City of Miami Beach v. Tenney

• Decision Date: 27 March 1942
• Citation: 7 So.2d 136,150 Fla. 241
• Parties: CITY OF MIAMI BEACH v. TENNEY et al.
• Court: Florida Supreme Court

7 So.2d 136

150 Fla. 241

CITY OF MIAMI BEACH v. TENNEY et al.

Florida Supreme Court

March 27, 1942

Rehearing Denied April 15, 1942.

Appeal from Circuit Court, Dade County; Arthur Gomez Judge.

J. Harvey Robillard and L. A. Schroeder, Jr., both of Miami Beach, for appellant.

J. E Yonge, Stanley Milledge, and Thomas H. Anderson, all of Miami, for appellees.

BUFORD, Justice.

The appeal brings for review orders confirming Master's Report and supplemental report holding special assessments levied for the construction of a street to be invalid and requiring the City to make return to those who had paid special assessments and who filed their claims as required by Order of Court.

There are two questions involved. The first is, whether or not the special assessments were valid; and the second question is, whether or not the suit can be maintained by the named plaintiffs as a class suit for benefit of themselves and all others like situated.

The history of the case is succinctly and clearly stated by the Special Master in his report, which we adopt and quote as follows 'December 9th, 1936, the City of Miami Beach, which will hereafter be referred to as the City, adopted a resolution authorizing the issuance of negotiable bonds, for nine several purposes and in nine several amounts, aggregating Two Million Three Hundred Thousand Dollars subject to the 'authorization of the duly registered and qualified voters of said City, who are freeholders therein.' The questions to be submitted were nine in number, and number 4, which involves the property affected by this suit, was as follows:

"Shall the City of Miami Beach, Florida, issue negotiable coupon bonds in the amount of Two hundred Ninety Thousand Dollars ($290,000.00) with interest at a rate hereafter to be determined, not exceeding 4 1/2% per annum, for the Purpose of Paving Portions of Collins Avenue together with necessary protective works, between Twenty-fourth Street and Thirtieth Street and between Forty-fourth Street and the North City Limits of Miami Beach, Florida'?

On January 11 1937, City Manager Renshaw addressed a letter to the 'Property Owners of Miami Beach' and certain excerpts are quoted:

"An election has been called for January 26, 1937, for the purpose of submitting to the qualified freeholders the question of authorizing the issuance of $2,313,000 in bonds for the purpose of financing improvements which are immediately necessary. Without them, further progress and development will be greatly retarded. A report which was recently submitted to the City Council is attached giving an outline of the proposed projects. * * *'

"This report is being mailed to all property owners regardless of whether or not they can qualify for the election in order that all may be advised concerning the proposed improvements.'

'And from the report, dated November 17th, 1936, which is attached to that letter, I quote:

"Paving.

"There are many streets in the City which require paving to provide for increased traffic. Most of these projects, however, are comparatively small and can be financed from time to time from current funds. One of the projects most urgently needed and one which will be too costly to finance from current funds, is the widening of certain sections of Collins Avenue and the paving from curb to curb of that portion lying between Forty-fourth Street and the north city limits. This street in its present condition is wholly inadequate to handle the traffic. While it is true that the highway has been designated as a part of the State Highway System and might ultimately be paved by the State Road Department, all indications are that the execution of work is so far in the future that it would be extremely detrimental to the City to permit it to remain in its present condition until such time as the State Road Department might see fit to take it over.'

"I recommend that an election be called for the purpose of submitting to the qualified electors who are freeholders, the question of the issuance of bonds for the above projects. * * * Detailed estimates of all of these projects as well as Mr. Pirnie's preliminary report, are available in the files of the Engineering Department.'

