North Shore Bank v. Town of Surfside

• Decision Date: 04 May 1954
• Citation: 72 So.2d 659
• Parties: NORTH SHORE BANK v. TOWN OF SURFSIDE. BOEHRER v. TOWN OF SURFSIDE et al.
• Court: Florida Supreme Court

Page 659

72 So.2d 659

NORTH SHORE BANK v. TOWN OF SURFSIDE.

BOEHRER v. TOWN OF SURFSIDE et al.

Supreme Court of Florida, Division B.

May 4, 1954.

Meyer, Weiss & Rosen, Miami Beach, and Robert H. Anderson, Miami, for North Shore Bank.

Sibley & Davis and Darrey A. Davis, Miami Beach, for John J. Boehrer.

Frank J. Kelly, Miami, for appellees.

DREW, Justice.

The Town of Surfside is governed by Chapter 27914, Special Laws of Florida, Acts of 1951, and such General Laws as are applicable.

On September 14, 1953, the governing body of the municipality adopted an ordinance authorizing the issuance of $70,000 of Public Improvement Certificates for the purpose of raising funds to acquire Lot 1, Block 2 of Altos del Mar No. 5 to be used as a supplement to and addition to its public bathing facilities. The ordinance pledges to the prompt payment of said certificates the revenues to be derived in the future from a franchise tax upon the Florida Power and Light Company in a sum equal to 6% of its revenue from the sales in said municipality, less 'the amount of all taxes, licenses and other impositions levied or imposed by the town upon the [Power Company's] property, business or operations' within said municipality. There is no provision in the ordinance for submitting it to the qualified electors of said municipality for acceptance or rejection.

Arrangements were made to sell the foregoing certificates to the North Shore Bank, one of the appellants, for a satisfactory price 'upon the condition that a decree of a court of competent jurisdiction be rendered delcaring such certificates to be legal obligations of the town.' In order to obtain such decree, the municipality filed a petition for declaratory decree against the North Shore Bank. This petition was filed October 12, 1953. The bank answered on October 21. On the 23rd of October, J. J. Boehrer, the Mayor of the municipality, (the same person who signed the ordinance providing for the issuance of said bonds) filed his petition to intervene as a 'property owner, taxpayer and citizen' of said municipality, for the purpose of challenging the 'propriety' of the proceedings. On November 3rd, an order was entered granting the prayer of the petition. And a motion to dismiss was filed on the same day by Boehrer which raised two questions: First: The Declaratory Decree Statute could not be invoked in the cause because the matter was controlled exclusively by Chapter 75, Florida Statutes 1953, F.S.A., the Chapter providing for bond validations; and Second: That the petition failed to state a cause of action because all it sought is an advisory opinion in a non-controversial matter in a non-adversary proceeding. On November 30th the motion to dismiss was denied. Testimony was taken on December 9rh and on the same date a final decree was entered and recorded holding the bonds valid and the proceedings providing for the issuance thereof regular in all respects. The decision expressly granted the prayer of the petition for declaratory decree and concluded by holding 'such certificates are hereby declared to be legal and valid obligations of the Town on Surfside payable from the sources therein provided.'

From the final decree an appeal was taken by both the North Shore Bank and the intergenor Boehrer.

Appellant, North Shore Bank, assigns as error the entry of the final decree. As has been heretofore recited, the decree was wholly in its favor and granted completely the relief sought. This appeal must be, and therefore is, dismissed on the authority of Credit Industrial Co. v. Remark Chemical Co., Fla.1953, 67 So.2d 540.

Boehrer, in his appeal, urges that Chapter 75, Florida Statutes 1953, F.S.A., affords an exclusive method of determining the validity of bonds of public bodies and that there is no authority in the lower court to enter the decree appealed from.

