City of Winter Haven v. A. M. Klemm & Son

• Decision Date: 12 December 1939
• Parties: CITY OF WINTER HAVEN et al. v. A. M. KLEMM & SON.
• Court: Florida Supreme Court

192 So. 646

141 Fla. 75

CITY OF WINTER HAVEN et al. v. A. M. KLEMM & SON.

Florida Supreme Court

December 12, 1939

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Suit by A. M. Klemm & Son against the City of Winter Haven and others to enjoin the collection of municipal taxes upon certain land. From a decree which denied motion to strike protions of, and to dismiss, amended bill of complaint, defendants appeal and plaintiff cross-assigns error.

Affirmed in part and reversed in part, and cause remanded with directions.

COUNSEL

Henry Sinclair, of Winter Haven, for plaintiffs in error.

Touchton & Crittenden, of Winter Haven, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

A taxpayer brought suit against the city and its officials to enjoin the collection of municipal taxes upon only forty acres of land, the same being a small portion of a large area of rural land from which the jurisdiction of the city had been ousted by a Circuit Court quo warranto judgment rendered pursuant to the opinion and judgment of this Court on writ of error in State ex rel. v. City of Winter Haven, 114 Fla. 199, 154 So. 700, 701. In the cited case it is held that:

'The title' to Chapter 11301, Sp. Acts of 1925 'together with the provisions of the body of the act, is sufficient to include within the territorial limits of the city of Winter Haven all of that territory which immediately prior to the passage of the act was included within the territorial limits of Florence Villa but it was ineffective to include any of that territory beyond the limits of Florence Villa and beyond the limits of the city of Winter Haven as described in chapter 11299, Sp. Acts 1925.

'Accordingly, the judgment should be reversed, with the directions that a judgment of ouster be entered against the respondents as to all territory lying outside of the territory embraced within the city of Winter Haven as established by chapter 11299 and the territory embraced in the town of Florence Villa at the time of this annexation by chapter 11301.

'It is so ordered.'

On the former appeal in this equity suit, City of Winter Haven v. Klemm & Son, 132 Fla. 334, 181 So. 153; Id., 133 Fla. 525, 182 So. 841, it was in effect held that the scope of the quo warranto judgment of ouster of the Circuit Court rendered pursuant to the opinion and mandate of this Court in State ex rel. v. City of Winter Haven, 114 Fla. 199, 154 So. 700, was confined to the adjudication that the lands directed by this Court in State ex rel. v. City of Winter Haven, 114 Fla. 199, text pages 202, 203, 154 So. 700, to be excluded from the jurisdiction of the City of Winter Haven, were so excluded becuase the inclusion of the added rural lands in the land descriptions in Chapter 11301, without legally sufficient title to the Act, violated section 16, Article III, constitution.

It is also stated in the opinion in the former appeal herein, City of Winter Haven v. Klemm & Son, 132 Fla. 334, 181 So. 153:

'The bill of complaint seeks relief upon the ground that plaintiff's land was never legally within the city limits, and not upon the ground that plaintiff's land has not received and cannot receive any possible benefits from the municipality or from its public improvements, as in City of Sarasota v. Skillin , 178 So. 837; State v. City of Avon Park, 108 Fla. 641, 149 So. 409. ' 132 Fla. text page 358, 181 So. text page 163.

'If the lands were and are of such a nature and so located as to make their taxation for municipal purposes violate property rights secured by organic law, or if under the dominant law the lands are not subject to municipal taxation, that may be duly adjudicated in appropriate proceedings in which questions of the powers of the municipality as well as of waiver or estoppel of the land owners may be presented for determination.' 132 Fla. text page 382, 181 So. text page 173.

On the former appeal herein this Court discussed some principles of de facto municipal jurisdiction; but did not adjudicate the asserted liability of the illegally added rural lands for municipal operating purposes prior to the judgment of ouster entered under the appellate decree of this Court in State ex rel. v. City of Winter Haven, 114 Fla. 199, 154 So. 700, for the reason that such question was not adequately presented. Upon proper allegations the facts as to municipal governmental benefits and as to municipal public improvement benefits might be different. Whether there was waiver by the city or acquiescence by the taxpayer was not considered. The former decrees herein were severally reversed and the cause remanded for further appropriate proceedings by due course of law, so that all relevant facts may be shown by appropriate proceedings.

