valid enactment, Statutes-conrather than one in struction to uphold. conflict with the Constitution; the statutes should, if possible, be so construed as to be constitutional rather than as conflicting with organic law." Harper v. Galloway, 58 Fla. 255, 26 L.R.A. (N.S.) 794, 51 So. 226, 19 Ann. Cas. 235; Christopher v. Mungen, 61 Fla. 513, 55 So. 273; State ex rel. Clarkson v. Philips, 70 Fla. 240, 70 So. 367, Ann. Cas. 1918A, 138. Unless a statute is in positive conflict with some designated or identified provision of of statute. the Constitution, it Courts-validity should not be held unconstitutional. Lainhart v. Catts, 73 Fla. 735, 75 So. 47. It appears clear that the municipal corporation, the city of Panama City, created by chapter 11,678, Laws of Florida, Acts of the Extraordinary Session of Legislature November, 1925, was successor to the municipal corporations, the city of Panama City, city of St. Andrews, and the town of Millville; that as such successor it became owner of all public property formerly owned by the abolished municipalities, and that it became charged with the duty of discharging all outstanding obligations of such abolished municipalities, and is authorized by law to levy and collect taxes upon the property within the territory formerly constituting each of the said municipalities for the purpose of paying the outstanding obligations of such municipalities, and that, failing to do so, its officials may be forced by mandamus to levy and collect such taxes and apply the same to the discharging of such respective obligations; that these conditions are so clearly expressed in the statutes, or so forcefully implied by the positive mandate of the statutes, that the conclusion is inevita ble. Certainly it was not the purpose of the framers of the Constitution to require the Legislature to make more definite or more adequate provision for the protection of the creditors of an abolished corporation than that which had existed prior to the act of abolition. This being true, the legislature has made provision for the protection of creditors of the abolished municipalities, and has not violated the provisions of the Constitution. The writ should, therefore, be quashed. The writ is quashed. Brown, Ch. J., and Ellis and Terrell, JJ., concur. Whitfield, J., dissenting: The controlling question to be determined is whether chapter 11,678, Laws of Florida, in abolishing three municipalities and establishing one municipality in lieu of three, has complied with the mandate of the Constitution that, "when any municipality shall be abolished, provision shall be made for the protection of its creditors." The organic provision that no "law impairing the obligation of contracts shall ever be passed" is a prohibition upon legislative action and relates to the obligation of contracts, while the organic command that, "when any municipality shall be abolished, pro vision shall be made for the protection of its creditors," requires affirmative and positive action by the legislature in making provision for the protection of creditors when a municipality is abolished. It may not be necessary that the required provision for the protection of such creditors be contained in any specific and express terms, words, or language, but there must be positive and affirmative provision duly made that in fact and in law protects the creditors of a municipality when it is "abolished." Provisions omitted from a statute cannot be supplied by the courts. Ebert v. Poston, 266 U. S. 548, 69 L. ed. 435, 45 Sup. Ct. Rep. 188. Chapter 11,678, Laws of Florida, the Charter Act, provides that three municipalities are "abolished" and a new municipality is "established," covering the territory of the former three with additional territory. The Charter Act validates all assessments and liens, certificates of indebtedness, improvement certificates, and collections of the same "heretofore made and obtained" severally by the three prior municipalities, and also validates all contracts, bonds, and obligations of the then abolished municipalities severally, the amount due to the three to be collected by the newly established city of Panama City and used for the benefit of that portion of said city which formerly constituted severally the three former municipalities and provides that all property included in such former municipalities, respectively, "shall be held responsible for, and be bound for, all contracts, judgments, and debts now held against" them respectively, "and no other territory or property included herein and covered by this act shall be responsible for such contract, judgments and debts, nor shall any tax ever be levied upon any such other territory or property for the payment of such contracts, judgments and debts." These provisions tend to negative a purpose to violate the obligation of the contracts of the abolished mu (Fla. ---> nicipalities; but they are insufficient to constitute an affirmative compliance with the organic command to make provisions for the protection of the creditors of the abolished municipalities. The provision that amounts due to the abolished municipalities severally shall be collected by the new city and "used for the benefit