Olds v. Alvord

• Decision Date: 29 March 1938
• Citation: 133 Fla. 345,183 So. 711
• Parties: OLDS et al. v. ALVORD et al.
• Court: Florida Supreme Court

183 So. 711

133 Fla. 345

OLDS et al. v. ALVORD et al.

Florida Supreme Court

March 29, 1938

Rehearing Denied June 18, 1938.

Further Rehearing Denied Oct. 11, 1938.

Suit by Dean Alvord and others, owners and taxpayers in the Town of Belleair, in behalf of themselves and all other owners of real and personal property in the town, against R. E. Olds and another, officials of the town, to enjoin defendants from attempting to assess or collect any tax to pay principal or interest on certain bonds. From a final decree for plaintiffs, defendants appeal.

Affirmed by a divided court.

Appeal from Circuit Court, Pinellas County; T. Frank Hobson, Judge.

COUNSEL

Edgar John Phillips, Harry L. Thompson, and J. Tweed McMullen, all of Clearwater, for appellants.

Baskin & Jordan, of Clearwater, D. G. Haley, of Sarasota, and Mabry Reaves, Carlton & White, of Tampa, for appellees.

W. B Dickenson, W. B. Dickenson, Jr., and Paul Lake, all of Tampa Giles J. Patterson, of Jacksonville, and Storey, Thorndike Palmer & Dodge, of Boston, Mass., amici curiae.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice ELLIS, Mr. Justice TERRELL, and Mr. Justice CHAPMAN are of the opinion that the decree of the circuit court should be affirmed, while Mr. Justice WHITFIELD, Mr. Justice BROWN, and Mr. Justice BUFORD are of the opinion that the decree should be reversed. When the members of the Supreme Court, sitting six members in a body, and after full consultation it appears that the members of the court are permanently and equally divided in opinion as to whether the said decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the decree should be affirmed. Therefore it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the circuit court in this cause be, and the same is hereby, affirmed.

Affirmed.

ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD, and CHAPMAN, JJ., concur.

CONCURRING

UNDECIDED

TERRELL Justice.

Eight questions are argued for adjudication on this appeal. They have been very thoroughly presented pro and con. A record of more than 700 pages and briefs of 250 pages have been lodged in this court for the purpose of exemplifying the views of counsel on the questions raised.

The record and the briefs have been carefully analyzed and considered, but in so far as we can discern, every question presented turns out that of whether or not the opinion of this court in State et al. v. Town of Belleair, 125 Fla. 669, 170 So. 434, should be modified or receded from. We are confronted here with different parties but with a factual situation very similar to that in the latter case.

State et al. v. Town of Belleair, supra, was a refunding bond validation suit in which taxpayers were permitted to intervene and file answers challenging the validity of the validating decree on the ground that the proceeds of the bonds brought in question were not used for a public purpose but were used to promote private enterprises contrary to section 7 of article 9 of the Constitution of Florida.

On final disposition, we found that the proceeds of the original bonds were used to construct streets and highways in a private real estate development and to improve the water front of a private hotel corporation's property, and that having been so used, they were under section 7 of article 9 of the Constitution void in so far as they constituted a charge against the municipality.

After the rendition of this judgment, the instant suit was instituted by certain property owners and taxpayers in the town of Belleair in behalf of themselves and all other owners of real and personal property in the town. The bill of complaint prays that the officials of the town be enjoined from attempting to assess or collect any tax to pay principal or interest on said bonds and that it be decreed that said bonds were issued for the benefit of private corporations contrary to section 7 of article 9 of the Constitution. The bill did not pray for relief against the bondholders, some of whom were made parties defendant to the suit with the officers of the town.

On final hearing, after answers were filed and testimony taken, the chancellor entered a final decree permanently restraining the town and its officers from levying any tax upon the properties of the plaintiffs, or any of them, or upon any other properties in the town of Belleair for the purpose of paying principal or interest or any part thereof, evidenced by the said bonds. This appeal is from the final decree so entered.

