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

• Decision Date: 01 August 1927
• Citation: 115 So. 669,94 Fla. 347
• Parties: ATLANTIC COAST LINE R. CO. v. CITY OF LAKELAND.
• Court: Florida Supreme Court

115 So. 669

94 Fla. 347

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

Florida Supreme Court

August 1, 1927

Rehearing Denied Jan. 4, 1928.

En Banc.

Suit by the Atlantic Coast Line Railroad Company against the City of Lakeland for an injunction. From an order sustaining a demurrer to the complaint, complainant appeals.

Reversed with directions.

(Syllabus by Ellis, C.J., on rehearing.)

(Syllabus by Strum, J., on rehearing.)

Syllabus by the Court

SYLLABUS

Statute held to authorize municipalities to assess private property for local improvements only on basis of benefits (Laws 1923 c. 9298). Chapter 9298, Laws 1923, providing for a supplemental, additional, and alternative method of making local improvements in cities and municipal corporations, and providing for special assessments for the cost thereof authorizes municipalities to make assessments against private property for local improvements on the basis only of the special benefits flowing to the property assessed on account of such local improvements.

Whether private property is specially benefited by paving or other local improvement is question to be ascertained and established by evidence; benefit to property assessed or to be assessed for local improvement does not rest on mere assertion of municipal authorities (Laws 1923, c. 9298). Whether private property, which is assessed or to be assessed for any part of the cost of a proposed or fully completed public improvement, is in fact specially benefited by the paving of a street on which the property assessed or to be assessed abuts or by any other local public improvement is a question to be ascertained and established as any other fact may be ascertained, that is to say, by competent evidence of probative value sufficient to establish the fact; it does not rest in the mere assertion of the municipal authorities.

Municipalities may use power of taxation only in public interest. The power of taxation may be used by municipalities, when such power is delegated to them, only in the public interest to the end that the necessities and reasonable conveniences for the administration of public affairs may be efficiently but economically executed.

Municipality's power to tax for paving streets and sidewalks rests upon public necessity; existence of special benefits to abutting property from paving of streets and sidewalks must be ascertained by considering use to which property is put or may reasonably be put and resulting increased privileges or facilities. The paving of streets and sidewalks within the territorial limits of cities and towns results from a 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. The existence of special benefits to abutting property is not established by the mere assertion of the municipal authorities, but must be ascertained in each case by consideration of the use to which the property is put or may reasonably be put and the resultant increased privileges or facilities to such use by the local improvement.

Assessment for local improvements is part of system of taxation; power to assess for local improvements, in so far as essential to accomplish objects and purposes of municipal corporations may be said to be implied by charter. Assessment for local improvements is a part of the system of taxation, and, in so far as the exercise of the power by municipalities is essential and indispensable to accomplish the objects and purposes of the corporation, the power may be said to be inherent, that is to say, implied by the charter of incorporation.

Municipalities may not commercialize power of taxation; municipality's power to tax must be exercised only for public necessity or convenience; reasonable cost of local improvement, such as street and sidewalk paving, is measure of benefit to be apportioned between public and abutting property if such benefits exist. Municipalities may not commercialize the power of taxation which must be exercised only for the public necessity or convenience, and in the matter of local improvements, such as street and sidewalk paving, the reasonable cost of such improvement is the measure of its value or benefit which is to be apportioned between the public on the one hand and the abutting specially benefited property, if such benefits exist, on the other.

Legislature may not require each parcel of abutting land to pay all expense of grading and paving street along its front regardless of special benefits. The Legislature may not require that each parcel of land or lot abutting upon a street shall pay the whole expense of grading and paving the street along its front, regardless of the special benefits which may or may not accrue to such property on account of such work.

Constitution does not empower Legislature to authorize municipalities to compel lot owners to build local improvements solely for their benefit. There exists no provision in the Constitution of this state which authorizes, or empowers the Legislature to authorize, municipalities to compel owners of lots to build local improvements solely for the owner's benefit.

Bill to enjoin levying assessments for paving street held not demurrable. A demurrer to a bill of complaint exhibited by the owner of lots, against which a municipality has assessed a tax for the cost of paving a street near to such lots against such municipality to restrain the collection of the assessment should be overruled where the bill alleges that the property assessed does not abut or border upon the street paved, or that the assessment against the lot was for the entire cost of the improvement without reference to the public convenience, necessity, or special benefits to the property, or that the property assessed was not in fact benefited by such improvement, or that it was in fact injured thereby.

Petition for rehearing, not setting forth as overlooked or not considered fact or point involved which was determined by decision, should be denied. Where a petition for a rehearing of a cause in this court does not set forth as overlooked or not considered by this court, any fact or point involved in the litigation and which was determined by the decision the petition should be denied.

Rehearing is authorized only by rule of court; petition for rehearing must set forth concisely particular omission or cause for which judgment is supposed to be erroneous; petition for rehearing is not part of record unless ordered to be made part thereof or unless rehearing is granted. A rehearing is authorized only by rule of court, and a petition for a rehearing must set forth concisely the particular omission or cause for which the judgment is supposed to be erroneous. The petition is not part of the record unless it is ordered to be made a part of it, or unless the rehearing is granted.

Petition for rehearing amounting to practically joinder of issue with court as to correctness of conclusions on points passed on should be denied. A petition for a rehearing which amounts to practically a joinder of issue with the court as to the correctness of its conclusions upon points in its decision which were considered and passed upon, and which merely reargues a cause in advance of a permit from the court for such argument, is violative of the rule and should be denied without further consideration. Jones v. Fox, 23 Fla 462, 2 So. 853; Hull v. Burr, 58 Fla. 475, 50 So. 768; Malsby v. Gamble, 61 Fla. 327, 54 So. 766; Stewart v. Preston, 80 Fla. 479, 86 So. 348; Payne v. Ivey, 83 Fla. 436, 93 So. 143.

Court's judgment, not its opinion or decision, may be attacked by petition for rehearing; petition for rehearing may not be used to obtain explanation of language in opinion; difference of opinion between counsel and court on decision cannot be basis for application for rehearing. It is the judgment of the court, not its opinion or decision, which may be attacked by a petition for a rehearing. It may not be used as a means for obtaining an explanation of the court's language used in its opinion, nor can a difference of opinion between counsel and the court on the decision ever be the lawful basis for an application for a rehearing.

Court should deny or dismiss petition for rehearing merely pointing out phrase or sentence in opinion sought to be clarified or explained. When a petition for a rehearing contains no ground for a reconsideration of the case, but merely points out some phrase of sentence contained in the court's opinion which is sought to be clarified or explained, the petition affords no ground for any action by the court save to deny or dismiss it.

Petition for rehearing, setting up no fact or point overlooked which would affect judgment, may not be made basis for opinion changing rules of law announced in original opinion as controlling judgment. A petition for a rehearing, which sets up no fact or point overlooked by the court in its consideration of a cause which would affect the court's judgment, cannot be made to serve as the basis for an opinion changing the rules of law announced by the court in its original opinion as controlling its judgment.

Principles and rules of law decided in appellate court's opinion are not subject to review and repudiation on petition for rehearing; petition for rehearing must point out some fact or point overlooked, which, if considered, would have made different judgment necessary. Principles and rules of law decided in an appellate court's opinion as pertinent to and controlling of its judgment in the cause are not subject to review and repudiation on petition for a rehearing, which must point out some fact or point overlooked by the court which, if it had considered, would have made a...