Smith Bros. v. Williams

• Decision Date: 18 February 1930
• Citation: 126 So. 367,100 Fla. 642
• Parties: SMITH BROS., Inc. v. WILLIAMS et al.
• Court: Florida Supreme Court

126 So. 367

100 Fla. 642

SMITH BROS., Inc. v. WILLIAMS et al.

Florida Supreme Court

February 18, 1930

En Banc.

Suit between Smith Bros., Inc., and W. A. Williams and others. From an adverse decree, the former appeal.

Reversed.

Brown J., dissenting.

Syllabus by the Court

SYLLABUS

Statute authorizing owners of two-thirds of abutting property to designate property to be assessed for entire cost of road improvement without reference to benefits or public necessity held invalid as denying due process; statute authorizing owners of two-thirds of abutting property to designate property to be assessed for entire cost of road improvement without reference to benefits or public necessity held invalid as denying equal protection of law (Acts 1925, c 10145). The provisions of chapter 10145, Acts 1925, which attempt to confer, upon 'the owner or owners of two-thirds of the property abutting on' a public road authority to designate the property which shall be assessed for the entire costs of a public road improvement without reference to benefits to the abutting property or to public necessity and use of the road, would, if enforced, result in a deprivation of property without due process of law.

Statutory provision relative to notice and hearing on issuance of special road assessment certificates held not to afford sufficient notice and opportunity to be heard as to validity and reasonableness of assessment or benefits; hearing respecting validity and reasonableness of assessment for public road improvements should be had before improvement is provided or assessment made, where projects are designated by petition (Acts 1925, c. 10145, § 4). The provisions of chapter 10145, Acts of 1925, relative to notice and hearing on the issuance of special assessment certificates for public road improvements or the amount thereof, do not afford a sufficient notice and an opportunity to be heard as to the validity and reasonableness of the assessment projects or as to the benefits to abutting property and the use of the road by the public, which hearing should appropriately be had before the improvement is provided or the assessment made where the projects are designated by petition of individuals and not by an established and duly authorized governmental agency.

The principles as to due process of law in forming taxing districts were elucidated and applied in Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330.

Statute cannot validate prior statute conflicting with Constitution; statute may validate previous administrative assessments or other proceedings so far as they do not violate constitution. While a statute cannot validate or vitalize a previous statute, or provisions of previous statute, that conflict with the Constitution, yet a statute may validate previous administrative assessments or other acts or proceedings in so far as such assessments or other proceedings do not violate any provision of organic law.

Validating or curative statute may ratify or confirm only acts it may authorize. A validating or curative statute may ratify or confirm only the acts it may authorize.

Statute validating proceedings in carrying out prior invalid statute respecting road improvement assessments cured any mere irregularities in assessments; confirmation by curative act of road improvement assessments does not prevent inquiry as to constitutional validity of assessments; to extent that road improvement assessments as confirmed by statute are purely arbitrary and unreasonably discriminatory in amount they should not be enforced as violating due process and equal protection clauses (Acts 1927, c. 12208, Acts 1925, c. 10145). Chapter 12208, Acts 1927, 'validated, ratified and confirmed * * * all proceedings, acts and things existing, done, had and taken by or under the authority of any Board of County Commissioners of any County * * * under said Chapter 10145, for the purpose of carrying out any of the provisions thereof, including all assessments and all certificates of indebtedness.' This places the assessments on the same plane as if they had been made by the Legislature, and thereby cured any mere irregularities in the assessments; but, as the Legislature could not put aside or override constitutional limitations, the confirmation by the statute of the assessments made does not prevent inquiry as to the constitutional validity of the assessments. To the extent, if any, that the assessments as confirmed by the statute may be purely arbitrary and unreasonably discriminatory in amount, they violate both the due process and equal protection clauses of organic law and should not be enforced.

Entire cost of public road improvements primarily for benefit of abutting property may be assessed against said property, but not to exceed benefits: If public road improvements are primarily and essentially for the benefit of the abutting property, the entire costs, not to exceed benefits to abutting property, may be assessed and properly apportioned against the abutting property.

