Abell v. Town of Boynton

• Decision Date: 30 May 1928
• Citation: 117 So. 507,95 Fla. 984
• Parties: ABELL v. TOWN OF BOYNTON et al.
• Court: Florida Supreme Court

117 So. 507

95 Fla. 984

ABELL v. TOWN OF BOYNTON et al.

Florida Supreme Court, Division B.

May 30, 1928

Suit by Walter B. Abell against the Town of Boynton and others. Decree dissolving a temporary restraining order theretofore granted, and complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Charter of municipality generally defines powers and duties. The Charter Act of a municipality generally defines the orbit in which it must move and execute every power and duty imposed on it.

Law relating to local municipal improvements did not repeal laws of like substance, being intended as supplemental and alternative method of procedure (Acts 1923, c. 9298; Sp. Acts 1921, c. 8918). Chapter 9298, Acts of 1923, shows on its face (section 21) that it repealed no act of like substance and that it was intended as a 'supplemental, additional and alternative method of procedure for the benefit of all cities, towns and municipal corporations of the state of Florida, whether organized under special act or the general law.'

Lands cannot be appropriated for public street or other public purpose without just compensation. It is fundamental that one's lands cannot be appropriated for a public street or other public purpose without just compensation therefor.

Abutting property owner cannot be required to bear total expense of improvement resulting in primary benefit to public. If a public improvement results in a primary benefit to the public in an incidental benefit to the property improved, to require the abutting property to bear the total expense of the improvement would amount to an arbitrary and unwarranted servitude which could not be imposed.

Constitutional rights or privileges designed for protection of individual property rights may be put in repose by decree validating bonds (Rev. Gen. St. 1920, § 3296 et seq.). Constitutional rights or privileges which are designed solely for the protection of the property rights of the individual concerned, and which he may waive or with reference to which he may estop himself, or as to which the Legislature may lawfully limit the period of time within which such right or privileges may be exercised, may be put in repose by a decree validating bonds pursuant to section 3296 et seq., Revised General Statutes of Florida.

Constitutional and statutory rights for protection of individual property owners may be waived. Constitutional and statutory rights designed solely for the protection of the property rights of the individual, may be waived, if not exercised under reasonable legal authority.

Property owner offering no resistance, with notice of improvements and assessments, cannot thereafter sue to cancel assessment. When a property owner is on notice that improvements will be made and that all lands, including his own, will be assessed and bonds issued to pay for them, that the contract has been awarded, the work completed, and the bonds issued and validated, and no resistance has been offered on his part objection at this time comes too late.

Property owner, failing to avail himself of statutory remedies, cannot thereafter assert invalidity of assessment before judicial tribunal. Under the law, appellant could have complained of the assessment before the town council sitting as an equalizing board, he could have enjoined the letting of the contract for the improvement over his lands, or he could have intervened and resisted the validation of the bonds, but having failed to avail himself of any of these remedies provided for his protection, the general rule is that he is estopped and cannot be heard by a judicial tribunal to assert the injustice, the invalidity, or the unconstitutionality of the assessments against him.

Unsupported statement of pleader cannot prevail against showing in record. As against the showing made in the record, the unsupported statement of the pleader cannot prevail.

Appeal from Circuit Court, Palm Beach County; C. E. Chillingworth, judge.

COUNSEL

Davis & Miller, of West Palm Beach, for appellant.

E. J. L'Engle and J. W. Shands, both of Jacksonville, and McCoy & Finch, of Lake Worth, for appellees.

OPINION

TERRELL J.

This case is bottomed on the following facts: The town of Boynton, by resolution promulgated as authorized by chapter 9298, Acts of 1923, Laws of Florida, determined to make certain street improvements, including the improvement of the Dixie Highway within the corporate limits of the said town. The total cost of said improvement was assessed against the abutting property in proportion to benefits prorated by the front footage. Bonds of the town of Boynton were issued in the sum of $350,000 to pay for these improvements, which bonds were by decree of the circuit court of Palm Beach county, dated January 19, 1927, confirmed and validated as provided by section 3296 et seq., Revised General Statutes of Florida.

Appellant, Walter B. Abell, owned lot 6 in Sam Brown, Jr.'s, subdivision of section 15, lying 140 feet along the Dixie Highway in the said town of Boynton, against which an assessment of $1,004.60 was laid as his portion of the cost of the improvement so made. Appellant did not complain of the assessment against him at the meeting which the appellees advertised and held as an equalizing board to hear complaints of property owners, nor did he intervene in the suit to validate the bonds.

On September 21, 1927, long after the validation of the bonds and the completion of the improvements, appellant filed his bill of complaint seeking to cancel the assessment against his land and to declare the bonds void. The bill of complaint prayed for a temporary restraining order, which was granted and later dissolved. Appeal was taken from the decree dissolving the temporary restraining order, which was treated as a decree of dismissal, and the whole cause is presented here on the merits. In view of the pleadings and the contents of the decree of the chancellor appealed from, there can be no objection to the case taking this course.

Appellant contends here (1) that the town of Boynton was created under chapter 8918, Sp. Acts of 1921, Laws of Florida, by which its powers are defined, and that it cannot therefore legally make assessments and public improvements as authorized by chapter 9298, Acts of 1923, Laws of Florida; (2) that the town of Boynton appropriated the lands of appellant for a public street without having legally acquired the same by grant, purchase, condemnation, or otherwise, thereby violating a constitutional right of appellant which was not put in repose by the decree validating the bonds; (3) under the facts in this case, could the town of Boynton legally impose an assessment against the abutting owners for the total cost of the improvement? and (4) when may appellant be said to be estopped and to have waived his right to relief against the assessment imposed on his lands for the improvement brought in question?

In making public improvements, is the town of Boynton restricted to the provisions of its Charter Act. Chapter 8918, Acts of 1921, Laws of Florida. That the Charter Act of a municipality generally defines the orbit in which it must move and execute every power and duty imposed on it cannot be questioned. Malone v. City of Quincy, 66 Fla. 52, 62 So. 922 Ann. Cas. 1916D, 208; Hill v. Memphis, 134 U.S. 198, 10 S.Ct. 562, 33 L.Ed. 887; Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118. Chapter 8918, Acts of 1921, is not by its terms exclusive, while chapter 9298, Acts of 1923, shows on its face (section 21) that it repealed no act of like substance, and that it was intended as a 'supplemental, additional and alternative method of procedure for the benefit of all cities, towns and municipal corporations of the state of Florida, whether organized under special act or the general law, and shall be liberally construed to effectuate its purpose.' Inspection shows the two acts to be consistent in terms and purpose, in no wise repugnant or irreconcilable, and that there is a legitimate field of operation for both. By the decisions of this court we think both must be permitted to stand. There was therefore no error in the town of Boynton exercising its option to proceed with the improvements and issuing bonds to pay for them under chapter 9298, Acts of 1923. City of Tampa v. Prince, 63 Fla. 387, 58 So. 542; Sanders v. Howell, 73 Fla. 563, 74 So. 802; City of St. Petersburg v. Pinellas County Power Co., 87...