City of Venice v. State

• Decision Date: 23 October 1928
• Citation: 96 Fla. 527,118 So. 308
• Parties: CITY OF VENICE v. STATE.
• Court: Florida Supreme Court

118 So. 308

96 Fla. 527

CITY OF VENICE v. STATE.

Florida Supreme Court, Division B.

October 23, 1928

Statutory proceeding by the City of Venice against the State to validate certain improvement bonds. Decree denying the petition, and petitioner appeals.

Reversed with directions.

Ellis C.J., and Whitfield, J., dissenting.

Syllabus by the Court

SYLLABUS

Construction of streets within municipality is public purpose; obligation to pay for paving already constructed under valid contract is direct obligation of city. There is nothing which is more universally recognized as a public purpose than is the construction of streets within a municipality. Therefore it is too well settled to admit of question that, where bonds sought to be issued are for the purpose of producing money with which to pay for public improvements which have already been constructed under a valid contract between the city authorities and a contractor, or contractors, the obligation to pay for the paving which has been constructed is the direct obligation of the city of Venice, assumed by the city of Venice through its proper officers.

Levy of tax for public purpose is not invalidated because incidentally benefiting private corporations (Const. art. 9 § 7). While under the Constitution 'no tax shall be levied for the benefit of any chartered company of the state' (section 7, art. 9), yet, if a public improvement that is afforded by tax levies does merely incidentally benefit private corporations along with other persons, the Constitution is not violated in levying the tax for the public purpose, for the law contemplates that corporations shall participate in the burdens and benefits of taxations within appropriate limitations.

Whether bonds to be issued are for municipal purpose may not be arbitrarily determined by legislation without regard to organic limitation; statutory determination of what is appropriate municipal purpose for which bonds may be issued will not be disturbed. Whether the object for which bonds are to be issued is a municipal purpose may not be arbitrarily determined by legislation without regard to organic limitations; but a statutory determination of what is an appropriate municipal purpose will not be disturbed by the courts, where the purpose designated by the statute is in fact municipal in its nature, and no provision or principle of organic law is violated in such designation.

Appeal from Circuit Court, Sarasota County; Paul C. Albutton, judge.

COUNSEL

Giles J. Patterson, of Jacksonville, and Burket & Fish, of Sarasota, for appellant.

Perry, Williams & Williford, of Sarasota, for the State.

OPINION

BUFORD J.

A statutory proceeding was instituted in the circuit court in and for Sarasota county, Fla., by the city of Venice, to validate $321,000 of municipal improvement bonds of the city of Venice. The town of Venice was created by chapter 11776, Laws of Florida, Extraordinary Session of 1925, and the act contained a provision that same should go into effect July 1, 1926, and that the first officials provided for in the act should be appointed by the Governor. The act was approved by the Governor on November 30, 1925, and the officials, it appears from the record, began to function under their appointment by the Governor in December, 1926. The Legislature of 1927, by chapter 13478 (Sp. Act), changed the name from the town of Venice to the city of Venice. Under the charter, the town of Venice was authorized to construct paved streets, and the city of Venice acquired the same authority. The city of Venice, pursuant to ordinance of each case, paved sixteen streets of the city or sixteen different parts of streets of the city under separate ordinances. Contracts were let by the proper municipal officers of the city for paving these streets. The work was performed, and the streets accepted. Assessments were levied against the abutting property, and the liens for such assessments were entered in the street improvement lien book in accordance with the provision of the chater. Certain objections were filed to the assessments which were passed upon by the council in accordance with the provision of section 4, art. 1, of the charter. Certain modifications were made in the assessments; all assessments were reduced 10 per cent., and reductions were entered in the street improvement lien book. This 10 per cent. reduction was placed as a charge against the municipality to be paid from the general fund of the municipality in accordance with the provisions of section 4 of article 1 of the charter. After all this was done, the city council passed an ordinance providing for the issuance of municipal bonds in the sum of $321,000 for purpose of paying for said improvements. This case is for the validation of the bonds provided for in the Ordinance numbered 113.

