Mcmullen v. Newmar Corp.

• Decision Date: 04 August 1930
• Parties: McMULLEN et al. v. NEWMAR CORPORATION et al.
• Court: Florida Supreme Court

129 So. 870

100 Fla. 566

McMULLEN et al. v. NEWMAR CORPORATION et al.

Florida Supreme Court, Division B.

August 4, 1930

Suit by the Newmar Corporation and others against F. G. McMullen and others, as Supervisors of the North St. Lucie River Drainage District, and others. From an order overruling demurrer to bill of complaint and from an order appointing examiner to take testimony, defendants appeal.

Reversed.

ELLIS J., dissenting.

Syllabus by the Court.

SYLLABUS

The provisions of chapter 6458, Acts 1913, conferring authority upon the circuit courts, do not delegate to the courts any 'legislative power' that the Constitution requires to be exercised solely by the Legislature.

The function to find and declare that the facts exist upon which a statute by its own terms operates may by the statute be conferred upon an appropriate administrative tribunal; or it may be conferred by statute upon a court under the provision of section 11, article 5, Constitution, which gives to the circuit courts jurisdiction of stated judicial matters 'and of such other matters as the Legislature may provide.'

Executive or administrative officers or tribunals may by statute be authorized to exercise functions that are quasi judicial or quasi legislative in their nature, when the function is not a power that by the Constitution is assigned exclusively to one of the three departments of the government.

The provisions of chapter 6458, Acts 1913, requiring a circuit court to hear objections to the incorporation of a drainage district or to the inclusion of particular lands therein, and to determine whether 'the establishment of said drainage district and the improvements to be made thereunder will be for the advantage of the owners of the real property therein or that the same would be in the interest of the public health, convenience, or welfare,' do not violate article 2 of the Constitution.

Whether the provisions of chapter 6458, Acts 1913, may be applied to a particular locality is by the statute itself made to depend upon the existence of facts within the provisions and limitations of the statute; the existence of the facts to be found and declared by the tribunal designated by the statute upon which finding the statute itself operates to form the district.

The function of finding and declaring the facts contemplated by chapter 6458, Acts 1913 to exist in a particular case, is at least a quasi judicial function, the performance of which the legislature may confer upon the circuit courts, particularly in view of the provision of section 11, art. 5, Constitution that the circuit courts shall have jurisdiction 'of such other matters as the Legislature may provide.'

The courts take judicial notice of legislative enactments, and this can be done in considering a demurrer to a bill of complaint which does not a refer to the legislative enactments.

Chapter 7973, Sp. Acts 1919, renders valid all the proceedings and all administrative and quasi judicial actions taken under chapter 6458, Acts 1913; it not appearing that any of such proceedings or actions taken conflict with organic law, or that the validating acts are not within the legislative power. Appeal from Circuit Court, St. Lucie County; F. M. Robles, judge.

COUNSEL

G. P Garrett, of Orlando, for appellants.

Quincey & Rice, of West Palm Beach, and Dame & Rogers, of Ft. Pierce, for appellees.

