Rabin v. Lake Worth Drainage Dist.

• Decision Date: 01 July 1955
• Citation: 82 So.2d 353
• Parties: Jack RABIN, doing business as Jack Rabin Farms, Appellant, v. LAKE WORTH DRAINAGE DISTRICT, a general drainage district, Appellee.
• Court: Florida Supreme Court

Page 353

82 So.2d 353

Jack RABIN, doing business as Jack Rabin Farms, Appellant, v. LAKE WORTH DRAINAGE DISTRICT, a general drainage district, Appellee.

Supreme Court of Florida, Division B.

July 1, 1955.

On Rehearing en Banc Sept. 16, 1955.

Warwick, Paul & Warwick, West Palm Beach, for appellant.

C. D. Blackwell, West Palm Beach, for appellee.

THOMAS, Justice.

The plaintiff, appellant here, filed a complaint against the Lake Worth Drainage District, appellee, alleging that he had planted peppers on land adjoining a canal maintained by the district and that the district, in order to destroy the hyacinths in the canal, caused the canal to be sprayed with a chemical herbicide which was blown upon the plaintiff's plants and which contaminated the water that the plaintiff used for irrigation of his farm. As a result of the operation the plaintiff's crop was retarded and, therefore, damaged, so it was charged. There were three counts in the complaint. One was based on negligence, one on trespass, and one on the unlawful taking of property.

It was averred that as a condition precedent to the formation of the district, the landowners in the district were obligated to pay the expenses of maintaining the improvements, Section 298.01, Florida Statutes 1953, and F.S.A., and that the damage to the plaintiff was the result of fulfilling the obligation. Judgment was asked for the amount of the loss.

The circuit judge dismissed the complaint and entered judgment against the plaintiff and he appealed.

The appellant prefaces his argument by citing Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A., which vouchsafes to every person that he shall not be deprived of his property without just compensation and Section 4 of the Declaration of Rights providing that the courts shall be open 'so that every person for any injury done him in his lands, (or) goods, * * * shall have remedy, by due course of law * * *.' But he is frank to say that he is faced with Section 22 of Article III of the Florida Constitution, F.S.A., stipulating that 'Provision may be made by general law for bringing suit against the State as to all liabilities now existing or hereafter originating,' with the lack of such legislation, and with the decision in Arundel Corporation v. Griffin, 89 Fla. 128, 103 So. 422.

We are met with the pivotal question whether or not a drainage district, such as appellee, may be sued in tort. It seems that no statute of this State authorizes an action like the one here involved. The appellant insists that the guarantees of the Constitution are self-operative, while the appellee contends that no right of action can be implied.

To support his position the appellant cites authorities of other states holding, in effect, that the constitutional inhibition against the unlawful taking of property for public use is not dependent upon legislative sanction because the legislature cannot abrogate a constitutional right, Tomasek v. State, 196 Or. 120, 248 P.2d 703; and that "a constitutional provision" that private property shall not be taken for public use without just compensation "shall never be construed as dependent for its efficacy and operation upon the legislative will." Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842, 848; Swift & Company v. City of Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A.,N.S., 404.

He also cites decisions from the supreme courts of Virginia, Nebraska and Georgia, but the constitution of each of these states contains express prohibition against 'damage' to private property, without just compensation, a protection that does not, in terms, appear in the Constitution of Florida. Section 12, Declaration of Rights, supra.

We prefer the logic of the decisions that districts such as appellee are not responsible in tort actions in the absence of legislative authority for bringing suit against them and, by adopting the reasoning of the courts that rendered such decisions, we think a determination of the present controversy will harmonize with our opinion in Arundel Corporation v. Griffin, 89 Fla. 128, 103 So. 422.

In Todd v. Kaw Valley Drainage Dist., Wyandotte County, 109 Kan. 754, 201 P. 1096, 1098, 33 A.L.R. 64, the court was dealing with an action by a workman against a drainage district, for injury alleged to have been suffered as a result of the negligence of his foreman while they were engaged in clearing the channel of a river. The organization of the district and the purpose of the organization were not unlike the creation and purpose of Lake Worth Drainage District. The court ruled pointblank that the district was a governmental agency upon which no liability for tort rested 'there being no specific statutory provision to modify the general rule (of non-liability).'

Of like tenor was the decision of the Supreme Court of Arkansas in Board of Improvement of Sewer District No. 2 of Ft. Smith v. Moreland, 94 Ark. 380, 127 S.W. 469. The sole question was the liability of a sewer district for the death of a workman, said to have resulted from the negligence of the district, while he was engaged in constructing a sewer. The court styled such districts governmental agencies or public quasi corporations which are "purely auxiliaries to the state" with no "powers, duties, or liabilities except as conferred expressly by statute."

To the same effect is the opinion of the Supreme Court of Illinois in Elmore v. Drainage Commissioners, 135 Ill. 269, 25 N.E. 1010.

In the case of Arundel Corporation v. Griffin, supra, this court was considering an action that had been brought against a corporation and the Board of Commissioners of Everglades Drainage District for damages averred to have been caused plaintiffs by negligent drainage operations. The pivotal questions were whether or not the Board of Commissioners was subject to suit for tort, and whether or not the plaintiffs' lands had been taken for public purposes without compensation. The board was termed an agency of the state and a public quasi corporation and even though the board had been given the power to sue and be sued it was held that it was not responsible in tort, the court reasoning that if the State cannot be sued without its consent, and a county is not liable in tort for damages, an action against the board, a state agency, could not be maintained without legislative authority.

We revert to the decisions upon which the appellant relies to support his contention that his property has been taken without just compensation. In these cases the view was expressed that the constitutional guaranty that one's property may not be so taken cannot be thwarted by the lack of legislative authorization. It seems to us that this point was...