Higbee v. Housing Authority of Jacksonville

• Decision Date: 28 June 1940
• Citation: 143 Fla. 560,197 So. 479
• Parties: HIGBEE et al. v. HOUSING AUTHORITY OF JACKSONVILLE et al.
• Court: Florida Supreme Court

197 So. 479

143 Fla. 560

HIGBEE et al. v. HOUSING AUTHORITY OF JACKSONVILLE et al.

Florida Supreme Court

June 28, 1940

Rehearing Denied Aug. 2, 1940.

En Banc.

Suit by J. H. Higbee and others against the Housing Authority of Jacksonville, Fla., and others for a restraining order or an injunction. From an order dismissing the bill of complaint plaintiffs appeal.

Affirmed.

TERRELL C.J., and BROWN, J., dissenting. Appeal from Circuit Court, Duval County; A. D McNeill, judge.

COUNSEL

J. T. G. Crawford and Philip S. May, both of Jacksonville, for appellants.

Julian E. Fant and Clarence G. Ashby, both of Jacksonville, for appellees.

George C. Bedell and Chester Bedell, both of Jacksonville, amici curiae.

OPINION

CHAPMAN Justice.

On August 29, 1939, J. H. Hgbee, R. L. Slauter, Montague Land Company, Josephine F. Bettelini and N. G. Jennerette filed their bill of complaint in the Circuit Court of Duval County, Florida, against the Housing Authority of Jacksonville, the Commissioners of the Housing Authority of Jacksonville, the City of Jacksonville, the United States Housing Authority, and Nathan Straus, as administrator of the United States Housing Authority, and alleged that plaintiffs were citizens, residents and taxpayers of the City of Jacksonville; owned real property in fee simple situated within a certain described area within the City of Jacksonville, and owned other improved lands located within the City of Jacksonville, and the property is rented to tenants of low income.

The bill of complaint consists of some twenty-five paragraphs raising the constitutionality of Chapter 17981 and Chapter 17983, Laws of Florida, Acts of 1937. The prayer of the bill seeks an order or decree holding the aforesaid acts void and unconstitutional, and, further, that a restraining order or injunction for a number of reasons or grounds be issued against the United States Housing Authority and the Housing Authority of the City of Jacksonville, restraining each of them from proceeding further for the reasons set forth in the bill of complaint. Attached to the bill of complaint, and by appropriate allegations made a part thereof, is a copy of loan contract between the Housing Authority of Jacksonville and the United States Housing Authority and identified as Exhibit 'A'. Also copy of the Co-Operative Agreement between the City of Jacksonville and the Housing Authority of Jacksonville is attached and identified as Exhibit 'B'. Likewise a copy of annual contributions contracts between the Housing Authority of Jacksonville, Florida, and the United States Housing Authority is attached and identified as Exhibit 'C'; and a map or plat of the area involved and located within the City of Jacksonville is identified as Exhibit 'D'.

On October 2, 1939, the Housing Authority of Jacksonville and the named Commissioners thereof filed an answer to the bill of complaint and paragraph 27 thereof contains pertinent allegations, viz:

'Further answering said Bill of Complaint and each and every allegation thereof, these defendants aver that the property described in paragraph numbered One (1) thereof is commonly known in Jacksonville as 'Hansontown' and is the site of the proposed slum clearance project of the defendant Housing Authority of Jacksonville (Florida), a corporation, which project is the subject matter of this suit, and these defendants aver that said property lies within colored school attendance district X, as the same is shown in the report of the Council of Social Agencies of Jacksonville, Florida; that said described area in said Bill of Complaint is inhabited 100% by negro population; that said school district lies within an area which has a greater concentration of population per city block than any other portion of Jacksonville, and that the property proposed to be acquired for this slum clearance project has the greatest concentration of population per city block in said area; that said inhabitants of said school district X and said described property fall within the group having the highest death rate within the City of Jacksonville, and particularly has it the greatest number of deaths in infant stage, from pellagra, tuberculosis and venereal diseases; that numerically speaking the greatest number of commitments for insanity are issued for inhabitants of said district; that said district falls within the group having the greatest percentage of dependency upon direct relief; that greater numbers of juvenile delinquents are apprehended out of said district than any other; that said district's inhabitants furnish the municipal Court with more adult criminal cases per capita for disposition by four times than any other district in Jacksonville; that from the standpoint of education, playgrounds and recreation said district is in the lowest population percentage bracket in Jacksonville.

