Simpson v. City of Brooksville

• Decision Date: 12 May 1939
• Citation: 137 Fla. 623,188 So. 794
• Parties: SIMPSON et al. v. CITY OF BROOKSVILLE et al.
• Court: Florida Supreme Court

188 So. 794

137 Fla. 623

SIMPSON et al. v. CITY OF BROOKSVILLE et al.

Florida Supreme Court, Division B.

May 12, 1939

Action by the City of Brooksville, a municipal corporation successor to the Town of Brooksville, a municipal corporation, against Mildred Simpson and J. S. Simpson, her husband, Helen Hollingsworth, her husband, George C. Martin Jr., unmarried, Ethel Berry and Russell Berry, her husband Raney H. Martin and Betty Merle Martin, his wife, to foreclose an asserted special assessment paving and curbing lien on real estate. From a final decree for plaintiff defendants appeal.

Reversed. Appeal from Circuit Court, Hernando County; J. C. B. Koonce, judge.

COUNSEL

Hardee & Martin, of St. Petersburg, for appellants.

Clyde H. Lockhart, of Brooksville, for appellee.

OPINION

PER CURIAM.

This appeal brings for review a final decree allowing the City of Brooksville to foreclose a certain special assessment paving and curbing lien claimed by the City, against property abutting on a city street.

The Town of Brooksville, on September 27, 1917, issued its certificate of indebtedness #103 (as said certificate shows under the provisions of an ordinance passed February 12 1913), against the property described as '2 acres described in Deed Book E, page 223 and in Deed Book 1, page 487, owned by 'G. C. Martin", in the principal amount of $431.83, for its proportion of the cost of 'asphaltic pavement and concrete curbing' laid on Fort Dade Avenue, between Saxon Avenue and the East limits of the Town. The certificate of indebtedness purported to represent a lien on the property for this proportionate amount of the paving and curbing improvements.

The City of Brooksville, successor to the Town of Brooksville, as owner of said certificate of indebtedness, brought its bill of complaint, on December 10, 1936, to foreclose the lien it claimed on the property by virtue of said certificate of indebtedness. From the final decree allowing foreclosure of the asserted paving and curbing lien, the defendants took an appeal.

The sole question to be determined here is whether the Town of Brooksville had authority to assess abutting property for its proportionate part of the cost of 'asphaltic pavement and concrete curbing', at the time it attempted to do so.

On August 10, 1916, the Town of Brooksville, through its Town Council, passed an ordinance, which was approved August 12, 1916, authorizing the Town Council, among other things, to hard surface with rock or rock base and asphalt surface and to curb where not curbed, Fort Dade Avenue from its intersection with May Avenue eastward to the Town limits; the width of the pavement to be 20 feet; the Town of Brooksville to pay 1/3 of the cost, and the remaining 2/3 to be paid by the owners of the property fronting or abutting upon said improved avenue, said 2/3 to be assessed pro rata to each lot or parcel according to the number of lineal feet therein fronting or abutting on each side of said improved avenues; and said assessments to become a lien upon the property.

Both at the time of the adoption of this ordinance and at the time of the issuance of the certificate of indebtedness, the Town of Brooksville was operating under its Charter, Chapter 6042, Acts of 1909. Section 31 of this Charter Act gave the Town Council power to 'open, alter, extend, widen, establish, grade, pave, or otherwise improve, clean and keep in repair any streets, alleys and sidewalks.' But the Charter, Chapter 6042, Acts of 1909, did not give the Town Council the authority to levy a special assessment against fronting or abutting property to pay for its proportionate part of the cost of the enumerated improvements.

Municipal corporations have no inherent power to levy special assessments; and in order that such assessments be valid and enforceable, they must be made pursuant to legislative authority, and the method prescribed by the legislature must be substantially followed. See City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476; Carr v. City of Kissimmee, 80 Fla. 759, 86 So. 699.

The Charter Act, Chapter 6042, Acts of 1909, however, provided as follows, in Section 24:

'The Council shall have, in addition to the powers given them by this Act, all the powers given to towns under the General Statutes of the State of Florida.'

The powers of municipalities at that time, relating to streets, improvements and assessments therefor, are found in Sections 1015-1039, General Statutes of 1906. Section 1030, Gen.Stats.1906, relating to special assessment of real estate benefited, provided as follows:

'At any time within one year after any of the improvements or other work authorized and provided for in the preceding sections is completed, or any park, street, highway or other way is laid out, altered, widened, graded,paved or discontinued, when, in the opinion of the city or town council any real estate, including that a part of which may have been taken for that purpose, shall receive any benefit and advantage therefrom, beyond the general advantages to all real estate in the city or town where the same is situated, such city...