Burnett v. Greene

• Court: Florida Supreme Court
• Writing for the Court: WHITFIELD, J.
• Citation: 144 So. 205,105 Fla. 35
• Parties: BURNETT, Tax Collector, et al. v. GREENE et al.
• Decision Date: 17 June 1931

144 So. 205

105 Fla. 35

BURNETT, Tax Collector, et al.
v.
GREENE et al.

Florida Supreme Court

June 17, 1931

On Rehearing August 6, 1932.

En Banc.

Suit by C. W. Greene and another against J. M. Burnett, Tax Collector, and others. Decree for complainants, and defendants appeal.

Reversed and remanded.

ELLIS, J., and BUFORD, C.J., dissenting. [105 Fla. 37] Appeal from Circuit Court, Hillsborough County; D. J. Jones, judge.

COUNSEL

O. K. Reaves, Herbert S. Phillips, E. E. Graves, and Knight, Thompson & Turner, all of Tampa, R. E. Kurtz, of Fort Myers, and Giles J. Patterson, of Jacksonville, for appellants.

Henry E. Williams, of Tampa, and George C. Bedell, of Jacksonville, for appellees.

OPINION

WHITFIELD, J.

This suit was brought to quiet the title to lands in a drainage district against assessments for drainage purposes, upon allegations of the invalidity of the statute and of the proceedings thereunder by which bonds were issued and assessments of taxes made to pay the bonds, the proceeds of the bonds [144 So. 206] being used to drain lands in the district. In effect the prayer is that the establishment of the drainage taxing district and the assessments made be adjudged invalid and a cloud upon complainants' title, that collections of the drainage taxes be permanently enjoined, for a temporary injunction against such drainage tax collections, and for general relief. A temporary restraining order was affirmed. Burnett v. Green, 97 Fla. 1007, 122 So. 570, 69 A. L. R. 244.

The decree rendered on final hearing from which this appeal was taken, is set out in part in the opinion of Mr. Justice ELLIS. Such decree holds the statute to be invalid, that all the proceedings had and the bonds issued under the statute are invalid, that the proceedings for the validation of the bonds are invalid, that the benefits [105 Fla. 38] actually accruing to the owners of the lands in the district by the drainage operations amount to $753,125.50 and no more, and the decree vacates and declares null and void the decree establishing the drainage district; adjudges that the right and interest of the several defendants, known or unknown, in and to the lands in the district, is a proportionate several interest in each of those of them holding bonds issued by said district in an equitable lien for $753,125.50 in the proportion that each bound holding bears to the entire bond issue; the drainage tax records and books are canceled, and the collection of the drainage taxes permanently enjoined, with provisions for ascertaining the respective individual rights in the equitable lien decreed to be on the lands for the proportionate amounts allowed on the total bond issue.

The drainage district was established in substantial compliance with the requirements of the statute, therefore if the statute is valid, the decree should be reversed for appropriate proceedings. The record does not clearly establish illegality in all of the bonds issued even though the legality of particular transactions and the validity of specific assessments as made may be challenged if the right to do so has not been lost by waiver, acquiescence, or otherwise.

The validity of chapter 6458, Acts of 1913, the general drainage law, section 1451(1098) et seq., Comp. Gen. Laws 1927, has been adjudicated in McMullen v. Newmar Corporation, 100 Fla. 566, 129 So. 870; Duval Cattle Co. v. Hemphill (C. C. A.) 41 F. (2d) 433. See, also, Pinellas Park Drainage Dist. v. Kessler, 69 Fla. 558, 68 So. 668; State ex rel. v. Watters, 75 Fla. 584, 78 So. 671; Towns v. State ex rel. (Fla.) 135 So. 822, decided at this term.

Section 11, article 5, of the Constitution provides that 'the Circuit Courts shall have * * * original jurisdiction of' [105 Fla. 39] stated matters 'and of such other matters as the Legislature may provide.'

