A. M. Klemm & Son v. City of Winter Haven

• Decision Date: 12 December 1939
• Citation: A. M. Klemm & Son v. City of Winter Haven, 141 Fla. 60, 192 So. 652 (Fla. 1939)
• Parties: A. M. KLEMM & SON v. CITY OF WINTER HAVEN et al.
• Court: Florida Supreme Court

192 So. 652

141 Fla. 60

A. M. KLEMM & SON v. CITY OF WINTER HAVEN et al.

Florida Supreme Court

December 12, 1939

Suit by A. M. Klemm & Son against the City of Winter Haven and others to vacate certain tax levies and to enjoin collection of taxes. From a decree dismissing the bill of complaint upon motions of the defendants, and denying motion to strike parts of the bill of complaint, plaintiff appeals.

Affirmed. Appeal from Circuit Court, Polk County; H. C Petteway, Judge.

COUNSEL

Touchton & Crittenden, of Winter Haven, for appellant.

Henry Sinclair, of Winter Haven, for appellee City of Winter Haven.

W. H Hamilton, of Winter Haven, for appellee George Andrews.

OPINION

WHITFIELD Presiding Justice.

This appeal is from a decree dismissing the bill of complaint upon motions of the defendants, and denying a motion to strike parts of the bill of complaint. The plaintiff 'elected not to plead further.'

Some of the matters presented by the pleadings have been adjudicated in another case, See City of Winter Haven v. Klemm &amp Co., 132 Fla. 334, 181 So. 153; Id., 133 Fla. 525, 182 So. 841.

The prayer of the bill of complaint is:

'Wherefore, premises considered, plaintiff prays that the Court vacate, annul, cancel and set aside the tax levies aforementioned, against plaintiff's lands aforedescribed, by decree of this Court; that the said O. Roscoe Way, as City Tax Collector, and his successors in office, be permanently enjoined from collecting or attempting to collect said taxes, or any part thereof; and that the defendant City Commissioners, and their successors in office, be permanently enjoined from hereafter levying taxes against the property of the plaintiff aforedescribed; that the said O. Roscoe Way, as City Clerk, as Ex-officio Tax Assessor of the said The City of Winter Haven, and his successors in office, be permanently enjoined from hereafter assessing taxes against the lands of plaintiff, aforedescribed; that the Court adjudge and decree that the tax levies, aforementioned, constitute a mere cloud on title to plaintiff's lands aforedescribed, and further decree said cloud be and the same is thereby removed and quieted against the said tax levies aforementioned of the said The City of Winter Haven.'

The opinion and decree of the chancellor contain the following:

'The Court is of the opinion with reference to levies made for operating expenses prior to ouster in quo warranto, absent allegations of no benefits presently received by the lands of plaintiff, and in view of the admission of paving having been placed abutting the north side of said lands, that this Court is bound by the opinions and judgments of the Florida Supreme Court in Klemm and Lake Placid cases, aforementioned, which cases hold, according to the construction given these cases by this Court, that before a taxpayer can have relief by injunction from operating levies made prior to ouster, he must again allege and prove that ousted lands have received no municipal benefits in the past and can presently receive no municipal benefits; in other words he must allege and prove his case, identically, as if no ouster had been entered and under the procedure authorized by the Supreme Court in City of Sarasota v. Skillin, 130 Fla. 724, 178 So. 837, and as to bond debt service this Court construes the cases to hold that levies made either before or after judgment of ouster for this purpose, the taxpayer may not have relief by injunction or otherwise, being estopped by reason of validation and negotiation of the bonds and the exercise by a municipality of asserted de facto jurisdiction over excluded lands before judgment of ouster in quo warranto. Therefore, this court must hold the motions of the defendant city and its officials and the motion of George Andrews to dismiss the bill well taken, and the plaintiff having announced to the Court that it elected not to plead further in said cause;

'It is therefore ordered, adjudged and decreed that the motion of the City of Winter Haven and its officials to dismiss the bill of complaint and the separate motion of George Andrews, a defendant herein, to dismiss the bill, be and the same are hereby granted and the Court having granted motions of the defendants to dismiss the bill of complaint, the motion to strike parts of the bill of complaint, interposed by defendants, be and the same are hereby denied;

'It is further ordered, adjudged and decreed that this cause be and the same is hereby dismissed with costs herein in the sum of $9.35 taxes against the plaintiff.

