National Container Corp. v. State Ex Rel. Stockton

• Decision Date: 16 May 1939
• Parties: NATIONAL CONTAINER CORPORATION et al. v. STATE ex rel. STOCKTON et al.
• Court: Florida Supreme Court

189 So. 4

138 Fla. 32

NATIONAL CONTAINER CORPORATION et al. v. STATE ex rel. STOCKTON et al.

Florida Supreme Court, Division A.

May 16, 1939

Rehearing Denied June 2, 1939.

Suit by the State of Florida, on the relation of James R. Stockton and others, against the National Container Corporation, the Merritt-Chapman & Scott Corporation, and others to prevent the use of certain land for the erection and operation of a wood pulp mill, to restrain the drilling of artesian wells and for other relief. From an interlocutory order denying and overruling separate motions to dismiss the bill and striking certain paragraphs of the answers of the named defendants defendants appeal.

Affirmed. Appeal from Circuit Court, Duval County; Bayard B. Shields, judge.

COUNSEL

F. P Fleming and Fleming, Hamilton & Diver, all of Jacksonville, for appellants.

Lucien H. Boggs and John E. Mathews, both of Jacksonville, for appellees.

OPINION

BUFORD Justice.

This case is before us to review an interlocutory order of the Circuit Court in and for Duval County wherein separate motions to dismiss the Bill of Complaint were denied and over-ruled and certain paragraphs of the answer of the defendants thereto were stricken.

In this opinion we shall refer to the appellant as such or as the defendant and to the appellees as such or as plaintiffs.

Some ninety persons, private citizens and taxpayers of Duval County, Florida, on August 20th, 1937, filed a bill of complaint in the name of the State of Florida in the Circuit Court against National Container Corporation, a Delaware Corporation, Merritt-Chapman & Scott Corporation, a Delaware Corporation, Atlantic National Bank of Jacksonville, a banking corporation, and Ernest E. Anders, Thomas C. Imeson, Guy L. Simmons, Philip M. Ulsch, Fred M. Valz as members of and constituting the City Commission of the City of Jacksonville. The relief sought against National Container Corporation is to prevent it from using land in the industrial section of Jacksonville as a site upon which to erect and operate a wood pulp mill upon the theory that the operation of such pulp mill will result in the creation of a public nuisance.

The plaintiffs by the bill also sought to restrain the drilling of Artesian wells below the 300 foot level upon the defendants premises upon the theory, and charged in the bill, that the mill will necessarily and unavoidably emit great quantities of smoke, fumes and gases of such powerful, foul, offensive persistent smell as to cause material discomfort to the plaintiff and to all other people of the City of Jacksonville and the surrounding communities, both in their homes and at and in their places of business.

It is alleged upon information and belief, that the waste waters to be discharged from said mill into the St. Johns River will prove harmful, injurious and toxic to fish and acquatic life and that the supply of fish will be seriously reduced, if not cut off entirely, thereby seriously and permanently damaging the profitable commercial business and pleasure incident to fishing which now exists in said River.

It is further averred, upon information and belief, by amendment, that a serious health menace will be created in that the waste waters will be of such great and additional oxygen demand that the sewerage of the City of Jacksonville now being emptied into the St. Johns River will not be rendered sterile and harmless.

It is further charged, upon information and belief, that the use of six million gallons of Artesian water from the subterranean basin underlying the City of Jacksonville will, in addition to that already being taken and used from the common source, lower the water level, thereby possibly endangering the entire water supply through and in filtration of salt water.

The bill seeks to restrain the Marritt-Chapman & Scott Corporation from proceeding under the contract for the construction of said mill and the drilling of and Artesian wells of a depth greater than 300 feet on the premises of National Container Corporation.

