Atlantic Coast Line Railroad v. City of Lakeland , 94 Fla. 347 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal from an order sustaining a demurrer to the bill of complaint of appellant by which it was sought to declare certain proceedings of the City of Lakeland in the matter of assessing against the property of appellant one half of the total cost of paving a certain street in that City, which parallels the right of way of the railroad of appellant, to be void; that the certificate issued by the City be declared to be of no effect and a cloud on the railroad property of appellant, and that the City be restrained from instituting any proceeding to enforce the payment of the certificate, and for general relief.

The allegations of the bill, which are admitted by the demurrer, are in substance as follows:

The complainant owns a strip of land within the City of Lakeland; that the land is complainant's right of way, one hundred feet in width, over which it operates its railroad from Port Tampa to Richmond, Virginia; that the right of way was acquired by it through its predecessors from the State; that the complainant is engaged in interstate commerce as a common carrier, and uses the strip of land in such activities; that on December 28, 1923, the City caused to be "graded, established, laid out and opened," parallel to complainant's said right of way, a street known as Main street; that it extends from Dakota Avenue westward a distance of 2400 feet, and does not abut upon complainant's said property, nor is such property adjoining, contiguous, abounding or abutting upon the street, but on the other hand there exists "between the northerly line of said Main street, as so established, and the southerly line of the right of way," a strip of land "verying in width from one foot to 3 1/2 feet, or thereabout;" that on December 29, 1923, the City by resolution determined the necessity for the improvement of "Main street" so established, "by grading, paving, curbing and in other ways improving same," and the City attempted to "impose and assess upon all property bounding or abutting the said street, the entire cost of the improvement thereof," in accordance with the amount of front footage of the property abutting on the street, and that the "entire cost of the said work of such improvement should be paid by the owners of such abutting property;" that by such resolution the City attempted to provide that it "should bear no part of the cost of the making of said improvement, and that no part of the said cost should be apportioned to be paid from the general improvement fund of the said City."

It is stated in the bill that a copy of the "resolution so attempted to be passed, or enacted," was attached to the bill and made a part of it and marked "Exhibit A." That exhibit does not appear in the transcript of the record.

It was alleged also that in April, 1924, the City published its notice of special assessment against the property described, "for the cost of making the said improvement," and described the right of way of the complainant as lands abutting upon the improvement, and assessed against the "right of way a portion of the said cost of the making of the said improvement, in the sum of $14,200.53, being apportioned as 2572 front feet adjoining and contiguous or abounding or abutting upon the said street as improved, and the City attempted to "issue its certain certificate of indebtedness assessing the right of your orator as herein described, for the cost of the said improvement;" that the complainant protested and refused to pay the assessment.

The bill then repeats these allegations in different phraseology. It is, however, made clear that the right of way of the railroad in so far as the street parallels it does not abut upon the street, but that a strip of land not owned nor claimed by the railroad company, and in which it has no interest, lies between the north side of the street and the complainant's right of way; that no part of the cost of the improvement is borne by the City, but the total cost of it including preliminary and incidental expenses, engineer's fees, interest on the cost of the improvement for six months inspection costs, attorneys' fees incurred in issuing bonds to procure funds to pay the cost of the improvement, and other estimated costs, was assessed and charged to the property or lots abutting the street on both sides on the basis of the front foot rule; that on such reckoning the complainant's right of way was assessed at "one-half of the entire cost of the improvement" for a distance of 2572 feet.

It is also alleged that prior to the city's operations no street existed there, and that the opening and paving of it was an injury to, instead of a benefit to the railroad property; that in making the assessment against the complainant's property the city did not take into account nor did it in any way attempt to determine any benefit accruing to complainant's property by reason of the improvement; that none in fact existed, but the improvement on the contrary was an injury and detriment; nor was the assessment made upon any consideration of the benefits to the public, and what part if any, of the expense should be borne by the public or city on account thereof; that there was merely an arbitrary division of the total cost of the work by the number of lineal feet of the street and the quotent thus obtained divided between the lands on both sides of the street and apportioned to it per front foot; that on the south side of the street the depth of the abutting property was about 170 feet, while the complainant's right of way was only 100 feet wide; and that the improvement of the street was of great benefit and convenience to the public, and particularly to the citizens of Lakeland.

The allegations of the bill are not clear as to what was done by the city in the matter of the cost of the original grading, establishment, laying out and opening of the street, whether that expense was also included in the improvement, so it will be considered that only the "grading, paving and curbing," engineers' fees, interest, attorneys fees incurred in the bond issue, and other estimated costs, constituted the amount which was assessed in its entirety to the abutting property.

