Howarth v. City of De Land

• Decision Date: 20 December 1934
• Parties: HOWARTH et ux. v. CITY OF DE LAND.
• Court: Florida Supreme Court

158 So. 294

117 Fla. 692

HOWARTH et ux. v. CITY OF DE LAND.

Florida Supreme Court

December 20, 1934

En Banc.

Suit by the City of De Land against Casper Howarth and wife. From orders overruling a general demurrer to the bill of complaint, granting complainant's motion to strike defendants' entire answer, and entering a decree pro confesso for want of an answer, defendants appeal.

Affirmed in part, and reversed in part. Appeal from Circuit Court, Volusia County; M G. Rowe, Judge.

COUNSEL

Stewart & Stewart, of De Land, for appellants.

D. C Hull, of De Land, for appellee.

OPINION

PER CURIAM.

Casper Howarth and Mary S. Howarth have prosecuted these three appeals from certain orders entered by the circuit court of Volusia county in favor of the appellee, city of De Land, a municipal corporation. By agreement and upon motion granted by this court, the three appeals have been consolidated for consideration and disposition by one opinion as if the same were only one case to be decided.

The orders appealed from: (1) An order overruling (under the old practice then in effect) a general demurrer to complainant's bill of complaint; (2) an order granting a motion by complainant to strike the defendants' answer in its entirety; (3) order entering decree pro confesso for want of an answer after the order had been entered striking the answer on file.

The city of De Land filed its bill of complaint against the defendants in which it alleged that by chapter 9735, Special Acts of 1923, Laws of Florida, it was enacted that the city of De Land should pave certain streets, avenues, and highways in said city, including the street on which the particular property involved was located. Under the plan proposed it was provided that one-third of the cost of such paving, including the cost of such reasonably necessary and incidental work as curbing, gutters, drainage facilities, and the like, all engineering and inspection costs, and the costs of issuing certain bonds authorized by said chapter, should be borne by the city, with the other two-thirds to be assessed against the abutting property owners.

Similar allegations concerning the construction of a system of sewerage and provisions for the payment of one-third of its cost by the city and two-thirds by the abutting property owners, as enacted by chapter 9735, supra, are made. In subsequent paragraphs of the bill, other provisions of chapter 9735 deemed pertinent by the complainant are described.

In the concluding paragraphs of the bill it was averred that the city paved the particular streets alluded to and constructed the system of sewerage and assessed the proper portion of the cost thereof, the amount being named, against certain described real estate, as it was authorized to do under chapter 9735, and that such assessments are a lien on the land described for the amount assessed, together with interest, as given in chapter 9735, as well as a reasonable attorney fees and costs.

It is alleged that the city at all times complied with the ordinances of said city and the laws of Florida that all hearings were duly and regularly held; all notices duly and regularly given and published; and that the defendant, though requested several times so to do, has not paid the assessment against him, and that all things and times have elapsed necessary to entitle the city to enforce the liens mentioned. A reasonable attorney's fee and abstract costs incident to complainant's suit were sued for in the bill.

To each bill the defendants demurred, setting up, among other things that chapter 9735 was repealed by chapter 11466, Acts of 1925 (Extraordinary Session), Laws of Florida; that chapter 9735 is in violation of section 16, art. 3, Constitution of Florida; that it was also unconstitutional for other enumerated reasons; and that the bill was too vague, indefinite, and uncertain in its terms.

The demurrer was overruled. Thereupon the defendants filed an answer, in which answer they again insisted on the repeal of chapter 9735 by the subsequent enactment of chapter 11466 and the unconstitutionality of chapter 9735. The answer denied many of the allegations of the bills and averred that on advice of counsel the defendants were 'denied permission' 'to see the books and contracts connected with the paving and sewerage here concerned,' and set forth also many general allegations such as that 'the Mayor and City Commission wickedly and designedly and corruptly' 'kept the contract from the records,' spoke of 'autocratic, illegal and unlawful expenditures of said money,' and said that 'the said City Commission of De Land, instead of complying with the law, have been and are now a bunch of 'grafters' who had at city election marked more than two thousand ballots and stolen the city government from the people.'

A motion to strike the entire answer was sustained, a decree pro confesso entered, and the defendants appealed.

