Scott v. Scott

Decision Date25 April 1947
Citation158 Fla. 781,30 So.2d 620
PartiesSCOTT et al. v. SCOTT.
CourtFlorida Supreme Court

Rehearing Denied June 20, 1947.

Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

Reeves, Allen &amp Johnson, of Tampa, for appellants.

Mabry, Reaves Carlton, Anderson & Fields and H. D. Wentworth, all of Tampa, for appellee.

PER CURIAM.

The decree is affirmed on authority of Webb v. Scott, 129 Fla 111, 176 So. 442.

Affirmed.

THOMAS, C. J., and TERRELL, BUFORD, and ADAMS, JJ., concur.

CHAPMAN and BARNS JJ., dissent.

BARNS, Justice (dissenting).

The plaintiff-appellee brought his bill to foreclose a paving certificate issued by the County Commissioners of Hillsborough County under Chapter 10145, Acts 1925.

The Chancellor at final hearing on the pleadings and evidence entered a final decree for the plaintiff for the amount of the certificate together with eight per cent interest.

The appellant-defendant brings this his appeal and assigns as error that:

(1) The Chancellor erred in holding that the suit was not barred by the statute of limitations of three years (95.11, F.S.A.);

(2) The Chancellor erred in holding that the paving certificate sued on was valid and enforceable;

(3) The Chancellor erred in ignoring and disregarding the 'undisputed evidence of the public benefit and the lack of benefit to the property in question.'

These assignments of error relate to issues squarely raised by the pleadings.

As to the first assignment of error, the limitations of time for the enforcement of special improvement liens are well covered by City of Knoxville v. Gervin, 169 Tenn. 532, 89 S.W.2d 348, 103 A.L.R. 885, and Goodyear Tire & Rubber Co. v. National Labor Relations Bd., 6 Cir., 122 F.2d 450, 136 A.L.R. 885, but our statute seems to make all taxes (whether general or special) a lien until paid, to-wit:

'All taxes imposed pursuant to the constitution and laws of this state shall be a first lien superior to all other liens on any property against which such taxes have been assessed which shall continue in full force and effect until discharged by payment * * *.' Sec. 192.21, F.S.A.

Such being the case there is no question here as to which portion of 95.11, F.S.A., is to be applied.

The second and third assignments to error relate to the validity of the certificate and the extent of their validity and enforceability as against appellant's property.

Chapter 10145 provided that (1) upon petition of the owners of 2/3 the property abutting on any 'public road' that the County Commissioners shall pave, grade or curb same as the petitioners 'may request'; that 'after the improvement is completed the entire costs thereof shall be assessed against the property abutting upon said public road or portion thereof so paved, graded and curbed, * * * in proportion to the frontage of such public road'; and (3) That the County Commissioners 'as soon as said assessment is made shall issue certificates of indebtedness for the amount so assessed against the abutting property'; but 'none of said certificates shall be disposed of by the Borad of County Commissioners until thirty days after the same shall have been entered in a public road improvement lien book' and furthermore,

(4) Before issuing any of said certificates 'the * * * County Commissioners' shall give notice by advertising once a week for four weeks in some newspaper of general circulation published in said County of the amount of said certificates proposed to be issued; the general notice of the work done; the description of the property covered by said certificate, the name of the owner of the legal title thereof; 'if known' etc.; that 'anyone having an interest in such property may at any time within thirty days from the giving of such notice appear before the Board of County Commissioners at any meeting thereof and make any valid objection to the issuance of such certificate or the amount thereof. The Board shall after a hearing upon such objection determine its validity. If no such objection shall be made the certificate shall be conclusive and not subject to attack'; and that

(5) 'as soon as practical and within thirty days after the issuance of any certificate of indebtedness' shall cause the same to be entered in a book kept for that purpose and called the Public Road Improvement Lien Book.

A petition for the improvement of the road was filed with the County Commissioners on September 18, 1925, specifying that the road should be paved for a width of twenty-two (22 ft.) feet; on the same day the County Commissioners passed a resolution specifying that said public road should be paved for a width of twenty-four (24 ft.); on December 4, 1925, the County Commissioners let a contract for the improvement and work was begun on December 11, 1925 and completed on June 11, 1926.

On March 4, 1927, the County Commissioners passed a resolution (a) determining and finding the entire costs of the improvement at $18,062.21 and assessing same against the abutting property on said road; (b) ordered publication and mailing of a notice reciting what had been done and 'that objection to the issue of certificates may be made before this Board at any meeting thereof, within thirty days.'