The City proceeded in the matter under the provisions of Chapter 9298, Laws of Florida, 1923, the title to which is as follows:

"AN ACT Providing a Supplemental, Additional and Alternative Method of making local improvements in Cities, Town and Municipal Corporations, authorizing and providing for Special Assessments for the cost thereof, and authorizing the Issuance and Sale of Bonds of such Municipalities in connection with said local improvements, said bonds to be general obligations of the Municipalities."

Section 1 of the Act purports to empower any city, town or municipal corporation of this State to provide for the construction, reconstruction, repair, paving, re-paving, hard surfacing, and re-hardsurfacing of streets, boulevards, and alleys, for grading, re-grading, leveling, laying, re-laying, paving, re-paving, hardsurfacing and re-hardsurfacing side walks, and for the payment of all or any part of the cost of any such street improvement by levying and collecting special assessments on abutting, adjoining, contiguous, or other specially benefited property."

Section 2 provides that the special assessments against property deemed to be benefited by such local improvements shall be assessed upon the property specially benefited by the improvement in proportion to the benefits derived therefrom; that the benefits should be determined and prorated according to the foot frontage of the respective propertiesspecially benefited, or by such other method as the governing body of the municipality may prescribe.

Section 3 provides that when the governing authority may determine to make any "public improvement or repairs in streets, and defray the whole or any part of the expense thereof by special assessment" it shall declare by resolution stating the nature of the proposed improvement, designating the street or streets to be improved, what part or portion of the expense is to be paid by special assessment, the manner in which said assessment shall be made, when to be paid, what part is to be paid "if any" from the general improvement fund of the municipality, and the resolution shall designate the lands upon which the special assessment shall be levied. The description of such lands deemed to be specially benefited should be as "All lots and lands adjoining and contiguous or bounding and abutting upon such improvement." The resolution was also required to state the total estimated cost of the improvement.

Sections 4, 5, 6, 7, 8, and 9 provide for the preliminary work, such as preparing plans and specifications, publication of the resolution in a newspaper, preparation of an assessment roll, the publication of the same in a newspaper, the meeting of the governing authority as an equalizing board to consider complaints, and to adjust them on the basis of "justice and right" and when such function is discharged the "equalized and approved" assessments "shall stand confirmed, and be and remain legal, valid and binding liens, upon the property against which such assessments are made, until paid," and the periods in which such payments may be made.

Section 10 provides for the enforcement of the lien by bill in chancery.

Section 11 provides for issuing bonds to an amount not exceeding seventy per cent of the proportionate part of the cost to be paid by special assessment.

Section 12 provides for issuing more bonds for unpaid assessments.

Section 13 provides for the method of selling the bonds issued under the Act.

Section 14 provides for new assessments made necessary on account of any irregularities in the original proceedings.

Section 15 authorizes the municipality to pay from the general funds, or any special funds provided for that purpose, the cost of any street improvement.

Section 16 provides that the assessment roll as finally approved shall be competent evidence of due and legal procedure in the levy.

Section 17 provides for the denominations of the bonds issued and interest they are to bear, the form of the bonds and coupons.

Section 18 provides what method of publications of proceedings shall be followed when no newspaper is published in the county in which the municipality is located.

Sections 19 and 20 provide for the sale of the bonds and their negotiability and Sections 21 and 22 provide that the Act shall not repeal any other statute relating to the subject; that it shall be liberally construed and go into effect on its approval by the Governor. It was approved May 19, 1923.

In the case of Walters et al. v. City of Tampa, 88 Fla. 177, 101 So.2d Rep. 227, this Court, upon the authority of the cases of Anderson v. City of Ocala, 67 Fla. 204, 64 So.2d Rep. 775, and French v. Barber Asphalt Paving Co., 181, U.S. 324, 45 L.Ed. 879, 21 Sup. Ct. Rep. 625, and 5 McQuillan on Municipal Corporations, Sec. 2089, upheld the above Act against the attack that it authorized a municipality to take property without due process of law, and denied to owners of property in municipalities in this State equal protection of the law contrary to the Fourteenth Amendment to the Constitution of the United States, in that it provides for the assessment of the costs of local improvements on the basis of front footage, or the front foot rule, and other points not presented in this case. It was distinctly pointed out by Mr. Justice TERRELL, who wrote the opinion, that it was not contended that the assessment exceeded the benefits to the appellants' lots, or that it was out of proportion to similar assessments for like purposes in the same vicinity, or that it was in any other respect unjust or inequitable.