The appellants urge as one ground for reversal that chapter 9735, Special Acts of 1923, violates section 16 of article 3 of the Constitution of Florida. It is well settled, however, that the title of an act need not embrace every detail of the legislation contained in it in order to meet the requirements of section 16 of article 3 of the State Constitution. All that is required is that the propositions embraced in an act shall be fairly and naturally germane to that recited in the title. City of Jacksonville v. Basnett, 20 Fla. 525; Florida East Coast R. Co. v. Hazel, 43 Fla. 263, 31 So. 272, 99 Am. St. Rep. 114; State v. Bryan, 50 Fla. 293, 39 So. 929. Or, as expressed in other cases, 'matters properly connected with the subject are not required to be expressed in the title.' Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, L. R. A. 1918E, 639; Smith v. Chase, 91 Fla. 1044, 109 So. 94. If the title to an act fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. State v. Bryan, supra; Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 So. 874; Butler v. Perry, 67 Fla. 405, 66 So. 150 (affirmed 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672); Ex parte Pricha, 70 Fla. 265, 70 So. 406; Hinely v. Wilson, 91 Fla. 815, 109 So. 468; In re DeWoody, 94 Fla. 96, 113 So. 677; Singleton v. Knott, 101 Fla. 1077, 133 So. 71.

The Legislature must be allowed a wide latitude in enacting law as respects constitutional restrictions regarding title. State ex rel. Oglesby v. Hand, 96 Fla. 799, 119 So. 376. Every reasonable doubt should be yielded in favor of the validity of a provision in a legislative act as being properly connected or embraced in the title of the act. Williams v. Dormany, 99 Fla. 496, 126 So. 117. Only in a plain and obvious case will the court nullify a statute as not being within the purpose and scope of the subject expressed in the title and matter properly connected therewith. Williams v. Dormany, supra; Jerome H. Sheip & Co. v. Amos, 100 Fla. 863, 130 So. 699. And where the statute's title is by any reasonable intendment sufficiently broad to include the statute's provisions, or for them to be properly connected therewith, and is not misleading, such provisions will not be held inoperative. State v. Vestel, 81 Fla. 625, 88 So. 477.

An application of these general principles to chapter 9735, Special Acts of 1923, leads to the conclusion that it is not unconstitutional for lack of compliance with the requirements of section 16, article 3 of the State Constitution.

Appellants further contend that chapter 9735 is unconstitutional as being a legislative encroachment upon the powers of the judiciary and that said act is in the nature of a judicial decree or mandamus that in its terms required the city of De Land to pave certain designated streets therein. But the lone case of Stewart v. Thursby, 103 Fla. 990, 138 So. 742, which is cited in support of such contention, does not support it, and appellants' argument in other particulars on this point is unimpressive.

The act (chapter 9735) provides that the city of De Land may pave certain streets and that it may construct a system of sewerage, and goes on to say that, if it does do so, the expense thereof shall be borne in a certain designated manner. It does not say that it shall or must do so. As used in the statute, the word 'may' connotes authorization and not command; it permits but it does not compel; it allows but it does not constrain. In effect, the act says that the city of De Land may, if it desires, do certain things, and if it does so, that they must be done in a certain manner. It seems clear, therefore, from the very language of the statute, that it cannot be said that it amounts to a 'legislative decree in the nature of a judicial mandamus,' as appellant contends.

The power of the Legislature to authorize local improvements and to assess the abutting and presumptively benefited property for its proportionate part of the cost as was provided for by chapter 9735, Special Acts of 1923, has been recognized in many cases. See Davis v. City of Clearwater, 104 Fla. 42, 139 So. 825; Consolidated Land Co. v. Tyler, 88 Fla. 14, 101 So. 280; Hunter v. Owens, 80 Fla. 812, 86 So. 839; Martin v. Dade Muck Land Co., 95 Fla. 530, 116 So. 449; Bannerman v. Catts, 80 Fla. 170, 85 So. 336.

And section 5 of article 9 of the Constitution, which relates to taxation, does not apply to special assessments in the nature of taxation for local improvements. Lainhart v. Catts, 73 Fla. 735, 75 So. 47; Pinellas Park Drainage Dist. v. Kessler, 69 Fla. 558, 68 So. 668. Hence that section has no bearing on the questions argued here.

Subject to the foregoing argument, appellants also contend that chapter 11466, Acts of 1925 (Ex. Sess.), repealed chapter 9735,...