This Court, in at least six declaratory decree cases Seaboard Air Line R. Co. v. Peters, Fla.1949, 43 So.2d 448; City of Jacksonville v. Nichols Engineering & Research Corp., Fla.1950, 49 So.2d 529; Bessemer Properties, Inc., v. Peters, Fla.1951, 51 So.2d 786; City of Hollywood v. Broward County, Fla.1951, 54 So.2d 205; Nelson v. City of Fort Lauderdale, Fla. 1951, 54 So.2d 207; Bessemer Properties, Inc. v. MacVicar, Fla.1953, 63 So.2d 647, has passed on various phases of the validity of obligations of public bodies. While in none of those cases was the question of the propriety of the proceedings directly raised, it is not difficult to reach the conclusion that the proposition presented is without merit. There is no requirement that any public obligation be validated under Chapter 75, supra. The Chapter may be invokved and the proceedings there delineated pursued, if the governing body of such public authority deems it 'expedient.' Section 75.02, Florida Statutes 1953, F.S.A. The purpose of such proceedings is to put in repose and forever set at rest any question of law or fact that may be subsequently raised affecting the validity of such bonds. Thompson v. Town of Frostproof, 89 Fla. 92, 103 So. 118. No right exists in any taxpayer or citizen to compel the governing body to resort to Chapter 75 or invoke its provisions.

Chapter 87, Florida Statutes 1953, F.S.A., is, we hold, by its direct terms, in a proper case, available to any affected party for the purpose of obtaining a declaration of rights, status or other equitable or legal relations arising out of a public obligation. The effect of a decree, if rendered, is, of course, circumscribed by the Act itself. No such decree is binding upon nor can it in any way affect or prejudice the rights of persons not parties to the proceedings. Section 87.10, Florida Statutes 1953, F.S.A. The fact that the town is a party could in no way cut off the rights of any citizen or taxpayer, as would be the case in a properly conducted validation proceeding under Chapter 75, Florida Statutes 1953, F.S.A.

The fact that public obligations are the subject matter of a suit for declaratory decree, does not authorize any greater or broader relief than would be proepr under any other written instrument. In no case is it proepr to invoke these proceedings where the sole relief sought is an advisory opinion or where there is no controversy within the meaning of the cases on the subject. Ervin v. City of North Miami Beach, Fla.1953, 66 So.2d 235; Ervin v. Taylor, Fla.1953, 66 So.2d 816.

Another point of diffference in the two proceedings is the question of review by this Court. Under the Declaratory Judgment Statute the right of review is governed by the same principles as govern other actions, Section 87.06, Florida Statutes 1951, F.S.A. and an appeal may be prosecuted only from a decree adverse to appellant. Credit Industrial Co. v. Remark Chemical Co., supra. Under the validation Chapter a review may be had by 'Any party to the cause, whether petitioner, defendant or intervenor, or otherwise, dissatisfied with the final decree'. (Emphasis supplied.) Section 75.08, Florida Statutes 1951, F.S.A. And it should always be borne in mind that the granting of relief in declaratory actions is discretionary in the trial courts. It is not a matter of right of a litigant. See 2 Anderson, Declaratory Judgments, (2d ed. 1951) 913-934, § 383. As to the use of the action with reference to public obligations see Chapter 22 of the above authority. Also see Borchard, Declaratory Judgments (2d ed. 1941) page 381 and pages 511 to 514.

Boehrer does not assign as error the fact that the lower court held the proposed obligations to be valid, but this question is so fundamental and its determination so vital to the very foundation on which any decision must rest, we take upon ourselves the responsibility for delving into the matter of our own volition. This, we feel, is especially justified where the public interest is involved and where, as we view it, the lack of authority to issue these bonds is so readily apparent. See Gober v. Braddock, 100 Fla. 1406, 131 So. 407; City of Jacksonville v. Massey Business College, 47 Fla. 339, 36 So. 432; Richardson v. Gilbert, 21 Fla. 544.

Our examination of the pertinent provisions of the Town's Charter, Chapter 27914, Acts of 1951, supra, leads inescapably to the conclusion that the Legislature painstakingly prohibited the issuance of the subject bonds unless they were first approved by the qualified electors of the city. The 'power to establish, and to abolish, municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time' is vested...