Atlantic Coast Line R. Co. v. City of Gainesville

• Decision Date: 22 February 1922
• Citation: 83 Fla. 275,91 So. 118
• Parties: ATLANTIC COAST LINE R. CO. v. CITY OF GAINESVILLE.
• Court: Florida Supreme Court

91 So. 118

83 Fla. 275

ATLANTIC COAST LINE R. CO. v. CITY OF GAINESVILLE.

Florida Supreme Court

February 22, 1922

Suit by the City of Gainesville against the Atlantic Coast Line Railroad Company. From a decree for the complainant and from orders overruling the demurrer to the bill and sustaining exceptions to certain portions of the answer, the defendant appeals.

Decree reversed.

Syllabus by the Court

SYLLABUS

City may charge railroad's property abutting street with proportionate part of paving expense. A city may charge a railroad's property that abuts, fronts, or borders on the side of a street with its proportionate part of the expense of paving the street upon which such property abuts, fronts or borders.

Railroad assessed for paving between rails cannot be further assessed for proportionate part of remaining paving cost. Where a railroad whose tracks run longitudinally through the center of a street has been assessed the cost of paving between the rails of its track and for two feet on either side, it cannot be further assessed for a proportionate part of the residue of the cost of paving the street.

Property abutting street may be taxed for paving without establishing that the property will be benefited. The theory of special assessments for improvements is based upon the doctrine that the property against which the assessment is levied derives some special benefit from the local improvement. In the matter of street paving, it is presumed or assumed that all property abutting on a street to be improved will be benefited, and upon that theory such special assessments are permitted without having to establish that the property will be benefited.

Street improvement assessments are upheld on the ground that adjacent property is enhanced in value equal to amount of assessment. Assessments for street improvements are upheld on the ground that the adjacent property upon which the cost of the improvement is assessed is enhanced in value to an equal amount to the sum assessed against it, and that the owners have received a peculiar benefit which the citizens do not share in common.

Whether abutting property owners will be benefited by street improvements is a legislative question. Whether the owners of property abutting on a street will or will not be benefited by street improvements is a legislative and not a judicial question.

Courts will protect the constitutional rights of landowners from arbitrary legislative action levying special assessments for street improvements. Where there has been an arbitrary and unwarranted exercise of the legislative power to declare that certain property will necessarily be benefited by street improvements, or where there has been some denial of the equal protection of the laws in the method of exercising it the courts are open to protect the constitutional rights of landowners from arbitrary and wholly unwarranted legislative action.

Appeal from Circuit Court, Alachua County; James T Wills, judge.

COUNSEL

R. A. Burford, of Ocala, and W. E. Kay, of Jacksonville, for appellant.

Robert E. Davis, of Gainesville, for appellee.

OPINION

BROWNE C.J.

The city of Gainesville, acting under the provisions of an amendment to its charter approved June 6, 1911, sought to impose upon the Atlantic Coast Line Railroad Company, whose tracks extend longitudinally along a part of West Main street in that city, the burden of paying all the cost of paving between its rails and for two feet on each side thereof, and also a proportionate amount of the remaining cost of the paving. The railroad company voluntarily paid the cost of paving between the rails of its track and for two feet on each side thereof, amounting to over $8,800, but refused to pay the special assessment of $19,624.61 as a proportionate part of the remaining cost. The city thereupon sought to enforce the payment of the $19,624.61, with interest and attorney's fees, by bill in equity.

A demurrer, setting up several defenses, among which is the unconstitutionality of the act of the Legislature amending the charter of the city of Gainesville in 1911, was overruled. The defendant then filed its answer, portions of which were stricken on motion of the complainant. The cause was heard on an agreed statement of facts.

A final decree in favor of the complainant was entered, from which, and the orders overruling the demurrer to the bill and sustaining exceptions to certain portions of the answers, an appeal was taken to this court.

