Finlayson v. Town of Monticello

• Decision Date: 17 May 1939
• Citation: 137 Fla. 697,189 So. 21
• Court: Florida Supreme Court
• Parties: FINLAYSON et al. v. TOWN OF MONTICELLO.

189 So. 21

137 Fla. 697

FINLAYSON et al. v. TOWN OF MONTICELLO.

Florida Supreme Court, Division A.

May 17, 1939

Suit by the Town of Monticello, a municipal corporation, against Mary P. Finlayson and D. A. Finlayson, her husband, to foreclose liens for assessments for improving and constructing streets and sidewalks. From an order denying a motion to dismiss the bill of complaint, the defendants appeal.

Order affirmed.

TERRELL C.J., dissenting. Appeal from Circuit Court, Jefferson County; J B. Johnson, judge.

COUNSEL

Davis &amp Davis, of Madison, and D. A. Finlayson, of Monticello, for appellants.

Frank C. Pelot, of Monticello, and Leroy Collins and W. P. Shelley, Jr., both of Tallahassee, for appellee.

OPINION

THOMAS Justice.

This appeal is taken from an order denying a motion to dismiss the bill of complaint filed by city of Monticello seeking the foreclosure of liens for assessments against property to cover a part of the cost of improving and constructing streets and sidewalks. The liens were claimed under Chapter 9298, Laws of Florida, Acts of 1923 (Secs, 3022-3042, C.G.L.1927).

Appellants insist that the bill is defective, hence the order erroneous, because of failure to show proportionate benefits to abutting property equal to the lien thereon; omission of allegations of the filing of plans and specifications as the law requires; and laches. We will discuss the questions presented in that order.

The act (section 1) authorizes any city or town to improve or construct streets and sidewalks and assess all or any part of the cost 'by levying and collecting special assessments on the abutting, adjoining, contiguous, or other specially benefited property'. It is then provided that:

'Special assessments against property deemed to be benefited by local improvements * * * shall be assessed upon the property specially benefited by the improvement in proportion to the benefits to be derived therefrom, said special benefits to be determined and prorated according to the foot frontage of the respective properties specially benefited by said improvement, or by such other method as the governing body of the municipality may prescribe.' (Italics supplied.) Section 2.

In 1925, according to the bill of complaint, the governing authority of Monticello resolved to construct certain streets and sidewalks and assess one-third of the cost against abutting property on each side of the street according to front footage. Pursuant to the resolution, an assessment roll was prepared, published and, after notice to property owners, equalized and approved. The improvements were completed more than ten years ago and the assessments were made payable in ten annual installments secured by liens on the property adjacent to the improvements. The relief asked is foreclosure of the liens to satisfy the debt due the city.

Apropos the first objection to the bill, there is an absence of information in the bill about and actual declaration by the governing body of the city that property abutting on a street or sidewalk and charged with one-third the cost of its construction would be specially benefited to a particular degree by the improvement, but this seems to be rather unimportant when all of the circumstances reflected by the record are considered. The construction was completed more than ten years ago and nearly thirteen years have passed since the property owners were notified of the proposed action of the city and the assessment roll was published and equalized. At this late date, and after all of the ten yearly assessments are in arrears, defendants seek defeat of the foreclosure because the city did not declare that property abutting a street would benefit by a pavement in direct proportion to one-third the expense of such pavement.

There is a distinction between the facts with which we are dealing and those discussed in City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97, 104, where it was attempted to validate bonds to evidence an indebtedness for money used in construction of curbs, gutters, storm sewers, catch-basins, manholes and accessories. The method of assessment, so far as we can learn from the record before us, was entirely dissimilar to the one used by the City of Monticello. The two kinds of improvement, streets and a drainage system, are essentially different, as was pointed out by Mr. Justice Terrell, when he said:

'Assessments for the cost of a paving program can be justified only on the basis of special and positive benefits accruing to the lands improved, while assessments for the cost of a storm sewer program may be justified on the basis of direct, indirect, or incidental benefits; the test being whether or not lots and lands remote from the storm sewer are connected with, or will drain into, it. Thomas v. Gain, 35 Mich. [155], 156, 24 Am.Rep. 535; Auditor General v. O'Neill, 143 Mich, 343, 106 N.W. 895; Meggett v. City of Eau Claire, 81 Wis. 326, 51 N.W. 566. We do not hold that instances could not arise in which the physical and other conditions would be such that it would be fair and equitable to assess benefits and costs for a paving program and a storm sewer, catch-basin, manhole, and accessory program on identical and abutting lands, as was done here, but we do not think that this case falls in that class.' 117 So. text 104.

The matter was presented at a final hearing while here we have before us the bill and the motion. Adverting to Chapter 9298 supra, one of the methods authorized in determining special benefits is proration...