Cosby v. Jumper Creek Drainage Dist.

• Decision Date: 08 July 1941
• Citation: 3 So.2d 356,147 Fla. 705
• Parties: COSBY v. JUMPER CREEK DRAINAGE DIST.
• Court: Florida Supreme Court

3 So.2d 356

147 Fla. 705

COSBY v. JUMPER CREEK DRAINAGE DIST.

Florida Supreme Court

July 8, 1941

Rehearing Denied Aug. 1, 1941.

En Banc.

Appeal from Circuit Court, Sumter County; J. C. B Koonce, judge.

Carroll W Fussell, of Bushnell, for appellant.

Phillips Thompson & McMullen, of Clearwater, for appellee.

CHAPMAN Justice.

On September 23, 1939, the Jumper Creek Drainage District filed its bill of complaint in the Circuit Court of Sumter County, Florida, against T. A. Cosby et al., for the purpose of foreclosing delinquent drainage taxes against the N. 1/2 of N.W. 1/4, Section 34, Tp. 21, South, Range 23, East, located in the Jumper Creek Drainage District of Sumter County, and the plaintiff asserted a lien against the above described 80 acres for the approximate sum of $2,763.43 as delinquent drainage taxes.

The Jumper Creek Drainage District was created and established on December 4, 1922, by a decree of the Circuit Court under the provisions of Chapter 6458, Acts of 1913, Laws of Florida. The District by resolution levied a tax in the total sum of $940,500 and it was apportioned to the various lands situated in the district and each tract was assessed in proportion to the benefits received, as determined by the officials of the District, and the levy was made on the 31st day of October, 1925.

On April 1, 1940, T. A. Cosby answered the bill of complaint and recited that on July 20, 1925, he accepted a mortgage on the 80 acres supra in the sum of $1,107.90 and the same was recorded among the public records of Sumter County on July 24, 1925, in Mortgage Book 11 at page 455, appearing in the office of the Clerk of the Circuit Court of Sumter County. Prior to the acceptance of the mortgage, the answering defendant consulted the officers of Jumper Creek Drainage District and the plan of reclamation was discussed and the proposed benefits flowing therefrom to the lands considered as applicable to the lands supra. The drainage plans disclosed a proposed ditch from the main ditch or canal on to and over the lands supra, and when completed by the District would make the 80 acres of land accessible and usable for farming purposes and in this manner benefits would accrue to the property. The answering defendant relied upon the representations as made by the officials of the Jumper Creek Drainage District, and on July 20, 1925, accepted a mortgage and first lien on the property supra.

The answer recites further that the 80 acres of land involved is surrounded by a natural high rise of land which affords a natural barrier, thereby preventing overflow waters and ponds thereon from flowing or draining from the 80 acres and that without the construction of the ditch the lands could not be used for agricultural purposes; that the ditch was never constructed, or the promises of the officers of the Jumper Creek Drainage District observed or carried out, and without the construction of said ditch, which had theretofore been promised, no benefits whatsoever accrued to said 80 acres of land and the assessment of $2,763.43 against said 80 acres of land is unjust, arbitrary, discriminatory and in effect is taking property of the answering defendant without due process of law the arbitrary assessment imposes a burden which in effect means the denial of the equal protection of the law.

The lower court entered an order sustaining a motion to strike the material allegations appearing in paragraphs 2, 3, 4, 5, 6 and 7 of the answer and entered a final decree for the plaintiff and decreed the sale of the 80 acres supra for the payment of the $2,763.43, and an appeal has been perfected to this Court.

Counsel for appellant contends that the allegations of the stricken answer tendered issues of law and fact, viz: that the delinquent drainage taxes in the total sum of $2,763.43, asserted as a lien against the 80 acres supra is predicated on invalid assessments because they were arbitrary, discriminatory, oppressive, impose a burden which in effect is a denial of the equal protection of the law and deprives him of property without due process of law. The appellant was denied the right and privilege of adducing testimony to sustain the material allegations of the stricken answer.

The case of Willis v. Special Road & Bridge Dist. No. 2, Osceola County, 73 Fla. 446, 74 So. 495, 496, involved Chapter 6868, Acts of 1915, providing a road district and authorizing the issuance of bonds. The case was before the Court on the validation of the bonds, when this court in part said:

'A purpose of the statute authorizing special road and bridge districts to be formed in counties is to avoid unfair tax burdens upon persons and property so remote from roads constructed by general county taxation as to receive no advantage therefrom commensurate to their tax contributions for such purposes. In this view, the statute contemplates the formation of districts with some fair reference to the advantages accruing therefrom to the persons and property bearing the tax burdens assumed for the construction and maintenance of such roads and bridges. Of course, considerable latitude was contemplated and should be allowed in forming districts to meet the varying situations that may arise; but an arbitrary inclusion of large areas of territory in a district for purposes of special taxation, when such territory is very remote and perhaps disconnected from the location of roads on which the greater part of the bond money is to be expended, so as to unreasonably and arbitrarily impose taxes upon property and persons, is clearly a violation of the intent and purpose of the statute; and relief against such arbitrary action taken under the statute may be had in the courts by due course of procedure. * * *'

The validity of Chapter 8888, Special Acts of 1921, creating a road district situated in Clay County, Florida, and authorizing special assessments and the issuance of bonds for the construction of the road therein named, was involved in the case of Paul Brothers v. Long Branch and L. S. R. and B. Dist., 83 Fla. 706, 92 So. 687, and the act was held arbitrary and oppressive as a tax burden on property of...