'Done and ordered at Chambers in Lakeland, Florida, this the 12th day of December, A. D. 1938.

'H. C. Petteway

'Judge of the Circuit Court'.

The object of the suit is to enjoin municipal taxation of plaintiff's described forty acres of land that is included in a large area of rural land from which the jurisdiction of the City of Winter Haven was excluded by a quo warranto judgment, after the de jury city had for several years exercised de facto jurisdiction over the lands and had issued municipal public improvement bonds for the payment of which the city had pledged its taxing power over all of the taxable lands in the city limits under Chapter 11301, Sp.Acts of 1925, some of the lands, including plaintiff's described lands, are covered by the ouster judgment. State ex rel. v. City of Winter Haven, 114 Fla. 199, 154 So. 700.

It is contended that the judgment of ouster is res adjudicata as to all the lands directed by this Court to be included in the ouster judgment on the ground that Chapter 11301 violated section 8, Article VIII, as well as on the ground that the violation was of section 16, Article III, constitution on which latter ground alone the judgment of this Court was predicated.

While the information in the quo warranto proceedings to oust the jurisdiction of the City of Winter Haven from a large area of rural lands including the plaintiff's described land, alleged partial invalidity of Chapter 11301, Sp.Acts of 1925, on grounds that section 16, Article III, and also in effect that section 8, Article VIII, of the constitution had been violated by the inclusion of such rural lands in the city of Winter Haven, the original Circuit Court judgment of ouster was limited to only a portion of the lands that were incorporated in violation of section 16, Article III, and this Court on writ of error reversed the Circuit Court judgment of ouster and directed that a judgment of ouster be entered by the Circuit Court covering all the lands incorporated in the city in violation of section 16, Article III, of the constitution, this court stating in its opinion which was a part of the appellate court judgment, that:

'Holding the title of the act to be insufficient [under section 16, article III], it is unnecessary for us to discuss other questions which would be necessary for our determination if the title to the act were valid.

'We think that the title to the act, together with the provisions of the body of the act, is sufficient to include within the territorial limits of the city of Winter Haven all of that territory which immediately prior to the passage of the act was included within the territorial limits of Florence Villa, but it was ineffective to include any of that territory beyond the limits of Florence Villa and beyond the limits of the city of Winter Haven as described in chapter 11299, Sp.Acts 1925.

'Accordingly, the judgment should be reversed, with the directions that a judgment of ouster be entered against the respondents as to all territory lying outside of the territory embraced within the city of Winter Haven as established by chapter 11299 and the territory embraced in the town of Florence Villa at the time of this annexation by chapter 11301.

'It is so ordered.' State ex rel. v. City of Winter Haven, 114 Fla. 199, 154 So. 700, 701.

Note: The word 'sufficient' in the second paragraph of the above quotation erroneously appears as 'insufficient' in the Florida Reports and in the Southern Reporter.

Any judgment rendered by the Circuit Court with a broader scope and purpose than that indicated by the opinion of this Court which is a part of the appellate court judgment, would be of no effect in law; and could not be res adjudicata of anything not covered by the judgment directed to be entered by the opinion and judgment of this court.

The alleged partial invalidity of Chapter 11301 under section 8, Article VIII, constitution, was not a part of, or involved, in the opinion and judgment of this Court, and could not legally have been included in the intendments of the Circuit Court judgment of ouster that was directed to be entered by this Court. A violation of Sec. 16, art. III presents a question of law. Whether section 8, article VIII has been violated by excessive incorporation of rural lands presents questions of fact.

Likewise as to the application of the doctrine of de facto municipal jurisdiction in appropriate judicial proceedings. This latter question was not involved in the quo warranto case, State ex rel. v. City of Winter Haven 114 Fla. 199, 154 So. 700, but it was adjudicated on the appeal in City of Winter Haven v. Klemm & Son, 132 Fla. 334, 181 So. 153, where also other questions presented on this appeal were adjudicated by this Court. See also Shapleigh v. San Angelo, 167 U.S. 646, 17 S.Ct. 957, 42 L.Ed. 310; Tulare Irrigation Dist. v. Shepard, 185 U.S. 1, 22 S.Ct. 531, 46 L.Ed. 773.

The doctrine of de facto municipal jurisdiction in this class of cases is not predicated upon a valid legislative enactment but upon a prima facie and presumptively valid enactment that is alleged to be invalid and subsequently adjudged to be invalid or void, whether in form, as a violation of ...