The decisive question may be stated as follows: Do the facts presented bring this case within the rule enunciated in State et al. v. Town of Belleair, supra, but, whether so or not, are the plaintiffs as taxpayers estopped by the validation decrees or recital in the face of the bonds from denying that they were issued and the proceeds thereof used for a public purpose?

There are some immaterial variations in the evidence, but we find nothing to relieve this case from the rule announced in State et al. v. Town of Belleair, supra. The chancellor in his opinion found 'that the primary object of these issues and the appropriation of the proceeds of these issues was to benefit the property of either Belleair Estates, Inc., or Bellvue-Griswold Hotel Company or both, each being a chartered company of the State or a corporation.' The appropriation of the proceeds of the bonds was the gist of the transaction and is determinative of this phase of the case. The chancellor's decree finds ample support in the record; in fact, we find little or nothing to contradict it.

As to whether or not taxpayers in the town are estopped by the validation decrees or by recitals in the bonds from denying that they were issued and the proceeds used for a public purpose, appellants contend that this question should be answered in the affirmative and rely on State ex rel. Conn v. Board of County Commissioners of Hillsborough County, Fla., 177 So. 539, decided November 23, 1937; Board of Public Instruction for Dade County v. State ex rel. Tanger Inv. Co., 121 Fla. 703, 164 So. 697; State ex rel. Havana State Bank v. Rodes, 115 Fla. 259, 151 So. 289, 155 So. 852; State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; State ex rel. Rodgers v. Walthal, et al., 125 Fla. 423, 425, 170 So. 115; Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253; Thompson v. Town of Frostproof, 89 Fla. 92, 103 So. 118; City of Fort Myers v. State, 95 Fla. 704, 117 So. 97; Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486; Crawford v. State ex rel. A. M. Klemm & Son, 110 Fla. 301, 149 So. 340; State v. Citrus County, 116 Fla. 676, 157 So. 4, 97 A.L.R. 431; Hillsborough County v. Keefe, 5 Cir., 82 F.2d 127, and other cases of like import to support their contention.

With the exception of State ex rel. Conn v. Board of County Commissioners of Hillsborough County, every one of these cases was examined and considered in connection with our decision in State et al. v. Town of Belleair, and we do not consider that what we said in any of them is in conflict with what was said in the latter case. Neither do we consider State et al. v. Town of Belleair in conflict with State ex rel. Conn v. Board or County Commissioners of Hillsborough County. In our opinion in the latter case, we held in terms that it was differentiated from the Belleair Case. It is quite true that the question of estoppel by reason of both the validation decree and the recitals in the bonds was raised in both these cases, but in the Hillsborough County Case it was raised by the county which issued the bonds, while in the Belleair Case, it was raised by a taxpayer. In so far as the instant case is concerned, this was the distinguishing difference between them. We held the defense good as to the taxpayer but unavailing as to the county and nothing in this case convinces us of error in that judgment.

We will not labor this opinion with a review of all these cases; suffice it to say that in them, as in others, we hold that matters affecting the power of a municipality to issue bonds, their regularity or legality both as to law and fact, may be put in repose by validation proceedings. We have also held that this rule may extend to constitutional rights designed solely for the benefit of the individual or which he may waive, but we have never held that validation proceedings precluded those directly affected from raising constitutional defects that were not directly raised and settled in the validation suit. In fact, we have repeatedly held that such defenses may be later invoked if not raised and settled by validation.

Section 7 of article 9 of the Constitution is a positive direct inhibition against imposing any tax for the benefit of any chartered company of the State or for paying interest on any bonds issued by such chartered companies, or by counties, or by corporations, for these purposes. The chancellor found without qualification that the primary object of these issues of bonds and the proceeds of the bonds in question were used primarily for the benefit of chartered companies of the state in clear violation of this provision of the Constitution, and we hold that no tax can be imposed by the municipality to pay them.

It would hardly seem necessary to say more as to what the validating decree puts in repose. As to whether or not recitals in the bonds will estop the taxpayer and preclude him from raising the question of their validity in a case of this kind, what we said in State et al. v. Town of Belleair supra, is conclusive of that point. In fact, all the material questions...