In the case at bar, the bill in substance alleges that the assessment was made without reference to any benefit derived to complainant's property on account of the public work; that in fact the improvement of the street was not a benefit but an injury to the value of the complainant's property considering the use to which it was compelled to put it; and that in any case the assessment against complainant's property was unjust and inequitable when considered with reference to the assessment against the property upon the opposite side of the street which was much greater in superficial area per front foot than complainant's property and abutted upon the improved street while a narrow strip of land not owned by the complainant, and in which it had no interest, right or title separated its property from the paved street.

In the case of French v. Barber Asphalt Paving Company,supra, the court affirmed a judgment for plaintiff in an action to enforce the lien of a tax bill for the cost of paving. After observing the requirements of the charter of the city relating to street paving a contract was let to the Asphalt Company to do the work and special tax bills were issued for the cost thereof against the abutting property according to the frontage without reference to any benefits to the property on which the charge was made, and the special tax bills levied.

The case arose in Kansas City, Missouri, in which state the rule of charging the cost of paving streets against adjoining lots according to their frontage had been repeatedly authorized by the Legislature of that State, and such laws had received the sanction of the Supreme Court in many decisions. That rule, called the front-foot rule, was no longer an open question in that state. The Supreme Court of the United States was bound by such decisions in so far as the Constitution and Laws of Missouri were concerned. French contended that the rule as sanctioned by the Supreme Court of Missouri was in conflict with the Fourteenth Amendment of the Constitution of the United States, but that Court decided against such contention, so the Federal question was presented. The court followed the doctrine announced in Don ex dem. Murray v. Hoboken Land Improv. Co., 18 How. (U.S.) 280, 15 L.Ed. 372; McMillen v. Anderson,95 U.S. 37, 24 L.Ed. 335, and Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616, where it was held that neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which thestate authorities are controlled by the Federal Constitution. The Court said that:

"The 14th Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line."

We have a very clear exemplification of that truth in the case of Marshall v. Young Construction Company, decided at this term, in which it was held that a lien certificate for paving issued by a municipal corporation in this State could not be assigned to the contractor who performed the work so as to enable him to maintain an action against the owner of the property against which the paving lien existed, while in the case of French v. Barber Asphalt Co., supra, the contrary doctrine was observed and the Asphalt Company was permitted to maintain its action against French to enforce the lien. The Supreme Court of the United States, in the French case, supra, said:

"It is no part of our duty to inquire into the grounds on which those courts (state courts) have so decided. They are questions which arise between the citizens of those states and their own city authorities, and afford no rule for construing the Constitution of the United States. . . . The main argument for the plaintiff in error — the only one to which we can listen — is that the proceeding in regard to the taxes assessed on his land deprives him of his property without due process of law."

In the French case there was no departure from the usualmodes of assessment, nor was the manner of apportioning and collecting the tax unusual or materially different from that in force where land is subject to taxation. So the court by a majority opinion upheld the Kansas City assessment, applying to the case the doctrine obtaining in the State of Missouri that assessments for local improvements against property abutting on the street paved for the full amount of the cost of such paving on the basis of frontage was a valid exercise of the taxing power.

In its last analysis the majority opinion in the French case holds that the procedure followed by the municipality under a scheme of local improvement, as authorized by the Legislature of the state, and approved by the courts of that state, was not inconsistent with constitutional principles.

There was a dissenting opinion by Mr. Justice Harlan, with whom concurred Mr. Justice White and Mr. Justice McKenna, in which the doctrine was maintained that the legislative department, even when exerting the power of taxation, may not go beyond what is consistent with the citizen's right of property. That: The principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established as a rule of constitutional law that the imposition by the Legislature, upon particular private property, of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country." (Italics mine.)

At the end of a very learned opinion the conclusion was announced; that the case "should be reversed upon the grounds that the assessment in question was made under a statutoryrule excluding all inquiry as to special benefits and requiring the property abutting on the avenue in question to meet the entire cost of paving it, even if such cost was in substantial excess of the special benefits accruing to it; leaving Kansas City to obtain authority to make a new assessment upon the abutting property for so much of the cost of paving as may be found upon due inquiry to be not in excess of the special benefits accruing to such property. Any other judgment will * * * involve a grave departure from the principles that protect private property against arbitrary legislative power exerted under the guise of taxation."

