Anderson v. City of North Miami
| Decision Date | 20 December 1957 |
| Parties | Gottfried Andrew ANDERSON and Anna Maria Anderson, husband and wife, Harold W. Bee and Magdalene Bee, husband and wife, Abraham DeBeauchamp and Elizabeth DeBeauchamp, husband and wife, Martin Stricker, Roy W. Wilson, Walter E. Daniel, Jr., and All Others Similarly Situated, Appellants, v. The CITY OF NORTH MIAMI, a municipality incorporated under the laws of the State of Florida, Appellee. |
| Court | Florida Supreme Court |
Anderson & Nadeau, Miami, for appellants.
Boardman & Bolles, Miami, for appellee.
This is an appeal by the plaintiffs from a final decree dismissing a suit which they had brought against the appellee, City of North Miami, to challenge the legality of special assessments which the city had imposed upon their properties for certain improvements.
The complaint alleged that the plaintiffs were owners of property abutting on N.E. 123rd Street from the west side of the Florida East Coast Railroad right-of-way to Biscayne Boulevard; that pursuant to proceedings of the city council, N. E. 123rd Street was widened to a width of 70 feet and was repaved and a white way lighting system installed; that two-thirds of the cost of the work was assessed against the plaintiffs' property upon a determination by the council that the property would be especially benefited to that extent; that confirmatory resolutions over the property owners' objections were adopted by the city; and that the assessments were null and void on several grounds. On issues made by the defendant's answer, the cause was referred to a special master who took testimony and reported to the court that the improvements greatly and directly enhanced the values of the abutting property; that the city had authority, under the general law, to widen and repave the street and to assess the abutting property owners for the cost; that the publication of the notice of the resolution was accomplished in the manner required by law; that the assessments were not arbitrary and discriminatory; and that certain challenged items were properly included in the assessments. The master's report was confirmed by the circuit court, and this appeal followed. We will consider the points involved in the order stated by appellants.
It is first contended that the city lacked authority to levy special assessments for the cost of acquisition of an additional right-of-way to be used for widening the street, which cost included engineers' and attorneys' fees, and the cost of installing a white way lighting system on the street after so widened. At the time the assessments complained of were levied, the city existed under the general statutes of the state and the only authority for the city to make special assessments was Sec. 170.01, Florida Statutes, F.S.A. That section reads in part as follows:
'Any city, town or municipal corporation of this state * * * may, by its governing authority, 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, relaying, 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 the abutting, adjoining, contiguous, or other specially benefited property.'
As we have often held, municipal corporations have no inherent power to levy special assessments, and in order for such assessments to be valid they must be made pursuant to legislative authority and in accordance with the method prescribed by the legislature. Simpson v. City of Brooksville, 137 Fla. 623, 188 So. 794; City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476. This is not to say, however, that special assessments may not be made for an improvement which is clearly within the intendment of the legislative grant. City of Miami v. Ganger, Fla., 97 So.2d 266.
The master concluded that, although the word 'widen' is not used in F.S. § 170.01, F.S.A., the grant of authority to levy special assessments for widening the street is implicit in the authority to levy such assessments for 'construction' and 'paving'. To adopt the opposite view, he continued, 'would mean that once a municipality exercised its power to construct and pave a street and determined upon and completed a street of a given width, the municipality would have exhausted its authority as to selection of the width of the street, and would therefore be confined to repairing and re-paving the width first constructed'. We agree with the master, as did the chancellor, that this would be an unreasonably narrow interpretion of the statutory language, and we hold that the city had authority to widen the pavement and to assess property especially benefited thereby. See Walters v. City of Tampa, 88 Fla. 177, 101 So. 227, wherein we held that a municipality, under the general statutes, had authority to re-pave, re-grade and widen a street, as against the contention that such improvements were not 'local improvements', within the intendment of the act (Laws, 1923, c. 9298, Sec. 1, predecessor of Sec. 170.01).
We next consider the authority of the city to acquire the right-of-way and assess the cost of such acquisition against abutting properties. In Abell v. Town of Boynton, 95 Fla. 984, 117 So. 507, a municipality had wrongfully and unlawfully appropriated appellant's lands for a public street and assessed the cost of the improvement, apparently including the costs of such wrongful appropriation, against appellant's remaining property. We held that this was a violation of appellant's fundamental rights, although he was estopped to obtain relief in the proceedings he had brought. There is no showing of wrongful appropriation here, and the only question is whether the costs of lawful acquisition of property can be assessed against abutting owners.
Appellants rely upon authorities cited in 63 C.J.S. Municipal Corporations § 1411, page 1199, to the effect that compensation paid a landowner for property taken by condemnation cannot be assessed back on his remaining land where it is expressly provided by constitution that when private property is taken for public use, compensation shall be made to the owner 'without deduction for benefits to any property of the owner'. Appellants further urge that Article XVI, Section 29, of the Florida Constitution, F.S.A., provides that compensation to be paid an owner for the taking of his property shall be 'irrespective of any benefit from any improvement proposed'. This section of the constitution, however, applies only to private property appropriated 'to the use of any corporation or individual'.
Without deciding whether or not this section was intended to apply to property appropriated to the use of a municipal corporation, such as we have here, we think the better view is that the cost of acquiring property by eminent domain cannot be assessed back against the owner's remaining property, at least in the...
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