It appears from the record that a demurrer was filed to the petition; that no other pleadings were filed; that a date was set for hearing and a large volume of testimony was taken before the court, the major portion of which appears to be irrelevant and immaterial, and none of which appears to have been in support of any issue presented by the pleadings. it does appear in the record, however, that the B. L. E. Realty Corporation had sold a number of lots to individuals which were located in Venice, and that in the contract for the sale of such lots there was included a provision, as follows:

'Whereas, the seller is now developing a tract of land as shown upon the plat hereinbefore described and intends to further develop and improve said tract and to open up and lay out streets, roads and ways as shown on said plat, and to install, without cost to purchaser, electric lights and water assessible to the property herein agreed to be conveyed, and to pave the streets and lay sidewalks and curbing adjacent to said property and to beautify the streets and parkways with trees and ornamental shrubbery in keeping with the general development, and is, therefore, desirous of subjecting the lands covered by said plat to covenants, agreements, easements, restrictions and charges.'

And it further appears that the officers of B. L. E. Realty Corporation had given assurance to the city officials that the realty corporation would pay the assessments which had been made asainst all property which it had sold under contracts containing the above-quoted provision.

It was contended that the issuance of the bonds by the municipality was and is in confict with section 7 of article 9 of the Constitution of the state of Florida, which is as follows:

'No tax shall be levied for the benefit of any chartered company of the State, nor for paying interest on any bonds issued by such chartered companies, or by counties, or by corporations, for the above mentioned purpose.'

The judgment of the circuit court held: 'The proceedings are in violation of section 7 of article 1 of the Constitution of the State of Florida * * * and that the bonds sought to be validated are not primarily for the benefit of the public,' and the petition to validate them was denied on authority of Bradentown v. State, 88 Fla. 381, 102 So. 556, 36 A. L. R. 1297, and Childs et al. v. Dougherty et al., 73 Fla. 72, 75 So. 783.

Neither of the cases mentioned in the decree have a binding application to the case here under consideration. In this case the record shows that the municipality was authorized to pave its streets and to assess abutting property for the payment of such improvements, and was authorized to issue bonds for such purpose. There is nothing which is more universally recognized as a public purpose than is the construction of streets within a municipality. Therefore it is too well settled to admit of question that the bonds sought to be issued are for the purpose of producing money with which to pay for public improvements which have already been constructed under a valid contract between the city authorities and a contractor, or contractors, and that the obligation to pay for the paving which has been constructed is the direct obligation of the city of Venice, assumed by the city of Venice through its proper officers.

It appears to us that the provision heretofore quoted, appearing in the several contracts made between a private corporation and certain purchasers of lots, has no bearing whatever on the validity of the bond issue. Those contracts and the provisions thereof are matters between the contracting parties, and, if either party has breached its contract, and the other party is damaged by such breach, the party so injured may seek relief in the courts, if relief will not otherwise be accorded.

It also appears to us that the assurance of B. L. E. Realty Corporation that it will pay the assessments which are levied or may be levied against property which it has sold under the contracts above mentioned has no bearing on the validity of the bonds. If it may be said to have any bearing at all, it at most only shows that it is the attitude of the B. L. E. Realty Corporation to hold purchasers of lots from it harmless as against the assessments which have been made for this improvement. The law applicable to this feature of the case before us has been clearly enunciated by this court in the case of Hunter v. Owens, 80 Fla. 812, 86 So. 839, in which Mr. Justice Whitfield, delivering the opinion of the court, says:

'While under the Constitution 'no tax shall be levied for the benefit of any chartered company of this State' (sec. 7 art. 9), yet if a public improvement that is afforded by tax levies does merely incidentally benefit private corporations along with other persons, the Constitution is not violated in levying the tax for the public purpose, for the law contemplates that corporations...