Smith Bros. Inc. v. Williams , 100 Fla. 642 ( 1930 )

The decree appealed from in effect adjudicated the invalidity of Chapter 10145, Acts 1925, now Section 2502-11, Comp. Gen. Laws, 1927, providing for paving, grading or curbing of public roads outside of municipalities and for assessing the entire costs thereof against abutting property, in counties of not less than than 125,000 population according to the State census of 1925, and giving county commissioners full power and authority therefor. It is contended for the appellant that as Chapter 10145 is in effect the same as Chapter 9316, Acts 1923, now Sections 2480-9, Comp. Gen. Laws, 1927, except that the latter applied to counties of not less than 75,000 nor more than 100,000 (population) according to the Federal census of 1920, and the constitutional validity of Chapter 9316, having been adjudicated by this Court in Moore v. Hillsborough County,86 Fla. 514, 98 So. R. 505, the validity of Chapter 10145 has in effect been adjudicated; and further that as Chapter 12208, Acts 1927, Section 2512, Comp. Gen. Laws, 1927, has validated the acts done under Chapter 10145, the validity of the certificates of indebtedness issued for paving, grading or curbing public roads under the latter Act is established, and the decree appealed from should be reversed and the payment of the certificates enforced as contemplated by the last cited statutes.

This makes it proper to consider the questions that were duly presented for decision and decided as to the constitutional validity of Chapter 9316 in the Moore case; and also to consider the effect of Chapter 12208, Section 2512, Comp. Gen. Laws, 1927, as a validating Act in determining the validity and effect of the various provisions of Chapter 10145 that are challenged here.

In Moore v. Hillsborough County, 86 Fla. 514, 98 So. R. 505, decided in 1923, an injunction was sought to restrain the county and its officers from paving, grading and curbing a public road and from issuing certificates of indebtedness against complainant's property for such paving, grading and curbing. It was in effect alleged that Chapter 9316, Acts 1923, now Sections 2480-9, Comp. Gen. Laws, 1927, under which the paving was to be done, is special legislation under Section 20, Article III of the Constitution and that the notice of such proposed legislation was not given as required by Section 21, Article III; that Section 7 of the Act illegally provides that expenses incurred in giving notice of proposed issue of certificates shall be included in the amount of the certificates, which "with attorney fees and costs of court for any suit instituted, shall be a lien upon the property named in the certificate as well as the principal and interest on the amount named in said certificate and does not provide that the expenses incurred in giving notice as provided in said Act for the proposed issuance of said certificates, and the cost and expenses of the issuance of said certificates, shall be prorated against the abutting property in equal proportions to the front footage on said highway to be paved under and by virtue of said Act; that said Act is unconstitutional and void in that it vests in the board of county commissioners the right to determine the sufficiency of the petition and that their determination of the sufficiency of the petition shall be final and conclusive, which Act thereby attempts to place a lien upon the property of complainant without due process of law, and attempts to deprive complainant of the right to have a judicial determination of the sufficiency of the petition filed under said Act for the paving of public roads in counties of not less than seventy-five thousand, or more than one hundred thousand."

A demurrer was interposed stating merely that "the bill of complaint contains no equity." The demurrer was sustained and the cause was dismissed. On appeal the decree was affirmed without opinion. Moore v. Hillsborough County, 86 Fla. 514, 98 So. R. 585.

The validity of Chapter 9316, Acts 1923, was not challenged on any other ground than those stated above. Obviously, if Chapter 9316 be a local law within the meaning of Sections 20 and 21, Article III, Constitution, the question as to notice of it as a proposed law, was concluded by its enactment. Stockton v. Powell, 29 Fla. 1, 10 So. R. 688; 15 L.R.A. 42; Rushton v. State, 58 Fla. 94, 50 So. R. 486; Vann v. State, 65 Fla. 160, 61 So. R. 323; State v. Fearnside, 87 Fla. 349, 100 So. R. 256. Chapter 9316 was enacted before the amendment of 1928 to Section 21, Article III of the Constitution and the statute was not enacted at a special session of the Legislature. Horton v. Kyle, 81 Fla. 274, 88 So. R. 757. The criticism of the provisions of Section 7 of the Act as to prorating costs, etc., even if well founded would not of itself render the entire Act invalid. The mere fact that the Act attempts to confer powers of final adjudication upon the board of county commissioners does not invalidate the Act because notwithstanding such statutory provision, the courts may judicially determine justiciable questions arising under the statute. See D'Alemberte v. State,56 Fla. 162, 47 So. R. 489.

