Atlantic Coast Line R. Co. v. City of Winter Haven

• Decision Date: 18 November 1933
• Citation: 151 So. 321,112 Fla. 807
• Parties: ATLANTIC COAST LINE R. CO. v. CITY OF WINTER HAVEN (three cases).
• Court: Florida Supreme Court

151 So. 321

112 Fla. 807

ATLANTIC COAST LINE R. CO. v. CITY OF WINTER HAVEN (three cases).

Florida Supreme Court, Division A.

November 18, 1933

Three separate suits by the City of Winter Haven against the Atlantic Coast Line Railroad Company. From adverse decrees defendant appeals.

Reversed with directions. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

A. E. Kay, of Jacksonville, and T. Paine Kelly, of Tampa, for appellant.

Henry L. Jollay, of Winter Haven, for appellee.

OPINION

DAVIS Chief Justice.

These three appeals by the Atlantic Coast Line Railroad Company present the question whether or not, under the circumstances set up in an affirmative answer interposed to bills of complaint brought to foreclose certain unpaid street paving assessment liens imposed by the city of Winter Haven, the railroad company is entitled to judicially resist the foreclosure of the liens, in so far as they are sought to be enforced under an application of the so called 'front foot' rule as a measure of determining the benefits to the burdened railroad property, occasioned by the street paving improvement.

The material portions of the railroad company's answer, to which a general demurrer ^[1] interposed by complainant was sustained by the chancellor, were allegations to the following effect: That, in making the assessment upon which the city's lien was entered, the city had not undertaken to assess the special benefits received by the railroad company's property on the basis of, and giving consideration to, the peculiar character and use to which such assessed property had been dedicated by the railroad company as a public service corporation; that defendant's business was that of an interstate railroad carrier affected with a public interest, but the city had made its assessment of such property simply by dividing the total cost of the street improvement by the total lineal front footage of the railroad property on the street improved, thereby applying to the assessment of the railroad property the same 'front foot' rule that it had followed in making assessments against owners of other kinds of property abutting, abounding, adjoining, or contiguous to the street improvement, such as that devoted to use for mercantile businesses and the like; that the railroad company had duly protested against such manner of assessment of its railroad properties, and had duly notified the city that it would contest the legality of any certificate of indebtedness or other assessment which the city might make by its arbitrarily following the 'front foot' rule; that the city, through its governing body, did not make any attempt to ascertain the special benefits, if any, resulting to the railroad property by reason of the making of the street improvement, but had sought to impose upon the railroad company, as an abutting property owner, as assessment for benefits solely in proportion to its front foot-age on the street being improved, despite the fact that all of the assessed railroad company's abutting property was used exclusively for railroad purposes and solely for a right of way for the carriage of goods, wares, and merchandise as a public carrier upon its line of railroad from Richmond, Va., to Bartow, Fla., and beyond; that the improved streets and avenues intersected the railroad company's right of way at right angles, and that the railroad company had caused to be built and constructed, entirely at its own expense, crossings of an adequate nature at said intersections; that the improved streets and thoroughfares in question were the main public thoroughfares of the city of Winter Haven, and that, although the railroad company's right of way properties abutted on the improved streets, the nature of the railroad property was such that it was not susceptible of special benefits as contemplated in the city's scheme of assessments for the costs of the improvements to the streets, hence the liens predicated on such assessments were and are unenforceable and incapable of being foreclosed against the railroad company.

The bill of complaint shows that the liens were imposed under chapter 11300, Special Acts of 1925, Laws of Florida, and chapter 9298, Acts of 1923. The bill of complaint was not defective in form or substance to set up an equitable right under such statutes. Therefore the defendant's general demurrer to the bill of complaint was properly overruled.

So the question to be decided on this appeal recurs on the proposition: 'Did the railroad company's answer to the bill of complaint show an equitable defense to it sufficient to withstand the general demurrer to such answer filed by the complainant city.'

The finally accepted statement of the law of this state on the subject of municipal special assessments of railroad properties for part of the costs of street improvements, made under chapter 9298, Acts of 1923, supra, is to be found in the opinion written by Mr. Justice Strum for this court in the course of his rendition of this court's ultimate decision on the merits of the appeal dealt with in the case of Atlantic Coast Line R. Co. v. City of Lakeland, 94 Fla. 347, text 386, 115 So. 669, text 683.

