Hughes v. Town of Davenport

• Decision Date: 16 January 1940
• Citation: 193 So. 291,141 Fla. 382
• Parties: HUGHES et al. v. TOWN OF DAVENPORT et al.
• Court: Florida Supreme Court

193 So. 291

141 Fla. 382

HUGHES et al. v. TOWN OF DAVENPORT et al.

Florida Supreme Court, Division A.

January 16, 1940

Suit by J. W. Hughes and others against the Town of Davenport, a municipal corporation of the State of Florida, and another to enjoin the assessment of taxes against certain lands. From an order denying injunction and dismissing the bill plaintiffs appeal.

Reversed and remanded. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Milam, McIlvaine & Milam, of Jacksonville, for appellants.

Wylie & Warren, of St. Petersburg, and Gordon C. Huie, of Haines City, for appellees.

OPINION

BUFORD Justice.

The appeal brings for review order denying injunction and dismissing bill of complaint in a suit in which it was sought to enjoin the assessment of taxes against certain lands to contribute to a fund to be provided with which to discharge certain described municipal bonds issued by the Town of Davenport and held by the defendant G. H. George, and others similarly situated.

The bill shows that on the 22nd day of July, 1932, in quo warranto proceedings a final judgment was rendered in which it was adjudicated, inter alia:

'2. That the Legislature of the State of Florida for the year 1917 by an act known as Chapter 7637, Sp.Laws of 1917, abolished the then existing municipal government of the Town of Davenport in the County of Polk and State of Florida, and the same act established, organized and constituted a municipality to be known and designated as the Town of Davenport and in said Act creating the Town of Davenport designated its territorial boundaries as follows:

'Begin at the center of Section 4 and run East to the northeast corner of the southeast quarter of Section 3, thence south to the southeast corner of the Northeast quarter of the Northeast quarter of Section 10, thence west to the southwest corner of the Northwest quarter of the northeast quarter of Section 9, thence North to the point of beginning, which boundary embraces the south half of Section 3, the southeast quarter of Section 4, the north half of the northeast quarter of Section 9, and the north half of the north half of Section 10, all in Township 27 South, Range 27 East.

'3. That the Legislature of the State of Florida for the year 1925 by an Act known as Chapter 10463, Special Laws of 1925, enacted a law known as Chapter 10463, Special Laws of 1925, in which it abolished the then existing municipal government of the Town of Davenport and in and by the same Act fixed the boundaries of the Town of Davenport so as to include in addition to the above mentioned territory the following described lands lying in Polk County, Florida, to-wit: The northwest quarter of Section 3, the Southwest Quarter of Section 4, all of Section 9 except the North half of the Northeast quarter thereof, all in Township 27 South, Range 27 East.

'4. That the lands of the Relators set forth and described in the information as amended constitute a great portion of the lands included within the 880 acres of land sought to be added to the original limits of the Town of Davenport by Chapter 10463, Laws of Florida for the year 1925.

'5. That the following described lands located in Polk County, Florida, to-wit: The southwest quarter of Section 4, all of Section 9 except the North half of the Northeast quarter thereof, all in Township 27 South, Range 27 East; are rural lands so removed from the conveniences and advantages of the Town of Davenport that the said tract of land just above described has only one or two inhabitants of a more or less transient nature, that no benefits have accrued to said property, or any part thereof, or the owners of said property, as an outgrowth of its being included in the Town limits of the Town of Davenport and none are probable and contemplated, thereby denying the property owners of said property the equal protection of the laws and the enjoyment of their property, and that Chapter 10463, Sp.Acts of the Legislature of the State of Florida for the year 1925, is invalid and unconstitutional insofar as the same attempts to include within the town limits of the Town of Davenport the 720 acre tract of land just above described.

'6. That the following described lands located in Polk County, Florida, to-wit: The northwest quarter of Section 3, in Township 27 South, Range 27 East; are urban lands containing a large number of residents who are receiving municipal benefits as an outgrowth of the said 160 acre tract of land being included in the corporate limits of the Town of Davenport, and that the said Act of the Legislature of the State of Florida, to-wit: Chapter 10463, Special Laws of 1925, is a valid and subsisting law insofar as the said 160 acre tract of land is concerned.

