Ginsberg v. City of Daytona Beach

• Decision Date: 17 October 1931
• Citation: 103 Fla. 168,137 So. 253
• Parties: GINSBERG v. CITY OF DAYTONA BEACH et al.
• Court: Florida Supreme Court

137 So. 253

103 Fla. 168

GINSBERG v. CITY OF DAYTONA BEACH et al.

Florida Supreme Court

October 17, 1931

En Banc.

Suit by Joseph Ginsberg against the City of Daytona Beach and others. From a decree dismissing the bill of complaint, complainant appeals.

Affirmed.

Syllabus by the Court.

SYLLABUS

When a restraining order is granted on condition that the proper indemnity bond be posted and such bond is not posted as required, the bill of complaint may be dismissed.

When power is vested in a municipality to 'regulate and provide for the construction' of an improvement, it follows (there being no inhibition to the contrary) that the contract to construct and a note to pay for the improvement may be implied as a necessary incident to the power conferred.

A note amounting to nothing more than the evidence of a debt and executed December 29, 1929, is not affected by section 6 of article 9 of the Constitution as amended in November, 1930. Appeal from Circuit Court, Volusia County; A V. Long, Judge.

COUNSEL

Joseph Ginsberg, of Daytona Beach, for appellant.

Harry A. Horn, of Daytona Beach, and Hull, Landis & Whitehair, of Deland, for appellee.

OPINION

TERRELL J.

In August, 1929, the city commission of the city of Daytona Beach entered into a contract with Southern Paving &amp Construction Company to make certain municipal improvements one of which was the construction of a board walk along the ocean shore in front of said city. On completion of the contract, the city, on December 29, 1929, executed its promissory note in payment to Southern Paving & Construction Company in the sum of $75,949.34, due on or before January 1, 1931. A portion of the note was paid and the city made provision in its budget to discharge it in full in April, 1931.

At this juncture, appellant brought his suit to restrain the city from making any further payment on said note. A temporary restraining order was granted conditioned on making an appropriate indemnity bond. The bond was not posted as required. The temporary restraining order was accordingly dissolved and the bill of complaint dismissed. This appeal is taken from that decree.

Error is first assigned on the decree dissolving the injunctional order because of failure to post the required bond.

This court has repeatedly disapproved the practice of granting restraining orders on condition of posting the required bond at a future date, consequently no error was committed in dismissing the bill in this cause when the bond was not given as required. City of Jacksonville v. Dorman, 13 Fla. 390; Hall v. Horne, 52 Fla. 510, 42 So. 383; Savage v. Parker, 53 Fla. 1002, 43 So. 507; Gillespie v. Chapline, 59 Fla. 500, 52 So. 722.

Error is next predicated on the validity of House Bill No. 414 (chapter 15052) Acts of 1931, Laws of Florida, seeking to validate and ratify the contract and note on which this suit is grounded together with all proceedings and acts of the city commission in connection therewith.

We have examined the city charter of the city of Daytona Beach (chapter 10466, Special Acts of 1925), and we think section 15 and other provisions of that act fully warranted the city in making the improvements complained of. When power is vested in a municipality to 'regulate and provide for the construction' of an improvement, it follows (there being no inhibition to the contrary) that the contract to construct and a note to pay for the improvement may be implied as a necessary incident to the power conferred. McQuillon Municipal Corporation (2d Ed.) vol. 5, 926; C.J. 44, 1179; R. C. L. 19, 993. The city was fully authorized by section 98...