Kass v. Lewin
| Decision Date | 13 June 1958 |
| Citation | 104 So.2d 572 |
| Parties | Charles KASS, Appellant, v. Michael LEWIN, Appellee. |
| Court | Florida Supreme Court |
Eric W. Pappas, of Johnson & Pappas, Miami, for appellant.
George N. Jahn and Melbourne L. Martin, Miami, for appellee.
Richard W. Ervin, Atty. Gen., Ralph M. McLane, Asst. Atty. Gen., Edwin O. Simon, Miami, and Harry Zukernick, Miami Beach, for amicus curiae.
This appeal involves the constitutionality of Chapter 25519, Laws of Fla.1949, Chapter 30202, Laws of Fla. 1955.
In a suit for declaratory decree the chancellor held both acts unconstitutional in toto. The defendant appeals.
The title and sections 2, 3, 5, 6, 20 and 21, of Chapter 25519, supra, read as follows:
'An Act Effective in Counties Having Population in Excess of 300,000 Population According to the Last or Any Future Official State or Federal Census Pertaining to Plats and Platting and Defining the Same; Requiring the Approval and Recording of Plats in Certain Cases; Prohibiting the Conveyance, Leasing or Mortgaging of Lands, or Any Agreement with Reference Thereto by Reference Solely to a Plat Unless Such Plat Shall Have Been Approved and Recorded, and Making Any Such Prohibited Conveyances, Leases or Mortgages or Agreements Void and Prohibiting the Recording of the Same; Making It a Misdemeanor to Sell or Contract to Sell Platted Lands Unless a Plat Thereof is Approved and Recorded Except by Order of Court; Authorizing the Board of County Commissioners of Each County and the Governing Body of Each Municipality to Prescribe the Width of Roads, Streets, Alleys and Other Thoroughfares, and Setbacks Therefrom and to Name or Number the Same; Making Certain Requirements a Prerequisite to Approval of Plats; Providing Procedure For and Effect of Vacating Plats; Authorizing Board of County Commissioners of Each County and Governing Body of Each Municipality to Adopt Rules and Regulations to Effectuate Provisions and Purposes of This Act; Repealing All Laws and Parts of Laws in Conflict Herewith and Providing When This Act Shall Take Effect.
'Be It Enacted by the Legislature of the State of Florida:
'Section 2. Whenever the verb 'to plat,' in whatever tense used, is employed in this Act, the same shall mean to divide or subdivide land into lots, blocks, parcels, tracts or other portions thereof, however the same may be designated.
* * *
* * *'
In addition to the sections above-copied, Sections 8 through 19, of Chapter 25519, supra, empowered the boards of county commissioners and municipalities in the counties covered by the act to: approve plats, before the recording thereof, prescribe widths of roads and setbacks therefrom, number and name roads, vacate plats, and to adopt rules and regulations necessary to effectuate the provisions of the act. In addition the act prescribed certain conditions to obtaining approval of plats and vacation of plats. The act contained a severability clause.
Chapter 30202, supra, purported only to amend Section 3 of Chapter 25519, supra. The title thereto and the only pertinent section thereof reads as follows:
'An Act amending Section 3 of Chapter 25519, Laws of Florida, 1949, relating to plats and platting in counties having a population in excess of 300,000 according to the last or any future official state or federal census, and other matters therein set forth, by requiring that plats of certain platted land be recorded in the public records of the county wherein such land lies.
'Be It Enacted by the Legislature of the State of Florida:
'Section 1. Section 3 of Chapter 25519, Laws of Florida, 1949, is hereby amended so as to read as follows:
"Section 3. Whenever any land, a plat of which has not been recorded in the Public Records of the county wherein the land lies, shall be platted into lots, blocks, parcels, tracts or other portions, however designated, so that any of the same shall comprise one acre or less in size, and whenever any land, a plat of which has been recorded in the county wherein such land lies, is replatted into lots, blocks, parcels, tracts or other portions, however designated, so that any of the same shall comprise one-half acre or less in size, a plat thereof shall be recorded in the Public Records of the county wherein such land lies.' * * *'
Both acts were passed by the Legislature as general acts. It is not contended that the notice of intention to apply to the Legislature for passage thereof as special or local acts, as required by Section 21, Art. III, Fla.Const., F.S.A., was given in either case.
The cause before us arose out of the execution of a contract of sale of two parcels of real estate lying in Dade County, Florida. In the agreement Lewin, the plaintiff-appellee, was seller and Kass, the defendant-appellant, was purchaser. The two parcels of land were described as follows:
Parcel I: The East 100 feet of the S 1/2 of the N 1/2 of SW 1/4 of SE 1/4 in Sect. 26, Twp. 57 South, Range 38 East, situate in Dade County, Florida, being a parcel of land 100 feet by 330 feet in size; and
Parcel II: Lots 3, 4, and the E 1/2 of Lot 5, Block 9, Florida City Highlands, according to the plat thereof recorded in Plat Book 20, page 36, of the Public Records of Dade County, Florida, being a parcel of land 125 feet by 117.55 feet in size.
Prior to the date set for closing of the purchase and sale of said lands the defendant purchaser was advised by his attorney that under the terms of Chapter 25519, supra, Chapter 30202, supra, the contract of sale was void and the deed and a purchase money mortgage required to be given pursuant thereto would be void ab initio and would not be admitted to record in the public records of Dade County. Defendant Kass so informed plaintiff Lewin and this suit for declaratory decree followed.
A reading of the above-copied provisions of the subject statute, as amended, leads us to believe that if valid, they would have the effect which defendant's attorney advised him.
The definition given the verb 'to plat' in Section 2, Chapter 25519, supra, endues it with a strange and entirely different meaning than that customarily accorded it and one foreign to the usage of the noun 'plat' given in Section 1 of said act. To 'divide or subdivide' land into portions is 'to plat' under the statute, even though no map thereof be made.
Section 3, Chapter 25519, as amended, requires that when land, a plat of which has not been recorded, is 'platted', i. e., divided into portions of one acre or less, a plat must be prepared and recorded in the public records of the county in which the land is situate. In this instance since Parcel I, above-described, has not been previously platted and is less than one acre in size, a plat thereof would have to be prepared and recorded, otherwise Section 6 of the statute would prohibit the recording of the conveyance and the purchase money mortgage to be given in connection therewith. Further, Section 20 of the statute makes the contract of sale, the conveyance and the mortgage void ab initio, unless the land be platted, and Section 21 would make the parties guilty of a misdemeanor.
This means that conveyance of parcels of land, less than one acre in size, is prohibited, without the making and recording of a plat thereof, while conveyance by parcels of land greater than one acre in area is permitted without a plat being made and recorded.
As to Parcel II, above-described, the provisions of Section 3, Chapter 25519, as amended, supra, would apply also since it involves the conveyance of one half of Lot 5. This would constitute a 'replatting' of said lot into portions less than one half acre in size and would require the filing of a plat or the suffering of the consequences of Sections 6, 20 and 21 as discussed in the preceding paragraph.
In this appeal we are required to follow different principles of law and construction than in appeals from judgments or decrees not involving the validity of statutes.
A judgment or decree of a trial court holding a statute to be unconstitutional comes to an appellate court with no presumption of freedom from error. This is an exception to the general rule.
On the contrary, in passing on the validity of statutes we must indulge the presumption of constitutionality in favor of the act in question, and any doubts thereabout must be resolved in favor of its constitutionality. Waybright v. Duval County, 1940, 142 Fla. 875, 196 So....
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