The appellant contends that the amendment to the city charter, and the ordinance enacted under it, whereby it is sought to charge the railroad company with a proportionate part of the expense of paving West Main street in addition to the cost of paving between the rails of its tracks and for two feet on each side thereof, are violative of section 12 of the Declaration of Rights of the Florida Constitution, and of section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it seeks to deprive the defendant of its property without due process of law, and denies to the defendant the equal protection of the laws, and as against the appellant such acts are unconstitutional and void.

If the assignments of error raising these questions are upheld, it would be idle to discuss the other questions presented, as there is no use lopping off branches, when it is necessary to destroy the tree at its root.

The amendment to the charter of the city of Gainesville approved June 6, 1911, from which the city seeks to derive authority for charging the Atlantic Coast Line Railroad with one-third of the cost of the pavement in addition to the cost of paving between its tracks and for two feet on each side thereof, is as follows:

'Every railroad crossing any street shall be required to pay the costs of paving between the rails of each of its tracks and two feet on each side thereof, and where any railroad track or tracks are extended or laid along or side of any street, such tracks shall, for the purposes of this act, be held and treated as property fronting or abutting upon said street; and where any railroad track or tracks are extended or laid longitudinally along any portion of any street, between and within the boundaries thereof, such track shall, for the purposes of this section, be held and treated as property fronting or abutting upon the said street, and entitled to be assessed for such proportion of the costs of grading, paving, or improving said street on each side of such railroad track or tracks as any other property fronting or abutting upon said street, without regard to the character of ownership, title, or possession of the owner or owners of said railroad tracks in the soil upon which the same is laid and constructed.'

In 1912 the city of Gainesville adopted an ordinance providing for the paving of certain parts of West Main street, over which the main line of the Atlantic Coast Line Railroad runs longitudinally in about the center of the street, for the entire distance of the paving.

It also provided:

'In making the assessment of the cost of said paving the Atlantic Coast Line Railroad Company, a corporation using and occupying a railroad track and right of way along the middle of said street, shall pay the cost of the paving between the rails of its said track and for a distance of two feet on each side thereof, and shall also be assessed as the owner of property fronting or abutting upon each side of said street in the same proportion as other property abutting or fronting upon said street shall be assessed for the cost of such work.'

The question here presented does not embrace the right of a city to charge a rail-road's right of way that abuts or borders on a street, with its proportionate part of the expense of paving the street upon which the right of way fronts, abuts, or borders. Such a right seems well established. Peru & Indianapolis R. R. Co. v. Hanna, 68 Ind. 562; Indianapolis & V. Ry. Co. v. Capitol Pav. & Const. Co., 24 Ind.App. 114, 54 N.E. 1076; Paterson & H. R. R. Co. v. City of Passaic, 54 N. J. Law, 340, 23 A. 945; 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. This is questioned in some jurisdictions. Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 89 Wis. 506, 62 N.W. 417, 28 L. R. A. 249.

In Northern Pac. R. Co. v. City of Seattle, supra, which is relied on strongly by the appellee, the railroad company had an abutting right of way varying from 60 to 100 feet in width, with a single track located on the side adjacent to the street. This property, like any other property situated on the side of the street and abutting thereon, would unquestionably be subject to the paving assessment; but it was urged that, as it had been granted to the railroad as a right of way, it was not subject to be so assessed. The court said:

'Except for appellant's occupancy, no suggestion would be made that the land was not benefited by the improvement, or that it would not be subject to the assessment. The particular use of the land cannot affect its liability to assessment. Abutting property cannot be relieved from the burden of a street assessment simply because its owner has seen fit to devote it to a use which may not be specially benefited by the local improvement. The benefit is presumed to inure, not to such present use, but to the property itself, affecting its value.'

After this decision the city of Seattle sought to impose a part of the expense for street improvements upon a street car company whose tracks extended longitudinally along the street, and the case of Northern Pac. R. Co. v. City of Seattle, supra, was relied on as authority. The Supreme Court of...