of" the portions of the new city that were parts of the former entities severally is not an adequate provision for the protection of creditors as required by the Constitution. It does not provide for the payment of debts. Section 4 of the Charter Act vests in the new municipality the "title, rights, ownership of property, uncollected taxes, dues, claims, judgments, decrees, choses in action held and owned by the" three abolished municipalities, but the new city is not expressly required to pay the debts of either of the former mu nicipalities. And § 197 provides that all the property, rights, and choses in action of every kind and character belonging to either of the three abolished municipalities "shall become and be the property, rights, and choses in action of the city of Panama City hereby organized and created." The Charter Act gives the new rity power to levy and collect annually taxes upon the real and personal property, in the said city, and provides that it shall levy and collect "such sums as may be necessary to pay interest upon the indebtedness of the city and for the maintenance of its properties and public works, to create a sinking fund for the payment of such indebtedness as may be incurred; and to pay the bonds of the city already issued or any bonds which may be issued in accordance with law; to pay any judgment against the city and such sum as may be commanded to be levied by any mandamus legally issued against the city." This provision relating to the taxing power should not be construed to extend beyond its plain purpose, particularly when its controlling features appear to relate to prospec- The Charter Act does not appear to specifically authorize the new municipality to sue and be sued, though there are references to suits against it, and the provision of the Revised General Statutes of 1920 on that subject seems to confine the authority therein conferred to municipalities incorporated under the general law. See § 1832, Rev. Gen. Stat. 1920. Whatever may be the general rules of law relative to the implied. liability of a municipality for the debts of its abolished predecessor (1 Dill. Mun. Corp. 5th ed. 336), in Florida the Constitution expressly commands that, "when any municipality shall be abolished, provision shall be made for the protection of its creditors," and this organic mandate obviously requires affirmative, positive, and unequivocal provisions to be duly enacted for the protection of the creditors of each and every municipality when it is abolished. The provision of the Constitution here considered was not in existence, and was not material to the decision in Broughton v. Pensacola, 93 U. S. 266, 23 L. ed. 896, which case, like Mobile v. Watson, 116 U. S. 289, 29 L. ed. 620, 6 Sup. Ct. Rep. 398, is not entirely analogous to this one. There is ambiguity as to the taxing power of the new municipality issued" or "to pay any judgment "to pay bonds of the city already parently made the duty of the new against the city," and it is not ap municipality to duly levy and collect taxes and to pay the debts of the former three; nor is the new municipality specifically authorized to be sued to enforce the indebtedness of the several former municipalities to be paid from the property in the territory that was covered by those former municipal entities severally, though there is reference to a mandamus to compel a tax levy. The Revised General Statutes of 1920 do not supply the provisions required by the Constitution for the protection of the creditors of municipalities that are abolished by special legislative enactments. If any of the provisions of §§ 1920, 1922, or other sections of the Revised General Statutes would seem to be applicable, such provisions are inconsistent with the special Charter Act, chapter 11,678, Laws of Florida, and under § 24, art. 3, of the Constitution, the special law "shall be applicable," which special law does not comply with the organic command that, when any munici pality shall be abolished, provision shall be made for the protection of its creditors. Strum, J., concurs. ANNOTATION. Rights and remedies of creditor of municipal corporation which is dissolved or combined with another municipal body. I. Introductory, 128. II. Generally, 128. [Municipal Corporations, § 22.] III. Statutory provisions as to municipal liability: a. In general, 132. b. Greater New York charter, 135. IV. Property or funds subject to payment of debt: a. In general, 137. b. Apportionment of property in consolidated corporation, 139. V. Special commission, or officer, as agency to raise funds, 141. VI. Court as agency to raise funds, 142. VII. Parties to action to enforce payment, 145. 