'January 26, 1937, the election was held; returns canvassed January 29, 1937, showing that the issuance of said bonds had been approved by a majority of the votes cast in the election. February 5, 1937, resolution was passed authorizing the issuance of the bonds, in form, amounts, dates, maturities, and numbers as therein set forth; The entire issue to be entitled Public Improvement Bonds: the bonds as to the improvement under discussion being further described as 'Collins Avenue Paving Bonds'. The bond recites 'issued by said City for the purpose of paying the cost of certain public improvements in the City,' and 'under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including Chapter 14715, General Laws of Florida, 1931, and the City Charter, being Chapter 7672 of the Sp. Laws of Florida, 1917, and acts amendatory thereof and supplemental thereto, and has been duly authorized and approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in said City participated,' and further 'that provision has been made for the levy and collection of a direct annual tax upon all taxable property within said City sufficient to pay the interest and principal of this bond as the same shall become due, and that the total indebtedness of said City including this bond, does not exceed any Constitutional or statutory limitation thereof,' and further, the ordinance provided:

"Section 4. That in each year while any of said bonds shall be outstanding, there shall be levied on all of the taxable property within said City, a direct annual tax sufficient to pay the principal and interest falling due in the following year upon said bonds, which tax shall be collected as other City taxes and shall be used for no other purpose than the payment of said principal and interest.'

'The bonds were issued, dated April 1, 1937, and validated and confirmed by decree of Circuit Court, and funds were received May 24, 1937, from the sale of said bonds.

'On March 17, 1937, by resolution No. 3899, the City ordered the construction of the following described improvement, to be designated in all proceedings as Highway Improvement H-166, setting forth its intention to proceed under Sections 29 and 30: 'Forty-Fourth Street: From the East line of Collins Avenue to the east line of Indian Creek Drive, and Collins Avenue; from the south line of Forty-fourth Street to the north line of Eighty-seventh Terrace, to be paved, and where heretofore paved, to be re-paved, to a width of forty-nine feet with a bituminous wearing surface on a ten (10) inch rock base, together with necessary drainage, sewer inlets, manholes and catch basins, and improved on both sides with a concrete curb and gutter.' And in said resolution the Engineer was directed to file plans, specifications, estimate of costs as set forth in the resolution and 'the estimated amount to be assessed against each front foot of abutting property.'

'On the same day, to-wit, March 17, 1937, City Engineer complied with the directions of said resolution No. 3899, by filing plans, estimate etc.; and again on the same day, March 17, 1937, resolution 3902 was passed directing the City Clerk to give notice that at a meeting to be held on March 17, 1937, the City Council would hear the 'objections of all persons interested to the confirmation of said resolution ordering said improvement.'

'Total estimated cost and incidental expense for the work (which was a part only of Collins Avenue Paving Project), was set by the Engineer at $193,145.70; front foot assessment at $4,574.

'On March 31, 1937, Resolution No. 3924, passed, reciting publication of notice and to 'receive and hear objections of all persons interested to the confirmation of said resolution ordering said improvement, and no objections having been presented at the time and place aforesaid, Therefore, be it resolved by the City Council of the City of Miami Beach, that the said resolution of said City Council ordering said Highway Improvement H-166, District H-166, be and the same is hereby confirmed; and an appropriation of $193,145.70 is hereby authorized to be set up from Current Fund, the City Council hereby declaring its intention to proceed by letting a contract. Appropriation of $50,300 from Current Fund is hereby authorized for water extensions required in advance of this improvement.'

'On January 19, 1938, City Engineer filed his report showing work started May 14, 1937; work completed December 21, 1937; net cost of improvement $202,236.35, divided:

"Total Frontage Assessment: 32,929,898' at $4,7861145

--$157,606.25

"City's Share:

"Street Frontage 2098.10'

"Outlot " 6208.81'

"Govt. " 1018.00'

---------

"9324.91' at 4.7861145--$44,630.09.

'The Engineer's Certificate, under date of January 19, 1938, was as follows:

"I, the undersigned, City Engineer of Miami Beach, Florida, do hereby certify that the following is a true and correct statement of the cost of the work of Highway Improvement H-166, District H-166, and is composed of the actual cost of the work and the estimated cost of the incidental expenses thereof, with a description of lots or parcels of land liable to liens therefor; the foot frontage assessments, the total assessment chargeable against each lot or parcels, computed according to frontage, And in Proportion to Special Benefits Received, and not in excess of such benefits; and a statement of all other things required by the...