'And the parties to this suit consenting that the Court treat the above mentioned 160 acre tract of land separately and apart from the remaining lands described in the said Act of the Legislature and render its Final Judgment on the merits of the case as to each tract of land.

'It is, therefore, considered, ordered and adjudged that the Final Judgment of Ouster upon the pleadings and proof involved in this suit be, and the same is hereby, entered insofar as the following described lands lying in Polk County, Florida, are concerned, to-wit: The Southwest quarter of Section 4, all of Section 9 except the North half of the Northeast quarter thereof, all in Township 27, South, Range 27 East.

'It is further considered, ordered and adjudged that the Town of Davenport, a municipal corporation organized under the laws of the State of Florida, be and it is hereby, ousted from jurisdiction and from exercising the functions, privileges and powers of the municipality over and upon the above mentioned lands lying in Polk County, Florida, to-wit: The Southwest quarter of Section 4 and all of Section 9, except the North half of the Northeast quarter thereof, all in township 27 South, Range 27 East; the same including among other lands the lands of the Co-Relators, J. D. Louis, Wrey-Gray Corporation, a corporation organized under the Laws of the State of Florida, Henry J. Dierket, F. S. Bates, Charles A. Lauffer, Samuel E. Hillis, J. W. Wackerlin, Arthur B. Seibold, D. McDougal, M. H. Beurrskins, William E. Vater, Holly Hill Grove and Fruit Company, a corporation, Fee Simple Company, a corporation, and Bayless W. Haynes.

'It is further considered, ordered and adjudged that the writ of quo warranto heretofore issued in the above styled cause be, and the same is hereby, quashed insofar only as the said Northwest Quarter of Section three (3), in Township 27 South, Range 27 East, lying in Polk County, Florida, is concerned.'

It is shown that the lands involved in this suit are of the identical lands described in paragraph 5 of the judgment, supra, and that the same were purchased by the present owner subsequent to such judgment.

It is shown that the bonds for the payment of which taxes are proposed to be levied were issued prior to the judgment of ouster and subsequent to the passage of Chapter 10463, Sp.Acts of 1925.

It is also shown that for a number of years after the judgment of ouster was entered the Town attempted to levy no taxes against the ousted lands and that it was during this period of nonaction on the part of the Town that the plaintiffs acquired title to the property involved. That plaintiff paid large sums of money for the lands and in the expense of improving the lands 'in line with their rural nature, that is, for the production of citrus fruits'.

A question to be determined is whether or not the municipality in the exercise of a de facto jurisdiction may levy taxes on these lands for the purpose of producing the fund hereinbefore referred to.

There is no contention that the lands ever have been or ever will be of such character and so located as to receive or participate in any municipal benefits.

We may say here that the question of the validity of the bonds is not involved. It is conceded that the bonds are the valid bonding obligations of the Town of Davenport, whatever that Town may be. The validation proceedings and the judgment therein did not preclude a taxpayer from asserting that his property was unconstitutionally included in the municipal boundaries by the Legislature because such issue could not be tried in a validation suit. See West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361, 365; State v. City of Coral Gables, 114 Fla. 326, 154 So. 234; State ex rel. Fidelity Life Ass'n v. City of Cedar Keys, 122 Fla. 454, 165 So. 672; City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334, 181 So. 153. Nor does a judgment in a mandamus action instituted by a bond-holder requiring the officials to levy taxes to service his bonds preclude the landowner from contesting the validity of the assessment ordered against his property. This is true because the landowner is not a party to mandamus proceedings and has not had his day in court. City of Winter Haven v. Klemm, etc., supra; State ex rel. Attorney General et al. v. City of Avon Park, 108 Fla. 641, 149 So. 409; State ex rel. Harrington v. City of Pompano, 136 Fla. 730, 188 So. 610.

It appears that the Chancellor rather unwillingly entered the order and decree appealed from because he had reached the conclusion that the case was to be ruled by his construction of the force and effect of the opinions and judgments in the case of Winter Haven v. Klemm, etc., supra, and Henderson v. Town of Lake Placid, 132 Fla. 190, 181 So. 177.

The judgment was entered in this case on October 28, 1938, which was prior to the promulgation of our opinion and judgment in the case of State ex rel. Harrington v. City of Pompano, supra.

It is true that the P...