1. Introductory. In discussing in this annotation the rights of a creditor of a municipal corporation, after legislation to dissolve or combine it with another municipal body, the term "municipal corporation" is used in its narrow sense, as including merely cities or villages, and not as including counties, towns, school districts, or the like. The scope of the annotation is further restricted to exclude cases of reorganization of a municipal corporation without substantial change in the form of the corporation, its population, or the extent of its taxable property, though such reorganization is sometimes regarded as a dissolution of the corporation previously existing. II. Generally. On the dissolution of a municipal corporation, or the consolidation of its territory with that of another municipal body, the rights of its creditors are not destroyed, since it is not competent for the legislature to impair its contractual obligations. Branch v. Sour Lake (1924; D. C.) 9 F. (2d) 971, affirmed in (1925; C. C. A. 5th) 6 F. (2d) 355, writ of certiorari denied in (1925) 269 U. S. 565, 70 L. ed. 414, 46 Sup. Ct. Rep. 24; Amy v. Selma (1884) 77 Ala. 103; Ensley v. Simpson (1909) 166 Ala. 366, 52 So. 61; Robinson v. Ensley (1909) Ala. 52 So. 69; Meyer v. Porter (1884) 65 Cal. 67, 2 Pac. 884; Meyer v. Brown (1884) 65 Cal. 583, 4 Pac. 25, 625, 26 Pac. 281; Bates v. Gregory (1891) 89 Cal. 387, 26 Pac. 891; State ex rel. Jefferson City Gaslight Co. v. New Orleans (1889) 41 La. Ann. 91, 5 So. 262; Scaine v. Belleville (1877) 39 N. J. L. 526. Compare Fabric Fire Hose Co. v. Vicksburg (1917) 117 Miss. 89, 77 So. 911. With reference to the consolidation of the city of Sacramento and the county of Sacramento, and the reincorporation of the city of Sacramento, the court said in Bates v. Gregory (1891) 89 Cal. 387, 26 Pac. 891: "The fact that the corporation which wast created by the Act of April 24, 1858, was different in territory as well as in government, did not of itself prevent an action from being brought against the maker of the bonds. Before the bonds had matured the legislature passed the Act of April 25, 1863, by which the inhabitants of the same territory which was embraced in the original Act of March 26, 1851, were reincorporated and vested with the same property and rights which the mayor and common council of the city of Sacramento had possessed prior to the taking effect of the Act of April 24, 1858. By the Act of April 24, 1858, the city and county of Sacramento were made and constituted the 'successor' of the corporation theretofore known as the mayor and common council of the city of Sacramento, and by the Act of April 25, 1863, all the property that 'the city and county of Sacramento' had received from the mayor and common council of the city of Sacramento, as the 'successor' of that municipality, was transferred to and vested in the new 'city of Sacramento,' which thus became the legal 'successor' of the corporation which had issued the bonds. The legislature cannot, by merely changing the name of a municipal corporation, or by abridging or enlarging its territory, so destroy its identity as to impair the rights of its creditors to the enforcement of their obligations against the original corporation." Similarly, in State ex rel. Jefferson City Gaslight Co. v. New Orleans (1889) 41 La. Ann. 91, 5 So. 262, an action involving an appropriation by premises, prior to the consolidation of the two cities of Jefferson and Carrollton with the city of New Orleans, are unassailable under both Federal and state constitutional guaranties, and that the concurrent obligations of the contracts under which they became vested have not been, and could not be, impaired by any constitutional, legislative, or municipal provision." There is, however, authority apparently in conflict with this view; at least, to the extent of the remedy of a creditor in enforcing his claim. Thus, in Fabric Fire Hose Co. v. Vicksburg (1917) 117 Miss. 89, 77 So. 911, a bill was brought against a city to require it to pay a judgment against a town which was within a strip of land made a part of the city by ordinances extending its limits. The bill was held to be subject to demurrer, the court saying: "The argument that the last clause of § 3310, Code of 1906, gives to the complainant a lien upon the property heretofore embraced in the town of Walters, is persuasive. The statute says: 'But such dissolution shall not relieve the property theretofore liable from the debts of the municipality.' But the statute makes no provision for enforcing the claims of creditors, and it may be that the complainant has no remedy except in a court of equity. This is not a suit by the complainant against the former officers or inhabitants of the town of Walters to impress a lien upon the taxable property heretofore liable for the debts of said town. This is not a challenge to a court of equity to supply a remedy for an acknowledged right, under circumstances where there is no remedy at law. This is a straight suit against the city of Vicksburg, and an effort to hold the municipal corporation of Vicksburg personally liable. . . . It is a matter of regret that our statutes authorize the abolition of a municipal corporation without exacting the payment of its debts as a condition precedent, or without making adequate. a city to pay contractual obligations, provision for the levying of a tax to the court said: "Before concluding, it is proper to say that the position of the company is legal, to the effect that the rights which it has acquired in the 47 A.L.R.-9. pay the remaining debts of the defunct corporation. If such proceeding is to be tolerated, what will become of the large bonded indebtedness of the mu |