This State has in no case departed from the doctrine announced in the minority opinion in the French case,supra. Chapter 9298, supra, is not inconsistent with such doctrine because it contemplates that whatever assessments may be made against private property for local public improvements must rest upon a proper and fair consideration of the special benefits flowing to the property abutting upon or adjoining the improved street.

While the act authorizes municipalities to require the payment of all or any part of the cost of any such street improvement by levying and collecting special assessments on the abutting, adjoining or contiguous property, the authorization rests upon the supposition that the property assessed is specially benefited by the improvement. The act provides that the special assessments shall be made upon the "property specially benefited by the improvement in proportion to the benefits to be derived therefrom, said special benefits to be determined and prorated according to the foot frontage of the respective properties specially benefited by said improvement, or by such other method as the governing body of the municipality may prescribe."

The question of whether property abutting upon a street is in fact specially benefited by the paving of the street does not rest exclusively in the judgment or upon the "ipsedixit" of the municipal officer or officers if there are more than one, who asserts authority over municipal affairs, but it is a question of fact to be ascertained and established as any other fact, and the proportion of the cost to be assessed against a particular lot must bear a reasonable and fair relation to the special benefits which actually accrued.

It was not intended that the power of taxation should be used by municipal authorities as an instrument of oppression upon property owners nor that it should be utilized to promote a campaign of municipal advertising of the city's prosperity.

The power of taxation is sovereign in character and may be used only to the end that the necessities and reasonable conveniences for the administration of public affairs may be efficiently but economically executed.

It may be possible that a condition could exist in a municipality where the paving of streets could be accomplished by requiring the property on each side of the street to bear the total cost of the work conservatively incurred, and be at the same time just and equitable; but such a condition has not arisen in this case, nor has such a case ever come within our observation.

The paving of streets and sidewalks results from the demand which arises for additional conveniences for the public at large, and the power to tax for it rests upon the existence of public necessity.

On the question of to what extent property abutting upon a sidewalk or paved street may be said to be specially benefited by paving the sidewalk or street much may be said. It may be observed, however, that much depends upon the property and the use to which it is put. The value of business property, those lots which are devoted to business purposes, may be enhanced by the passing to and from upon paved sidewalks and streets of a greater number of people, but it is by no means certain that the same consideration forms any element in the value of property used for other purposes, such as residences, churches, hospitals, and the like. The question of the existence of special benefits is not one that rests in the arbitrary dictum of a municipal agent.

Assessments for local improvements form an important part of the system of taxation. See C. T. Marshall v. C. S. Young Construction Company et al., decided at this term.

A municipal corporation has ample power to make public improvements even in the absence of special statutory authority, because being once created it is presumed to have inherent power to make such improvements as are necessary to carry out the objects of its incorporation. This includes the power to erect suitable public buildings, to grade and pave streets, etc. The purpose of a municipal corporation is the amelioration of urban conditions. The above powers are not therefore merely incident, they are inherent. They come along with, and as a part of the charter of incorporation, therefore are conferred by legislative enactment in the granting of the charter. See Bates v. Bassett, 60 Vt. 530, 15 Atl. Rep. 200, 1 L. R. A. 166; Cartersville v. Baker, 73 Ga. 686; 1 McQuillin Municipal Corporations, Sec. 357; Williamsport v. Commonwealth, 84 Pa. St. 487, 24 Am. Rep. 208.

This Court is in harmony with that rule, which is that the implied powers must be necessarily or fairly implied in or incident to the powers expressly granted, or those that are essential and indispensable, not simply convenient to accomplish the objects and purposes of the corporation. See Florida Cent. P. R. Co. v. Ocala St. S. R. Co., 39 Fla. 306, 22 So.2d Rep. 692; State ex rel. Worley v. Lewis,55 Fla. 570, 46 So.2d Rep. 630.

A statute therefore, which merely grants to a city the power to pave its streets and assess upon abutting property the special benefit resulting from the local improvement confers, no more power than the city had by its mere creation to tax for necessary improvement, but a statute that undertakes to grant more power than that undertakes to confer more than the power of taxation.

A tax is a burden or charge imposed by legislative power upon persons or property to raise money for public purposes, and the enforced proportional contribution of persons and property levied by authority of the State for the support of the government and for all public needs. See Dranga v. Rowe,127 Cal. 506, 59 Pac. Rep. 944; McClelland v. State, 138 Ind. 321, 37 N.E. Rep. 1089; State v. Switzler, 143 Mo. 287, 45 S.W. Rep. 245, 65 Am. St. Rep. 653, 40 L. R. A. 280; State v. Montague,34 Fla. 32, 15 So.2d Rep. 589.