Chapter 6458 confers upon the circuit court 'original and exclusive jurisdiction' to determine upon appropriate hearing whether 'the establishment of the said drainage district and the improvements to be made thereunder will be for the advantage of the owners of the real property therein or that the same would be in the interest of the public health, convenience or welfare.' Sections 2, 3. The statute is a general law designed to operate throughout the state wherever defined conditions exist. The authority given to the circuit court by the statute is not to determine what the law shall be or upon what subjects the law shall operate; but it is merely to ascertain whether in a particular locality the conditions exist with reference to the subjects upon which the general law complete in itself may operate by its own force. It being impracticable for the Legislature to make these determinations itself, and such determinations not being an exclusive legislative power, the function to so determine, being administrative or quasi-judicial in its nature, may under section 11, article 5, Constitution, be conferred upon the circuit courts within the limitations defined in the act without violating the provision of article 2 of the Constitution that 'no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others' with exceptions immaterial here.

Where the taxing district is not established by the Legislature itself, but is to be formed by procedure under the statute, appropriate notice and opportunity to be heard must be given to afford due process of law; and such procedure may be in a judicial tribunal when not forbidden by organic law. 19 C.J. 615; McMullen v. Newmar Corp., supra; Houck v. Little River Drainage Dist., 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266. If the procedure is in an administrative [105 Fla. 40] tribunal, it is subject to judicial review. If the procedure is in a judicial tribunal, it has the attributes accorded to it by the law.

There is nothing in the Constitution forbidding a statute to authorize a finding by the circuit court that the establishment of a drainage district 'will be for the advantage of the owners of the real property therein,' or that the district 'would be in the interest of the public health, convenience or welfare.' Advantage or benefit to the owners of real estate in the area afford the considerations and reasons for establishing drainage districts under the authority of statutes. Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A. L. R. 488.

The decree is reversed, and the cause remanded for appropriate proceedings.

TERRELL, BROWN, and DAVIS, JJ., concur.

BUFORD, C.J., and ELLIS, J., dissent.

CONCURRING

DAVIS, J. (concurring).

I concur in the views expressed by Mr. Justice WHITFIELD in the majority opinion and in the conclusion that the decree appealed from should be reversed. The act under which the Interbay drainage district was created is chapter 6458, Acts of 1913. That act, as has been pointed out, has been expressly held to be constitutional by this court, by the Federal Court of Appeals for this district, and its constitutionality has in effect been affirmed by the Supreme Court of the United States, which has refused to review or reverse the views expressed by the Circuit Court of Appeals for the Fifth Circuit. If the act is constitutional, as has been held, it must mean something more than a mere scrap of paper. It provides how a special tax district shall be created and who shall act as the agent of the state in giving effect to the legislation involved in the question. The act of creation is no doubt legislative in character, but where a district is created after a finding of fact [105 Fla. 41] required by law to be made to give effect to a legislative act, the finding so made must be and is judicial in character. Being judicial in character, such finding must be accorded the same weight as against a collateral attack as is accorded to any other finding of fact made by a judicial officer. In fact, this principle of law has been expressly recognized in a recent bank case where this court reversed on a writ of error the finding of the circuit court of Leon county in a case involving the 'freezing' of bank deposits. There the power to freeze was undeniably a part of the legislative police power, but putting it into effect upon a certain contingency of fact was judicial in character, and this court so recognized and acknowledged its judicial character by denying a motion to dismiss the writ of error taken to review the court's judgment and by later affirming the judgment itself. See Amos v. Conkling, 99 Fla. 206, 126 So. 283.

Undoubtedly the Legislature could have created the Interbay drainage district directly without the consent of the local authorities. But it also had power to provide for its creation upon a certain contingency. The principal case in the United States on this subject is that of Houck v. Little River Drainage District, 239 U.S. 254, 36 S.Ct. 58, 60, 60 L.Ed. 266, decided November 29, 1915. In that case it was declared by Mr. Justice Hughes of the United States Supreme Court that: 'The Legislature, unless restricted by the state Constitution, can create such districts directly, or, as in this case, it may provide for their institution through a proceeding in the courts in which the parties interested are cited to appear and present their objections, if any.'

The question of whether or not the statutory conditions in controversy existed, which incidentally is the question of whether or not the legislative power operates in the particular case, is a judicial one. It is so far [105 Fla. 42] judicial that the taxpayers have the constitutional right to a hearing on such question, or the act itself will be declared unconstitutional. This was expressly decided in the now famous Texas Road Bond Case, Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330.

Now if the taxpayer under the statute had a constitutional right to a hearing, which hearing was required...