'These defendants further allege that in 1934, at the suggestion of the Honorable Scott M. Loftin, then President of the American Bar Association, the Jacksonville City Commission appointed a Crime Justice Commission of fifty five members, including judges, lawyers, ministers and business and professional men and women of the City of Jacksonville, for the purpose of investigating conditions in Jacksonville in relation to crime. Two years later they sent in their report stating, with reference to the district in which said project is located, among other things:

"The housing in this area is uniformly bad in spots. In one portion of this area, called Hansontown, the net cost of municipal services exceeds the net income from taxation by $40,000.00 per year. This is a net loss to the taxpayers as a whole.'

'These defendants allege that said finding by said Crime Justice Commission is true in fact as of the present time, and that said section called Hansontown will be wiped out by their slum clearance project.

'Said Crime-Justice Commission recommended, among other things:

"That The City Planning Board be requested to create permanent sub-committees in those districts where needed to devise ways and means for slum clearance with particular reference to better housing and the ultimate elimination of those places which are commonly recognized as crime breeding.'

'These defendants aver that subsequent to the filing of said report the State Legislature of the State of Florida passed Chapter 17981, Laws of Florida 1937, under which the Defendant Housing Authority, of Jacksonville (Florida), a Corporation, was created, and that said defendant now proposes to eliminate these slums from this area of the city of Jacksonville, Florida, and to replace them with a low-rent housing project thereby effecting a saving to the tax-payers of said City and reducing the disease and crime in said City.'

The Housing Authority of Jacksonville and the named commissions thereof filed a joint and several motion to dismiss the bill of complaint on some 26 grounds, and one of them was to the effect that the bill of complaint failed to state grounds for equitable relief. On October 2, 1939, the City of Jacksonville filed a motion to dismiss the bill of complaint on nine grounds, and one thereof was that the bill of complaint stated no ground for equitable relief against the City of Jacksonville.

On November 8, 1939, the Honorable A. D. McNeill, Circuit Judge, made and entered an order granting or sustaining, the two motions to dismiss, and his ruling as stated in his order was bottomed on the case of Marvin as Adm'r v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145, and Lott v. City of Orlando, Fla., 196 So. 313, opinion filed, Sept. 26, 1939.

On November 16, 1939, that plaintiffs below having announced that they would stand by their bill of complaint and refused or declined to amend the same, an order was made and entered dismissing the same, and from said order of dismissal an appeal has been perfected to this court.

It is first contended that the case of Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145, cited in the order of dismissal of the lower court, is not binding on this court, because: (a) no justiciable question was presented by the pleading: (b) the entry of the appeal herein was void on its face; (c) this court was without jurisdiction to enter the order or decree; (d) and for other procedural irregularities the said judgment was void.

The jurisdiction of this court to decide the case of Marvin v. Housing Authority of Jacksonville, supra. On appeal from the Circuit Court of Duval County, Florida, is authorized by Section 5 of Article 5 of the Constitution of Florida, which provides that the Supreme Court of Florida shall have appellate jurisdiction in all cases at law and in equity originating in the Circuit Courts and of appeals from the Circuit Courts in certain enumerated cases. The question as to the appeal therein being void and no justiciable question being presented by the pleading was decided in Marvin, v. Housing Authority of Jacksonville, supra, adversely to the contention of counsel.

It is well established law that all points adjudicated by an appellate court upon appeal or writ of error become the law of the case and are no longer open to discussion or consideration. See Rudisill v. Tyler, 125 Fla. 154, 169 So. 614; Family Loan Co. v. Smetal Corporation, 123 Fla. 900, 169 So. 48; Utley v. City of St. Petersburg, 121 Fla. 268, 163 So. 523. The law of the case is the question of law decided on appeal to courts of ultimate resort and must govern in the same courts and trial courts and will seldom be reconsidered or reversed. See McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323; Lincoln Fire Ins. Co. v. Lilleback, 130 Fla. 635, 178 So. 394.

The grounds or...