After the cause was remanded to the Circuit Court, a second amended bill of complaint was permitted to be filed. There were interlocutory proceedings and orders on the second amended bill. Defendants moved to dismiss the second amended bill of complaint on numerous grounds, mostly challenging in some degree the legal sufficiency of the allegations to authorize the relief prayed. There was also by leave of the court a motion 'to strike singly and collectively each and every of the paragraphs of the second amended bill of complaint.'

The Court rendered the following decree:

'Order on Motion to Dismiss And Motion to Strike

'The above and foregoing cause came on for hearing upon a motion to dismiss the bill of complaint and on motion to strike parts of the bill of complaint, and it appearing that certain amendments to the bill of complaint were allowed at the time of the hearing and that the motions were allowed to stand to the bill as amended and that the defendants were allowed to file a special motion to strike all that portion of the bill of complaint involving all of the taxes described therein which were assessed for bond debt service, the cause was thereupon presented to the Court by the solicitors for the respective parties for adjudication on the motions.

'After considering same, the Court came to the conclusion that under the decision of the Supreme Court of Florida, the bill of complaint is without equity as to all those portions of the taxes therein described which were assessed for bond debt service and that as to those portions of the taxes described in the bill of complaint which were assessed for purposes other than bond debt service, the bill of complaint as finally amended contains equity in that the bill of complaint alleges that said property received no benefits or improvements of any kind from the City of Winter Haven, and that the bill of complaint would be without equity as to the operating taxes themselves, except for the various allegations of lack of benefits which are contained in the amended bill and which were not contained in the original bill of complaint in which the Supreme Court held there was no equity in its last decision in this case.

'This Court has arrived at the foregoing conclusions, based solely on this Court's construction of the opinion of the Supreme Court of Florida in its decision heretofore made in this cause, reversing the lower Court and holding, among other things, that there was no equity in the bill of complaint.

'Wherefore, it is hereby ordered, adjudged and decreed that the motion of complainant to dismiss the bill of complaint as finally amended, be and the same is hereby denied for the reason that said motion is general and, as hereinbefore set out, this Court considers there is some equity in the bill.

'It is further hereby ordered, adjudged and decreed that the motion of defendants to strike all of the bill of complaint insofar as the same may affect or attempt to question the validity and right of enforcement or that portion of the taxes as described in the bill of complaint which are for bond debt service be and the same is hereby granted.

'As to the motion to strike each and all of the paragraphs of the bill of complaint, it appears that it is virtually impossible to segregate the respective paragraphs of the bill of complaint as to which apply to operating taxes and which apply to bond debt service, and for that reason this Court has suggested the filing at this time of the general motion to strike all that portion of the bill which concerns or attempts to declare invalid and unenforceable that portion of the taxes therein described which are for bond debt service, and that the said motion so filed at this time should be granted, and that the motion to strike each of the paragraphs be denied for the reason that it is virtually impossible to pass on same, and grant any portion of same so as to put into effect the opinion of this Court.

'It is therefore hereby ordered, adjudged and decreed that the motion of the defendants to strike severally each of the paragraphs in the bill of complaint be and the same is hereby denied and such portions of the said bill as might properly be stricken under the opinion of the Court under the said motion to strike severally each of the paragraphs of the bill of complaint, are stricken under this Court's order sustaining the motion to strike generally all portions of the bill of complaint insofar as they affect bond debt service.

'Done and ordered at Chambers in Lakeland, Florida, this the 26th day of September, A.D. 1938.

'H. C. Petteway, Judge of the Circuit Court.'

Defendants appealed and assign as errors the granting of leave to file the second amended bill and the denial of motions to strike portions of, and to dismiss, the bill of complaint. Cross assignments of error were filed.

Among many other allegations that need not be discussed here, the second amended bill of complaint states:

'(11) That the lands...