Forbes Pioneer Boat Line v. Board of Com'rs of Everglades Drainage Dist.

• Decision Date: 30 May 1919
• Citation: 77 Fla. 742,82 So. 346
• Court: Florida Supreme Court
• Parties: FORBES PIONEER BOAT LINE v. BOARD OF COM'RS OF EVERGLADES DRAINAGE DIST.

82 So. 346

77 Fla. 742

FORBES PIONEER BOAT LINE v. BOARD OF COM'RS OF EVERGLADES DRAINAGE DIST.

Florida Supreme Court

May 30, 1919

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Suit by the Forbes Pioneer Boat Line against the Board of Commissioners of Everglades Drainage District. Demurrer to declaration sustained, final judgment for defendant, and plaintiff brings error. Reversed and remanded, with instructions to overrule the demurrer, etc.

Whitfield J., dissenting.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

Matters of fact dehors the pleadings are not within the province of a demurrer.

An allegation in a declaration that payment of toll for passage through the lock of a canal was made upon the wrongful and unlawful demand of a governmental agency is a sufficient showing of involuntary payment, especially in the absence of a specific ground in the demurrer raising such point.

The board of commissioners of Everglades drainage district is a public quasi corporation, and, as such, a governmental agency of the state for certain definite purposes, having such authority only as is delegated to it by law.

In order to levy and collect a toll upon a public canal, there must be a grant from the sovereign either in express terms or by necessary implication.

The law establishing the Everglades drainage district, creating the board of commissioners of such district, and defining its powers (chapter 6456, Laws of Florida 1913, as amended by chapter 6957, Laws of Florida 1915, and as further amended by chapter 7305, Laws of Florida 1917), neither expressly nor by fair inference authorizes the levy and collection by the board of commissioners of Everglades drainage district of a toll for the use of the lock in the North New River Canal constructed by it and its predecessors.

COUNSEL Carson, Willard & Knight, of Miami, and Thomas B. Norfleet, of Ft. Lauderdale, for plaintiff in error.

Glenn Terrell, of Tallahassee, for defendant in error.

OPINION

GIBBS Circuit Judge.

The Forbes Pioneer Boat Line, a corporation, has sued the board of commissioners of Everglades drainage district, a corporation, for recovery of certain alleged tolls which it says were wrongfully demanded of and received from it by the defendant in error. In the circuit court the following declaration was filed:

'Forbes Pioneer Boat Line, a Corporation Plaintiff, v. Board of Commissioners of Everglades Drainage District, a Corporation, Defendant.

'Forbes Pioneer Boat Line, a corporation, by its attorneys, sues the board of commissioners of Everglades drainage district, a corporation, for that on, to wit, August 1, 1913, the said plaintiff then and there being a corporation, and as such was engaged in the business of transporting by boat passengers and freight from Ft. Lauderdale, Fla., to Rita Island and other places in said state, and from Rita Island and other places to Ft. Lauderdale, Fla.; that in the conduct of its said business it became and was necessary for the boats of plaintiff to pass over, through, and upon the waters of North New River Canal, which said canal, under and by virtue of an act of the Legislature of the state of Florida, approved June 6, 1913, was and is for certain purposes under the supervision and control of the defendant; that said defendants and their predecessors have caused to be constructed across and upon said canal a certain lock in Broward county, Fla., within the Everglades drainage district for the purpose, among other things, of controlling and regulating the flow of water through said canal; that on, to wit, August 1, 1913, the said defendant, through its servants, agents, and employés, wrongfully demanded of and received from the plaintiff the sum of $6.50 for toll for passage through the said lock of one of its boats, and has since that date, upon many and divers occasions, and up to the present time, regularly made charges and collected tolls from the plaintiff upon each and every boat belonging to plaintiff which passed through said lock in the amount of 10 cents per lineal foot and in the aggregate sum of $864; that said sum so collected, and each item thereof, was wrongfully and unlawfully levied and collected.

'Wherefore plaintiff brings its suit and claims $1.250 damages.'

To this declaration the defendant demurred.

The demurrer was sustained, and final judgment entered in favor of the defendant. To this judgment the plaintiff applied for and obtained a writ of error.