Newmar Corporation and others, owners of lands in North St. Lucie river drainage district, filed a suit in equity against the tax collector of St. Lucie county, the supervisors of North St. Lucie river drainage district, and others, in which it is alleged that the said supervisors have levied a drainage tax or assessment against described lands of the complainants for the years 1928 and 1929; that said supervisors 'threaten and intend to levy a like annual tax respectively for the year 1930 and for each of the succeeding years during the life of the bonds hereinafter referred to and described; that the said Supervisors have prepared a total tax levy against your orator's lands and other lands, in said District in a Book endorsed and named 'Drainage Tax Book, year 1929, North St. Lucie River Drainage Dist., St. Lucie County, Florida,' containing a list of the total drainage taxes levied against the lands herein described, and said book has been filed in the office of the Clerk of the Circuit Court of St. Lucie County, Florida, by the said Supervisors, and they have prepared a certificate and table of the annual taxes levied against your orators' lands and against the lands of the other property owners in said District in the form of a bound book endorsed and named Drainage Tax Book, North St. Lucie Drainage District, St. Lucie County, Florida, for the year 1929, and that for and during the years 1918 and 1920, to 1929, inclusive, said North St. Lucie River Drainage District Tax Book has been delivered to defendant F. M. Tyler, Tax Collector of St. Lucie County, Florida, and the said Tax Collector is now attempting to collect from your orators and from the other land owners in said Drainage District the drainage taxes aforesaid; that the lands embraced in the district did not constitute a contiguous body of water or over-flowed lands or lands subject to over-flow on the date of the organization of the said Drainage District, but on the contrary, a large percentage of said lands, including a large part of the lands belonging to your orators was high and dry, and said high and dry lands were not and cannot be benefited directly or indirectly by drainage improvements and said high and dry lands were included within the drainage district solely for the purpose of deriving revenue for the levying and collection of taxes thereon for the benefit of other lands which might perchance be improved by drainage; that the petition filed under the statute for the formation of the district was not signed by the Board of Drainage Commissioners of the State of Florida, nor by a majority of the owners of said land, nor by the owners of a majority of the acreage of said land, and the Circuit Court was without jurisdiction to entertain such Petition or to enter any Decree thereon; that there are within the boundary lines of the North St. Lucie River Drainage District approximately 75,000 acres of land. That the Petition for the formation of said District, insofar as said petition shows, was signed by the owners of only 581 acres of land in said District. That there was not presented to the Court upon the hearing of said application for incorporation of said District any legal evidence of any kind or character to show or to indicate that the owners of a majority acreage in said District had signed said petitions, nor was there introduced before said Court any legal evidence of any kind or character to show that any signer of said petitions owned any land whatsoever in said District at the time the said Final Decree was rendered, incorporating the District aforesaid; that on the 7th day of November A. D. 1917, the Court without jurisdiction of the subject matter or of the parties and without hearing any evidence whatsoever as to the law with reference to the incorporation of drainage districts having been complied with, entered a decree establishing said district.'

There are other allegations designed to show illegality in the statute, chapter 6458, Acts 1913, under which the district was formed, and to show illegality in the action taken in forming the district, and in issuing bonds to be paid by taxation here sought to be enjoined.

The prayer is that the formation of the district be decreed to be invalid and a cloud upon the title of complainant's lands in the district; that the tax assessments be declared invalid and canceled, and the collection of the taxes enjoined.

A demurrer of the supervisors to the bill of complaint was overruled. The supervisors filed a joint and several answer controverting the allegations of the bill of complaint, and adducing two statutes validating the administrative acts complained of. An examiner was appointed to take testimony on the issues raised by the bill and answer. An appeal was taken by the supervisors from the order overruling their demurrer to the bill of complaint and from the order appointing an examiner to take testimony.

Among the provisions of chapter 6458, Acts 1913, are the following:

'Section 1. The Board of Drainage Commissioners of this State, or a majority, either in numbers or in acreage, of the holders of any contiguous body of, wet or overflowed lands, or lands subject to overflow, situate in one or more Counties in this State, may form a Drainage District for the purpose of having such lands reclaimed and protected from the effects of water, for sanitary or agricultural purposes, or when the same may be conducive to the public health, convenience or welfare, or of public utility or benefit, by drainage or otherwise, and for that purpose the said Board of Drainage Commissioners, or a majority of the owners, or the owners of a majority of the acreage of said lands may make and sign a petition, in which shall be stated; the name of the proposed drainage district, and the number of years the same is to continue; the boundary lines of the proposed drainage district; the names so far as known, and the last known post office address of the owners of lands or other property in said district, together with a general description of the lands and the approximate number of acres owned by each; when the name or post office address of the owner of any said lands or other property is unknown this fact shall be set out in said petition; said petition shall further state that the owners of the lands within said district whose names are subscribed to

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