In that case it was held that the 'front foot' plan of apportionment of cost of municipal street improvements, assessed against abutting properties alleged to have been specially benefited by the improvements, is, within itself, a valid exercise of the legislative power to make and spread such special assessments, and that the plan may be utilized even as against the abutting properties of railroad companies. But it was also held by way of limitation on the power admitted to exist that such plan, when actually applied to railroad properties, would be recognized by the courts as conclusive only so long as the special and peculiar benefits inuring to the railroad property required to bear the burden of a 'front foot rule' assessment are substantially proportionate and equal to the charge laid against such property to pay for the improvement, and provided that, in the utilization of the 'front foot' plan, and in its execution, the essential requirements by the Constitution and of the statutes are observed, and no abuse of the delegated power appears.

The view usually taken on the subject as to what property is subject to special assessment for public improvements is the one from the standpoint of enhancement in the market or utility value of the real property affected. If specially assessed property is, or may be, enhanced in value by the improvement when made, it is subject to an assessment in proportion to the benefits it will likely receive from the execution of the work. And, in determining probably the work. And, in determining probably the locality as a whole in which the improvement is to be made may be taken into consideration in making an apportionment of benefits to the individual properties situate therein. It is on this theory that a railway contiguous to a proposed street improvement has been, in almost all the American jurisdictions, held subject to imposition of special benefit assessments for its proportion of the costs of constructing special street improvements, since it is recognized that a line of railroad serving a municipality whose population will likely be enlarged, and whose volume of business may be increased through such improvements, will necessarily receive an indirect benefit through enhancement in the value of its line in that locality, although the direct benefit to the immediate contiguous property itself may be comparatively small. Davis v. City of Clearwater, 104 Fla. 42, 139 So. 825; Atlantic Coast Line R. Co. v. City of Gainesville, 83 Fla. 275, 91 So. 118, 29 A. L. R. 668. See, also, note to Minneapolis, St. P. & S. Ste. M. R. Co. v. Minot, 37 A. L. R. 221; 25 R. C. L. 117; Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; Northern Pac. R. Co. v. City of Seattle, 46 Wash. 674, 91 P. 244, 12 L. R. A. (N. S.) 121, 123 Am. St. Rep. 955; Chicago, M. & St. P. R. Co. v. City of Janesville, 137 Wis. 7, 118 N.W. 182, 28 L. R. A. (N. S.) 1124, and notes.

It is for the Legislature and not the judiciary to determine whether the expense of a public improvement shall be borne by the whole community, or by the district or neighborhood immediately benefited. Raleigh v. Peace, 110 N.C. 32, 14 S.E. 521, 17 L. R. A. 330; Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270. And the power to determine whether or not the property assessed to pay the cost of a local improvement is benefited by such improvement is legislative, not judicial. Speer v. Mayor, etc., of City of Athens, 85 Ga. 49, 11 S.E. 802, 9 L. R. A. 402; Sheley v. Detroit, 45 Mich. 431, 8 N.W. 52; Moody & Co. v. Spotorno, 112 La. 1008, 36 So. 836; King v. City of Portland, 38 Or. 402, 63 P. 2, 55 L. R. A. 812. And generally the determination of a city governing authority that abutting property on the line of a strict improvement, assessed by authority of statute in proportion to its front footage, has received special benefits equal to the assessments, is conclusive against all collateral attacks. Pittsburgh, C., C. & St. L. Ry. Co. v. Taber, 168 Ind. 419, 77 N.E. 741, 11 Ann. Cas. 808; Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; Allen v. City of Galveston, 51 Tex. 302; Daily v. Swope, 47 Miss. 367.

But it is also equally well recognized that a local assessment may so transcend the limits of equality and reason that its exaction would cease to be a tax or contribution, and become extortion and confiscation, in which cases it then becomes the duty of the courts to protect the person or corporation assessed from robbery under color of a better name. Allen v. Drew, 44 Vt. 174; Sands v. City of Richmond, 31...