As assessments for local improvements are a part of the system of taxation it follows that when such power is exercised it must be exercised for public purposes. 5 McQuillin Municipal Corporations, Sec. 2372.

An assessment for local improvements, therefore, must be according to the special benefits which the particular parcel receives. The city is not permitted to make a profit upon the transaction; that is, to commercialize the power of taxation which must be exercised only for the public necessity or convenience. Whatever may be the reasonable cost of the improvement is the measure of its value or benefit which is to be apportioned between the public and the local or abutting property benefited, if any.

This involves the exercise of judgment. It must be determined by municipal authority to what proportion of the reasonable cost the public is benefited and the remainder to be raised by assessments upon the property benefited. If the amount of public benefit to flow from the improvement is so small, or disproportionate to the reasonable cost as to be negligible, the exercise of the power is obviously not for the public benefit.

The local assessment must be according to the special benefits which the particular parcel receives. See 2 Dillon Municipal Corporations, p. 805, Sec. 809n, 2; Hoyt v. City of East Saginaw, 19 Mich. 39; Kaiser v. Weise, 85 Pa. St. 366; Weber v. Reinhard, 73 Pa. St. 370.

The Legislature cannot require that each parcel of land or lot upon a street shall pay the whole expense of grading and paving the street along its front, regardless of the benefits which may or may not accrue from such work. Cooley Constitutional Limitations 1890, p. 625.

The reason for this rule is clearly expressed by the above named renowned author on Constitutional Law:

"But a very different case is presented when the Legislature undertakes to provide that each lot upon a street shall pay the whole expense of grading and paving the street along its front. For while in such a case there would be something having the outward appearance of apportionment, it requires but slight examination to discover that it is a deceptive semblance only, and that the measure of equality which the constitution requires is entirely wanting. If every lot owner is compelled to construct the street in front of his lot, his tax is neither increased nor diminished by the assessment upon his neighbors; nothing is divided or apportioned between him and them; and each particular lot is in fact arbitrarily made a taxing district, and charged with the whole expenditure therein, and thus apportionment avoided. If the tax were for grading the street simply, those lots which were already at the established grade would escape altogether, while those on either side, which chanced to be above and below, must bear the whole burden, though no more benefited by the improvement than the others. It is evident, therefore, that a law for making assessments on this basis could not have in view such distribution of burdens in proportion to benefits as ought to be a cardinal idea in every tax law. It would be nakedly an arbitrary command of the law to each lot owner to construct the street in front of his lot at his own expense, according to a prescribed standard. And a power to issue such command could never be exercised by a constitutional government, unless we are at liberty to treat it as a police regulation, and place the duty to make the streets upon the same footing as that to keep the sidewalks free from obstruction, and fit for passage. But any such idea is clearly inadmissible."

There is in this State's Constitution no provision which may be construed or tortured into a construction authorizing a municipality to tax a citizen to make him build improvements for his own benefit merely. It must be for a public purpose, or it is not a legitimate exercise of the taxing power, and it cannot be warranted under any other power known to constitutional government, and the authority to adopt it should not be found in doubtful words.

As to the question of assessing part of the expense of paving a street to a railroad's right of way that abuts or borders on the street paved, this Court in Atlantic Coast Line R. R. Co. v. Gainesville, 83 Fla. 275, 91 So.2d Rep. 118, said by way of dictum, that the right seems well established. We do not in this case either affirm or repudiate the dictum in that case as in the view expressed herein the conclusion is inevitable that the entire proceedings of the City of Lakeland under the said Act of the Legislature is invalid in so far as an attempt to place the entire cost of the expense of paving the street upon the property abutting thereon, is involved.

The demurrer should have been overruled because it admitted the averments that the property assessed did not abut or border upon the street; that it was assessed for the entire cost of the improvement without reference to the public convenience, necessity and benefits derived, and that the property assessed was not benefited but was in fact injured by the so-called improvement.

The order sustaining the demurrer and dismissing the bill is reversed with directions to allow the case to proceed in accordance with the views expressed in this opinion.

Reversed.

WHITFIELD, TERRELL, BROWN AND BUFORD, J. J., concur.

STRUM, J., concurs in the conclusion