The single assignment of error is predicated upon the action of the court in sustaining the demurrer of the defendant.

It is unnecessary to set forth the several grounds of demurrer, only two of which can be considered, to wit:

'(1) That it does not appear from the averments of said declaration that the toll charges for the use of said canal by said plaintiff is unlawful or unauthorized.

'(2) That said canal was constructed primarily for the purpose of draining the lands through which it runs and making it habitable and fit for use, and said canal is maintained by a tax or assessment on such lands imposed for this purpose, as appears from the statute referred to in said declaration; that the use of said canal for navigation is incidental and subject to regulation by said defendant; that said plaintiff has no right to its free use and enjoyment for commercial purposes.'

The other grounds introduce matters of fact which do not appear upon the face of the declaration, and are, therefore, not within the province of a demurrer, and cannot be considered. State ex rel. F. A. Garrison, appellant, v. County Commissioners of Putnam County, 23 Fla. 632, 637, 3 So. 160, citing Gould's Pleading, c. 2, § 43, and chapter 9, § 2. See, also, 6 Ency. Pl. & Pr. (6) p. 298.

It is also fundamental that we can only consider those grounds properly stated in the demurrer. For this reason we cannot consider the right of plaintiff to recover, because it has failed to allege that the payments made by it were not made voluntarily. State ex rel. Kittel v. Jennings, 47 Fla. 302, 35 So. 986.

The sole question presented, therefore, is the legality of the action of the board of commissioners in demanding and receiving tolls. We are not concerned with a canal built wholly on private land by the owner thereof, but with a canal built through public and private lands by a governmental agency.

The law establishing the Everglades drainage district, creating the board of commissioners of such district, and defining their powers is chapter 6456, Laws of Florida 1913, as amended by chapter 6957, Laws of Florida 1915, and as further amended by chapter 7305, Laws of Florida 1917.

This act is entitled:

'An act to establish the Everglades drainage district in this state and define its boundaries, to create a board of commissioners for said district and to define its powers, authorizing the construction of canals, drains, dikes, reservoirs and other works for the reclamation and benefit of the lands embraced in said district and to levy assessments of taxes upon the lands embraced in such district and to provide for are as follows: to enforce the collection of such assessments and to authorize the board of commissioners of said district to borrow money and to issue bonds and dispose of the same, to procure money to carry out the provisions of this act, to prevent injury to any works constructed under this act, and to provide a penalty for violating such provision.'

And the sections pertinent to this inquiry are as follows;

'Section 1. That for the purpose of draining and reclaiming the lands hereinafter described and protecting the same from the effects of water, for agricultural and sanitary purposes, and for the public convenience and welfare, and for the public utility and benefit, a drainage district is hereby established to be known and designated as the Everglades drainage district, the territorial boundaries of which shall be as follows, to wit: [Here follows boundaries of lands embraced in district, which it is unnecessary to enumerate.]

'Sec. 2. The Governor, the comptroller, the state treasurer, the Attorney General and the commissioner of agriculture of the state of Florida, and their successors in office, are hereby constituted the governing board of said district and shall be designated the 'Board of Commissioners of Everglades Drainage District,' with all the powers of a body corporate including the power to sue and be sued by said name in any court of law or equity, to make contracts and to adopt and use a common seal and alter the same at pleasure, to hold, buy and convey such personal or real property as may be necessary to carry out the purposes of this act, to appoint such agents and employés as the business of the board may require, and to borrow money and to issue bonds therefor, as hereinafter provided, to enable the said board to carry out the provisions of this act.

'Sec 3. The said board is hereby authorized and empowered to establish and construct a system of canals, drains, levees, dikes, dams, locks and reservoirs of such dimensions and depth and proportions as in the judgment of the said board is deemed advisable to drain and reclaim the lands within said drainage district, and to maintain such canals, drains, levees, dikes, dams, locks and reservoirs in such manner as said board shall deem most advantageous. Said board is hereby authorized and empowered to clean out, straighten, widen, change the course and flow, alter or deepen any ditch, drain, river, water course, pond, lake, creek, or natural stream in or out of said district that may be deemed necessary by said board to be done to facilitate the drainage and reclamation of the territory in said district; to...