Henderson v. Town of Lake Placid

• Citation: 132 Fla. 190,181 So. 177
• Parties: HENDERSON et al. v. TOWN OF LAKE PLACID.
• Decision Date: 08 January 1938
• Court: United States State Supreme Court of Florida

181 So. 177

132 Fla. 190

HENDERSON et al. v. TOWN OF LAKE PLACID.

Florida Supreme Court

January 8, 1938

Rehearing Denied Feb. 23, 1938.

Leave to File Extracordinary Petition for

Leave to File Extraordinary Petition for

Tax suit by the Town of Lake Placid against Leon L. Henderson and others. Motions to dismiss the bill and to strike certain paragraphs thereof were dismissed, and defendants appeal.

Affirmed.

ELLIS C.J., and BROWN, J., dissenting. Appeal from Circuit Court, Highlands County; W. J. Barker, judge.

COUNSEL

Edwin Brobston, of Tampa, and Benj. H. Webster, of Bartow, for appellants.

Ives &amp Kinsey, of Sebring, for appellee.

OPINION

BUFORD Justice.

The appeal is from orders dismissing motions to dismiss bill of complaint and to strike certain paragraph of the bill.

The purpose of the suit was to require an accounting and judicial determination of the amount of the taxes due by the respondents to satisfy levies for debt service. The bill alleged in effect that stated tax levies had been made in accordance with the provisions of chapter 12990, Sp.Acts of 1927. That certain levies were so made before that legislative act was adjudged invalid, while certain other of the involved levies were made after the date of such adjudication. That certain bonded indebtedness had been created under the provisions of that act, and that other indebtedness had accrued while the municipality had operated under the act. That judgments had been obtained against the municipality on obligations incurred by the municipality while operating under the provisions of chapter 12990, which judgments were outstanding and unpaid, and that a peremptory writ of mandamus had been issued out of the United States District Court of the Southern District of Florida requiring the complainant to collect taxes with which to provide funds with which to meet certain obligations of the municipality created while it operated under that act.

Two of the grounds of the motions to dismiss are:

'2. That the bill of complaint shows upon its face that the decree of the Supreme Court has ousted the Town of Lake Placid from jurisdiction over the lands described in said bill of complaint.

'3. That this proceeding is brought upon authority of chapter 12990, Laws of Florida, Special Acts of 1927, approved June 6, 1927, which said act is unconstitutional, null and void as being in violation of the due process of law provisions of the State and Government Constitutions [Const.Fla.Declaration of Rights, § 12 and Const.U.S. Amend. 14] which has so been declared by the Supreme Court of Florida to be unconstitutional.'

See State ex rel. Landis v. Town of Lake Placid, 121 Fla. 839, 164 So. 531.

The orders appealed from should be affirmed on authority of the opinion and judgment of this court in the case of State of Florida v. Town of Holly Hill, 174 So. 818, filed June 3, 1937, and cases there cited.

It is so ordered.

Affirmed.

WHITFIELD, TERRELL and CHAPMAN, JJ., concur.

ELLIS, C.J., and BROWN, J., dissent.

On Leave to File Extraordinary Petition for Rehearing.

PER CURIAM.

An extraordinary petition has been presented but will not be filed unless leave is granted.

It is in effect suggested:

(1) That the court failed to consider the fact that chapter 18643, Sp.Acts of 1937, approved on referendum August 17 1937, failed to validate or confirm taxes levied after the passage of chapter 12990, Sp.Acts of 1927, but prior to the adoption of chapter 18643, Sp.Acts of 1937; and failed to consider the fact that after the judgment of ouster in quo warranto there existed no law either general or special authorizing the levy of taxes upon lands of appellant, either prior to or subsequent to the judgment of ouster; and that such taxes were levied and are attempted to be collected in violation of sections 3 and 5, article 9, Constitution;

(2) That the city and the plaintiff were parties to the quo warranto proceedings, and plaintiff's lands were described in the proceedings and a judgment awarded against the municipality as to the lands, making the judgment res adjudicata as to the city.

(3) That in denying the petition for rehearing the opinion and judgment in the case of Ocean Beach Heights, Inc. v. Brown-Crummer Inv. Co., 58 S.Ct. 385, 82 L.Ed. ----, filed by the Supreme Court of the United States January 17, 1938, was overlooked.

The opinion referred to has not been overlooked. It is not applicable here, as shown by its words. In the Ocean Beach Heights Case, or Town of North Miami Case, the electors in a community on the west side of Biscayne Bay, in Dade county, Fla., incorporated a town called Miami Shores, now called North Miami. The attempted boundaries of the town included an area on the east side of Bay Biscayne noncontiguous to the...