On May 6, 1927, the County Commissioners passed a resolution finding that the road had been improved in accordance with and pursuant to the petition filed; that the assessment therefore had been made 'according to law' and all notices required by law had been duly given, by publication and by mailing, etc.; that no objection to the issuance of any certificate had been made; that the clerk be directed to issue the certificates and within thirty days after issuance to record item in 'Public Road Improvement Lien Book 2' and to deliver them to Cone Brothers Construction Company in payment of its work on said road within said time redeemed said certificate.

On January 13, 1925, the owner of the property involved here made and there was recorded a mortgage, and it is through the foreclosure of this mortgage that appellant claims title.

The resolution directing that notice for a hearing on this special assessment passed on March 4, 1926, did not specify the time and place when the Board would sit to hear such objection nor the time and place when the Board would sit to receive such objections and it is not to be presumed that the notice given pursuant to such resolution was any more definite than the resolution in this respect.

Validating and curative acts:

Chapter 12208 Acts of 1927 repealed Chapter 10145 but continued it in effect as to all proceedings therefore commenced and provided that:

'All proceedings, acts and things existing, done, had and taken by or under the authority of any Board of County Commissioners, * * * under said Chapter 10145, for the purpose of carrying out any of the provisions thereof, including all assessments and all certificates of indebtedness, are hereby validated, ratified and confirmed.' And in Webb v. Scott, 129 Fla. 111, 176 So. 442, this Court held that the legal effect of Chapter 12208 was that of making the prior assessment of the County Commissioners a legislative assessment.

The force and effect of validating acts seems to be well stated by the following headnotes, to-wit:

'As a general proposition, what the Legislature could have authorized it can ratify, if it can authorize at the time of ratification.' Charlotte Harbor & N. Ry. Co. v. Welles, 1919, 260 U.S. 8, 43 S.Ct. 3, 67 L.Ed. 100, affirming decree.

'Legislature may ratify any act that it could have authorized.' 3 Fla.Dig. Constitutional Law k193, United States Fidelity & Guaranty Co. v. Highway Engineering & Construction Co., 5 Cir., 51 F.2d 894, certiorari denied 284 U.S. 669, 52 S.Ct. 43, 76 L.Ed. 566.

'Validating or curative statute may ratify or confirm only acts it may authorize.' Smith Bros. v. Williams, 100 Fla. 642, 126 So. 367, followed in Smith Bros. Const. Co. v. Hart, 101 Fla. 653, 126 So. 373, affirmed 1931, 101 Fla. 653, 136 So. 399, and following Hillsborough County v. Jeffords, 1930, 101 Fla. 654, 126 So. 373, 136 So. 398.

'Statute may validate previous administrative assessments or other proceedings so far as they do not violate Constitution.' Smith Bros. v. Williams, 100 Fla. 642, 126 So. 367, followed in Smith Bros. Const. Co. v. Hart, 101 Fla. 653, 126 So. 373, affirmed, 1931, 101 Fla. 653, 136 So. 399 and following Hillsborough County v. Jeffords, 1930, 101 Fla. 654, 126 So. 373, 136 So. 398.

'Legislature, by validating act, could validate drainage assessment to same extent that it could have authorized and fixed assessment by act creating drainage district.' Dover Drainage Dist. v. Pancoast, 102 Fla. 267, 135 So. 518.

Limitations on curative and validating acts:

'Statutes may authorize highway improvements entirely at expense of abutting properly primarily benefited, if benefits are properly apportioned and at least equal assessment.' Parrish v. Hillsborough County, 98 Fla. 430, 436, 123 So. 830.

'Highway improvement assessments against abutting property must be fairly apportioned and lawfully made.' Parrish v. Hillsborough County, 98 Fla. 430, 436, 123 So. 830.

If road improvements are for benefit of public and of abutting property, costs should be properly apportioned between public and abutting owners.' Smith Bros. v. Williams, 100 Fla. 642, 126 So. 367, followed in Smith Bros. Const. Co. v. Hart, 101 Fla. 653, 126 So. 373, affirmed 1931, 101 Fla. 653, 136 So. 399, and following Hillsborough County v. Jeffords, 1930, 101 Fla. 654, 126 So. 373, 136 So. 398.

'It has been uniformly held that the exercise of the power of the legislature to validate, by retrospective statutes, defective tax proceedings is subject to the same...

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1 cases
  • Hewall Investment Co. v. Scott
    • United States
    • United States State Supreme Court of Florida
    • April 25, 1947
    ...Justice (dissenting). It appears that the final decree appealed should be reversed for like reasons as stated in the case of Scott v. Scott, Fla., 30 So.2d 620, this day rendered, but in this case the evidence is not as to the extent of benefits to the property by reason of the improvements......

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