It is further alleged that the City Commission of the City of Jacksonville acted unlawfully and in abuse of its discretion in granting the National Container Corporation a permit to drill 3 or more Artesian wells upon its lands and it is charged that the permit is invalid and of no effect, (1st) in that no application was made in conformity with Section 2 of Chapter 6356, Laws of Florida, 1911, a copy of which is attached to and made a part of the Bill of Complaint; (2nd) because the permit failed to prescribe any rule for regulation, reasonably or otherwise, for the driving, boring or encasing the wells, and failed to provide any method of controlling or stopping the flow therefrom as provided by the statute, supra; and (3rd) because the City Commission acted recklessly and improvidently without regard to the duties cast upon it by the said statute in that it completely disregarded in granting the permit, protests of relators and other private citizens of Jacksonville and the numerous and various special reports upon the future water supply of the said City and the dangers arising from excessive drafts of Artesian water.

It is further charged that the City Commission did not only abuse its discretion in granting the permit but that it further abused its discretion in secretly and clandestinely, without previous or subsequent announcement to the public press, and without further investigation, eliminating from the permit the provisions authorizing the Commission to cap the wells if in its opinion the water supply of the City was being endangered and thereupon prayed that the City Commission be mandatorily enjoined to cancel and rescind the permit theretofore granted and restrained from thereafter issuing any further permit.

National Container Corporation and Merritt-Chapman & Scott Corporation filed their respective answers incorporating motions to dismiss the Bill of Complaint.

The plaintiffs filed motion to strike certain portions of the answers of the defendants National Container Corporation and Merritt-Chapman & Scott Corporation. On the same date plaintiffs also filed motion to require each of said defendants to amend certain portions of their answers by giving further and better particulars with respect to matters pleaded in said answers.

The Circuit Court entered its order denying the defendants' several motions to dismiss the bill of complaint and granting the plaintiffs' motion to strike and for better particulars with respect to many portions of the separate answers of National Container Corporation and Merritt-Chapman & Scott Corporation. From this order all defendants appealed.

The defendants stress their contention that the Circuit Court was in error in denying the motion to dismiss and also contend that the ruling of the court in striking certain paragraphs of the answers of National Container Corporation and of Merritt-Chapman & Scott Corporation was error.

The appellants have submitted in the brief nineteen questions for our consideration. The 3rd, 4th and 5th questions presented by appellants are stated as follows:

'May private persons under sections 5029 and 7832, Compiled General Laws of Florida, 1927, maintain a bill of complaint in the name of the State of Florida to restrain the operation of a pulp mill in Jacksonville on the theory that a public nuisance will necessarily exist through (a) the emission of obnoxious odors; (b) the pollution of the river; and (c) the endangering of the artesian water supply underlying the city?'

4. 'May private persons maintain a bill of complaint to restrain the construction and operation of a pulp mill as a public nuisance without the necessity of showing wherein each will suffer a special injury separate and apart from the general public?'

5. 'May private persons, without having established any rights in an action at law, maintain a bill of complaint to restrain the construction and operation of a pulp mill upon the theory that a public nuisance will necessarily exist where the mill is not per se a nuisance?'

If these questions are determined in accordance with the contention of appellants it will not be necessary for us to consider other questions.

The appellants, National Container Corporation and Merritt-Chapman & Scott Corporation, set up as grounds to dismiss the bill of complaint the contention presented in questions 3, 4 and 5, supra, upon the theory that the state has no interest in the suit and is not properly joined and the plaintiff can not utilize the name of the State to maintain this suit. The first and second ground of the motion raised the question of the propriety of joining the State as a party and alleged that there is no authority for the naming of the State as a plaintiff in the suit.

The Plaintiffs contend that they are empowered to bring the suit in the name of the State by express statutory authority which they insist is found in section 3223, R.G.S., 5029, C.G.L., which reads as follows:

'5029. (3223.) Bill maintained in name of State; parties defendant.--Whenever any nuisance as defined in section 7832 is kept, maintained or exists, the State's attorney, county solicitor, county prosecutor, or any citizen of the county through any attorney he may select, may maintain his action by bill in chancery in the proper court in the name of the State of Florida upon the relation of such attorneys or citizen to enjoin said nuisance, the person, or persons conducting or maintaining the same and the owner or agent of the building or ground upon which said nuisance exists.'

And under section 5639, R.G.S., 7832, C.G.L., which is as follows:

'7832. (5639.) Places declared a nuisance; may be abated and enjoined.--Whoever shall erect,...