City of Hollywood v. Davis

• Decision Date: 01 August 1944
• Citation: 19 So.2d 111,154 Fla. 785
• Parties: CITY OF HOLLYWOOD v. DAVIS et al.
• Court: Florida Supreme Court

19 So.2d 111

154 Fla. 785

CITY OF HOLLYWOOD v. DAVIS et al.

Florida Supreme Court

August 1, 1944

Rehearing Denied Sept. 20, 1944.

Appeal from Circuit Court, Broward County; George W Tedder, judge.

T. D Ellis, Jr., of Hollywood, for appellant.

Byrd &amp McCaughan, of Fort Lauderdale, for appellees.

CHAPMAN, Justice.

Fred J. Davis, Jr. and Fred W. Holland filed their bill of complaint against the City of Hollywood in the Circuit Court of Broward County, Florida. The relief sought was a decree holding invalid designated special assessment liens previously entered by the city against abutting property owners. Fred J. Davis, Jr., having paid no part of the special assessments against his property, sued as a representative of all property owners similarly situated, while Fred W. Holland, having paid all special assessments against his property, sued as a representative of all other property owners similarly situated.

The bill of complaint asked for a restraining order against the collection by the City of Hollywood of any of the special assessment liens; that the special assessment liens be decreed invalid and a refund, with interest, be ordered in behalf of the various property owners having previously made payments to the city of the special assessment liens; that the Court on final hearing decree to counsel for plaintiffs a reasonable attorney fee.

It was alleged, among other things, that the City of Hollywood, pursuant to Resolution adopted by the city officials under date of June 30, 1941, providing for the construction of certain street paving improvements, failed and otherwise omitted to substantially comply with the requirements of the City Charter, being Chapter 12877, Special Laws of Florida, Acts of 1927. The Resolution No. 1087, providing for the improvement of designated streets, and Resolution No. 1088 and Resolution No. 1095, each passed and adopted by the City Commission of the City of Hollywood, are alleged to be void, not in conformity with the Charter of the City of Hollywood, nor did the City of Hollywood acquire liens against abutting property owners to the streets so improved, and is therefore an unlawful taking of property for reasons, viz.:

(1) Section 3 of Article 21 of Chapter 12877, supra, does not authorize Resolution No. 1087; (2) the improvement was made by day labor and not by contract; (3) the Resolution No. 1087 failed to indicate the location of the improvements by terminal points and routes as required by Section 5 of Article 21 of the Charter; (4) the Resolution failed to designate a convenient and understandable method of improving the property; (5) when the Resolution was adopted, there was not on file with the city clerk plans and specifications of the improvements and estimated costs thereof; (6) when Resolution No. 1095 was adopted, plans and specifications required by Resolution No. 1087, or an estimate of the costs of the improvements, were not on file with the city; (7) the city failed to keep a book and record therein of these improvements; (8) that no sufficient record of the liens as asserted has been maintained by the city; (9) an assessment roll when the work was completed was not prepared as required by Section 8 of Article 21; (10) the work has not been ratified by designated city officials; (11) next streets, highways and avenues adjoining the streets improved were not assessed with any part of the costs of improvements; (12) the costs of the improvements were made from the General Revenue Fund of the city instead of borrowed money or specially pledged money for the repayment of which said special assessment liens were to be pledged.

An answer was filed by the City of Hollywood and the material allegations of the bill of complaint were either admitted or denied. The several reasons presented by the plaintiffs below for the invalidity of the special improvement liens were each specifically denied in the answer. Testimony was taken on the issues made by the pleadings. Many Exhibits were offered by the respective parties and placed in the record. The Chancellor on final hearing held that the plaintiffs below had established the material allegations of the bill of complaint and granted the relief prayed. The City of Hollywood appealed.

We do not have involved here the issuance of bonds on the part of the City of Hollywood by an approval of a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing within the City of Hollywood participated as required by Section 6 of Article 9 of the Florida Constitution. It appears from the record that the City of Hollywood did not have a special assessment fund, but had a general operating fund in cash of approximately $31,103.44 out of which the costs of the improvements would be paid. A portion of this fund had been earmarked for this work on October 1, 1941, the beginning date of the fiscal year. The improvement work was completed by the city in the early portion of 1942.