Entire cost of road improvements primarily for public benefit may not be assessed against abutting property; if road improvements are for benefit of public and of abutting property, costs should be properly apportioned between public and abutting owners. If public road improvements are primarily and essentially for the benefit to the public, the entire cost of the improvements may not legally be assessed against the abutting property; and, if the road improvements are for the benefit of the public and of the abutting property, the cost should be properly apportioned between the public and the abutting owners and also among the abutting owners. Appeal from Circuit Court, Hillsborough County; F. M. Robles, judge.

COUNSEL

Shackleford, Ivy, Farrior & Shannon, Sutton, Tillman & Reeves, Frank P. Ingram, and Edwin Brobston, all of Tampa, for appellant.

H. D. Wentworth and O. K. Reaves, both of Tampa, for appellees.

OPINION

WHITFIELD J.

The decree appealed from in effect adjudicated the invalidity of chapter 10145, Acts 1925, now sections 2502-2511 Compiled General Laws 1927, providing for paving, grading, or curbing of public roads outside of municipalities and for assessing the entire costs thereof against abutting property, in counties of not less than 125,000 population according to the state census of 1925, and giving county commissioners full power and authority therefor. It is contended for the appellant that, as chapter 10145 is in effect the same as chapter 9316, Acts 1923, now sections 2480-2489, Compiled General Laws 1927, except that the latter applied to counties of not less than 75,000 nor more than 100,000 (population) according to the federal census of 1920, and the constitutional validity of chapter 9316, having been adjudicated by this court in Moore v. Hillsborough County, 86 Fla. 514, 98 So. 505, the validity of chapter 10145 has in effect been adjudicated; and, further, that as chapter 12208, Acts 1927, section 2512, Compiled General Laws 1927, has validated the acts done under chapter 10145, the validity of the certificates of indebtedness issued for paving, grading, or curbing public roads under the latter act is established, and the decree appealed from should be reversed and the payment of the certificates enforced, as contemplated by the last cited statutes.

This makes it proper to consider the questions that were duly presented for decision and decided as to the constitutional validity of chapter 9316 in the Moore Case; and also to consider the effect of chapter 12208, section 2512, Compiled General Laws 1927, as a validating act in determining the validity and effect of the various provisions of chapter 10145 that are challenged here.

In Moore v. Hillsborough County, 86 Fla. 514, 98 So. 505, decided in 1923, an injunction was sought to restrain the county and its officers from paving, grading, and curbing a public road and from issuing certificates of indebtedness against complainant's property for such paving, grading, and curbing. It was in effect alleged that chapter 9316, Acts 1923, now sections 2480-2489, Compiled General Laws 1927, under which the paving was to be done, is special legislation under section 20, art. 3, of the Constitution, and that the notice of such proposed legislation was not given, as required by section 21, art. 3; that section 7 of the act illegally provides that expenses incurred in giving notice of proposed issue of certificates shall be included in the amount of the certificate, which 'with the attorney's fees * * * and costs of court for any suit authorized herein, shall be a lien upon the property named in said certificate as well as the principal and interest on the amount named in such certificate,' and does not provide that the expenses incurred in giving notice as provided in said act for the proposed issuance of said certificates, and the costs and expenses of the issuance of said certificates, shall be prorated against the abutting property in equal proportions to the front footage on said highway to be paved under and by virtue of said act; that said act is unconstitutional and void, in that it vests in the board of county commissioners the right to determine the sufficiency of the petition, and that their determination of the sufficiency of the petition shall be final and conclusive, which act thereby attempts to place a lien upon the property of complainant without due process of law, and attempts to deprive complainant of the right to have a judicial determination of the sufficiency of the petition filed under said act for the paving of public roads in counties of not less than 75,000, or more than 100,000.

A demurrer was interposed stating merely that 'the bill of complaint contains...