The decree on demurrer in the Moore case was properly affirmed.

Chapter 10145, Acts 1925, purports to authorize "the owner or owners of two thirds of the property abutting on any public road, or any continuous portion thereof," to present to the board of county commissioners a petition duly signed by the petitioners asking that such public road be paved, etc., "then it shall be the duty of such board" "to grant the petition and order the road paved" etc., "as the petitioners may request; the determination of said board as to the sufficiency of the petition shall be final and conclusive. After the improvement is completed the entire costs thereof shall be assessed against the property abutting upon said public road * * * in proportion to the frontage of such public road." "All such assessments * * * shall constitute a prior lien to all other liens, except taxes, upon the property upon which the assessment is made." "As soon as said assessment is made" the board "shall issue certificates of indebtedness for the amounts so assessed against the abutting property."

These provisions attempt to confer upon "the owner or owners of two-thirds of the property abutting on" a public road, authority to designate the property which shall be assessed for the entire costs of the public road improvement without reference to benefits to the abutting property or to public necessity and use of the road, which would result in a deprivation of property without due process of law, or a denial of the equal protection of the laws.

The statute provides that "before issuing any of the certificates" the board "shall give notice by advertising once a week for four weeks * * * of the amount of such certificate proposed to be issued," etc. Anyone having an interest in such property may at any time within thirty days from the giving of such notice appear before the board * * * at any meeting thereof and make valid objection to the issuance of such certificate or the amount thereof. The board shall after a hearing upon such objection determine its validity. If no such objection shall be made the certificate shall be conclusive and not subject to attack."

This procedure relates to issuing certificates of indebtedness and does not clearly appear to afford a sufficient notice and an opportunity to be heard as to the validity and reasonableness of the projects or as to the benefits to the abutting property and the use of the road by the public, which hearing should appropriately be had before the improvement is provided or the assessment made, where the projects are designated by petitions of individuals and not by an established and duly authorized governmental agency.

These fundamental matters were not presented for consideration in Moore v. Hillsborough County, 86 Fla. 514, 98 So. R. 505, decided in 1923. That decision is conclusive as to the matters presented by the pleadings and adjudicated by the court. See County Commissioners v. King, 13 Fla. 451; Weinberger v. Board, 93 Fla. 470, 112 So. R. 253. See also State ex rel. v. Greer, 88 Fla. 249, 102 So. R. 739, 37 A. L. R. 1298; Douglass v. Pike County, 11 Otto (U.S.) 677,25 Law Ed. 968; Ross v. Road Dist., 27 F.2d 153; 12 C. J. 769, 15 C. J. 626. No question of waiver or estoppel as to organic rights is presented here. In Christopher v. Mungen,61 Fla. 513, 55 So. R. 273, a statute was held to be valid which had been held invalid in Adams v. Sneed, 41 Fla. 151, 25 So. R. 893. In Westlake v. Merritt, 85 Fla. 28, text 31, 95 So. R. 662, a statute was held to be invalid which had been regarded as valid in Rasmussen v. Tippins, 83 Fla. 530, 91 So. R. 560. See McCollum v. McConaughy, 141 Iowa 172, 119 N.W. R. 539; Pierce v. Pierce, 46 Ind. 86; 12 C. J. 801, 15 C. J. 960.

The principles as to due process of law in forming taxing districts above stated, were elucidated and applied in Browning v. Hooper, 269 U.S. 396, 46 Sup. Ct. R. 141, 70 Law Ed. 330, decided in 1926; State ex rel. v. Ball, 116 Tex. 527[116 Tex. 527], 296 So. W. R. 1085. See City of Ft. Myers v. State, 87 Fla. 704, 117 So. R. 99; Stewart v. Daytona, etc., 94 Fla. 859, 114 So. R. 545; A. C. L. v Lakeland, 94 Fla. 386, 115 So. R. 669; Parrish v. Hillsborough County, 98 Fla. 430, 123 So. R. 830. Other criticisms of the statute need not be discussed here. Chapter 12208, Acts of 1927, validates acts done under Chapter 10145, Acts 1925.