The City Commission of Hollywood, on September 29, 1941, passed and adopted Ordinance No. 502. This Ordinance made appropriation for the fiscal year 1941-1942, based on the budget estimate of expenditures and revenues. This Ordinance earmarked the sum of $15,000 and made the amount available for improvement of streets and avenues within the City of Hollywood for the fiscal year beginning October 1, 1941, and ending September 30, 1942.

The City Commission passed and adopted Resolutions authorizing the improvements of the streets of the city, and material portions of Resolution No. 1087 are, viz.:

'Be It Resolved by the City Commission of the City of Hollywood, Florida:

'Section 1. That the construction of the below described local improvement, namely, a Highway Improvement, hereby designated A-45, is hereby ordered to be made under Section 3, of Article XXI of the City Charter on the following named streets, towit: Arthur Street, Cleveland Street, Oklahoma Street, McKinley St., Nebraska St., Nevada St., Roosevelt St., Taft St., Carolina St., Wilson St., Harding St., Coolidge St., Missouri St., Scott St., Lee St., New Hampshire St., all being in the north Beach Section of Hollywood; Adams Street from 26th to 28th Avenue; Sherman Street from 18th Avenue to 21st Avenue; said improvements to consist in constructing rock resurfacing six inches in depth and oil and sand surface twenty five feet in width; the property deemed to be specially benefited by said improvement and to be specially assessed for the cost thereof is hereby declared to be all lots or parcels of land situated within one-half ( 1/2) the distance from the street, excluding alleys, on which said improvement is constructed, and the next street if within six hundred feet (600), otherwise only that property within the first three hundred (300) feet of the street on which the improvement is constructed, and said property shall comprise a local improvement district designated hereby as District A-45.

'Section 2. That all resolutions or parts of resolutions in conflict herewith are hereby expressly repealed.'

Material portions of Resolution No. 1088 are, viz.:

'Resolution No. 1088

'Approving Plans, Specifications and Estimates for Local Improvements A-45, and Directing the City Clerk to Publish a Notice of the Public Hearing to Hear the Objections, If Any, to the Confirmation of Resolution No. 1087.

'Whereas, on June 30, 1941, Resolution No. 1087 ordering local improvement A-45 was adopted by this Commission, and Whereas, in conformity with Section 5, of Article 21, of the Charter of the City, the City Manager has had prepared by the City Engineer and filed with the City Clerk plans and specifications for the improvements ordered by said Resolution No. 1087, as well as an estimate of the cost thereof, showing the estimated amount of costs and incidental expense to be assessed against the property especially benefited; Arthur, Cleveland, Oklahoma, McKinley, Nebraska, Nevada, Roosevelt, Taft, Carolina, Wilson, Harding, Coolidge, Missouri, Scott, Lee and New Hampshire Streets, all being in the north Beach Section of Hollywood; Adams Street from 26th to 28th Avenue; Sherman Street from 18th Avenue to 21st Avenue;

'Now, Therefore, Be It Resolved by the City Commission of the City of Hollywood, Florida:

'Section 1. That the plans and specifications of Local Improvement A-45, ordered by Resolution No. 1087 as well as the estimates of the costs thereof, as filed with the City Clerk be and the same are hereby approved, and the City Clerk be and she is hereby directed to publish a notice in conformity with Paragraph C, Section 5, Article 21, of the Charter of the City of Hollywood, Florida.'

Material portions of Resolution No. 1095 are, viz.:

'Resolution No. 1095

'Confirming Resolution No. 1087

'Whereas the City Commission at a meeting held at 9 o'clock September 8, 1941, after legal notice given and after the filing with the City Clerk of plans, specifications and estimates of cost thereof, heard all objections presented by interested persons to the confirmation of Resolutions Nos. 1087 and 1093 passed and adopted by the City Commission, ordering local improvements A-45 and A-46, and no objections were sustained, now, therefore,

'Be It Resolved by the City Commission of the City of Hollywood, Florida; that

'Resolutions Nos. 1087 and 1093 adopted by the Commission, be and the same are hereby confirmed.

'Passed and adopted this 8th day of September, 1941.'

Published for the issues of August 20 and 27, 1941, in a weekly newspaper of Broward County, Florida, to-wit: The Hollywood Sun was the notice of Highway Improvement by the City of Hollywood, and is, viz.:

'Notice is hereby given that the City Commission of the...