While a statute cannot validate or vitalize a previous statute or provisions of a previous statute that conflict with the Constitution, Horton v. Kyle, 81 Fla. 274, 88 So. R. 757, 12 C. J. 1092, yet a statute may validate previous administrative assessments or other acts or proceedings in so far as such assessment or other proceedings do not violate any provision of organic law. City of Orlando v. Giles, 51 Fla. 422, 40 So. R. 834; Cranor v. Board, 54 Fla. 526, 45 So. R. 455; Givens v. Hillsborough County, 46 Fla. 502, 35 So. R. 88; Camp v. State, 71 Fla. 381, 72 So. R. 483; Spencer v. Merchant,125 U.S. 345; 31 L.Ed. 763; Taylor v. Hastings Drainage District, 78 Fla. 268, 82 So. R. 815; Wagner v. Baltimore, 239 U.S. 207; Stockdale v. Ins. Co., 20 Wall. 323. City of Seattle v. Kelleher, 195 U.S. 351; Ritchie v. Franklin Co., 22 Wall. 67; 112 U.S. 261.

A validating or curative statute may ratify or confirm only the acts it may authorize. Charlotte Harbor N. Ry. v. Welles,78 Fla. 227, 82 So. R. 770, 260 U.S. 8, 43 Sup. Ct. R. 3,67 Law Ed. 100; Middleton v. St. Augustine, 42 Fla. 287, 29 So. R. 421, 89 Am. St. R. 227; 12 C. J. 1292; City of Jacksonville v. Basnett, 20 Fla. 525; Anderson v. City of Ocala, 83 Fla. 344, 91 So. R. 182; 12 C. J. 1094; 6 R. C. L. page 321; Katzenberger v. Aberdeen, 121 U.S. 172, 7 Sup. Ct. R. 947, 30 Law Ed. 911; State v. Fla. Inland Nav. Dist., 97 Fla. 839, 122 So. R. 249; 22 Fed.R. 2d 681; 172 U.S. 416; 6 R. C. L. 321; 25 R. C. L. 94; Munroe v. Reeves, 71 Fla. 612, 71 So. R. 922.

Chapter 12208, Acts 1927, provides that "all proceedings, acts and things existing, done, had and taken by or under the authority of any board of county commissioners of any county * * * under Chapter 10145, for the purpose of carrying out any of the provisions thereof, including all assessments and all certificates of indebtedness, are hereby validated, ratified and confirmed, provided that any suits or actions heretofore brought and now pending, and any valid objections heretofore made and now pending before any such board of county commissioners, to assert any rights conferred by said Chapter 10145, shall not be affected by this Act."

This statutory provision placed the assessments on the same plane as if they were made by the legislature, and thereby cured any mere irregularities in the assessments; but as the legislature could not put aside or override constitutional limitations, the confirmation by the statute of the assessments made does not prevent inquiry as to the constitutional validity of the assessments. To the extent, if any, that the assessments as confirmed by the statute may be purely arbitrary and unreasonably discriminatory in amount, they violate both the due process and equal protection clauses of organic law and should not be enforced. Road Dist. v. Mo. Pac. R. R. Co., 274 U.S. 188, 47 Sup. Ct. R. 563,71 Law Ed. 992; Standard Pipe Line v. Highway Dist., 277 U.S. 160, 48 Sup. Ct. R. 441, 72 Law Ed. 831; Berry v. Hardee, 83 Fla. 531, 91 So. R. 685, State ex rel. v. Bass, 96 Fla. 478, 118 So. R. 212.

If the road improvements, for which the certificates of indebtedness were issued predicated upon assessments made against abutting property, were primarily and essentially for the benefit of the abutting property, the entire cost, not to exceed benefits to abutting property, may be assessed and properly apportioned against the abutting property (A. C. L. v. Lakeland, on petition for re-hearing, 115 So. R. 669, 685); but if the road improvements were primarily and essentially for the benefit of the public, the entire cost of the improvements may not legally be assessed against the abutting property; and if the road improvements were for the benefit of the public and of the abutting property, the cost should be properly apportioned between the public and the abutting owners and also among the abutting owners. Parrish v. Hillsborough County, 98 Fla. 438, 123 So. R. 830, and authorities cited.

Reversed for appropriate proceedings.

TERRELL, C. J., AND ELLIS, STRUM AND BUFORD, J. J., concur.

BROWN, J., dissents.