State Ex Rel. Harrington v. City of Pompano

• Decision Date: 01 December 1938
• Citation: 136 Fla. 730,188 So. 610
• Parties: STATE ex rel. HARRINGTON et al. v. CITY OF POMPANO.
• Court: Florida Supreme Court

188 So. 610

136 Fla. 730

STATE ex rel. HARRINGTON et al. v. CITY OF POMPANO.

Florida Supreme Court

December 1, 1938

On Rehearing March 17, 1939.

En Banc.

Original mandamus proceeding by the State of Florida, on the relation of Charles E. Harrington and others, as trustees of Broward County Bondholders' Association, against the City of Pompano, to compel municipal taxation of all taxable property, including homesteads, in the city limits as defined by chapter 13324, Sp.Acts of 1927, to pay general obligation bonds issued by the city of Pompano under charter authority before a judgment of ouster in quo warranto excluding the jurisdiction of the city from a large area annexed to it under chapter 13324, wherein the relators filed a motion for a peremptory writ of mandamus notwithstanding the answer or return to the alternative writ.

Motion denied.

BROWN J., dissenting on rehearing.

COUNSEL

Casey, Walton & Spain, of Miami, for relator.

W Marion Walton, of Pompano, and J. H. Lathero and McCune Hiaasen & Fleming, all of Fort Lauderdale, for respondent.

Clark & Ellis, of Miami, and Julian E. Ross, of Fort Lauderdale, D. C. Hull and Hull, Landis & Whitechair, all of De Land, Robert J. Pleus, of Orlando, George W. English, Jr., of Fort Lauderdale, and W. Terry Gibson, of West Palm Beach, amici curiae.

OPINION

CHAPMAN Justice.

This case is before the court on a motion for a peremptory writ of mandamus, notwithstanding the answer or return of the respondent to the alternative writ of mandamus. Such a motion involves the determination of whether or not the allegations of the return or answer are sufficient to preclude the issuance of a peremptory writ of mandamus. See State v. Seaboard Air Line R. Co., 89 Fla. 419, 104 So. 602, 39 A.L.R. 1362; State v. Seaboard Air Line R. Co., 92 Fla. 1139, 111 So. 281, 735; Seaboard Air Line R. Co. v. Florida, 275 U.S. 574, 48 S.Ct. 17, 72 L.Ed. 434. Where the return or answer to an alternative writ of mandamus is sufficient to bar the issuance of a peremptory writ, a motion for a peremptory writ, the return to the contrary notwithstanding, will be denied, and the alternative writ quashed, and the proceedings dismissed. Such a motion is the equivalent of and operates as a demurrer to the return of respondent. See State ex rel. Gillespie v. Carlton, 103 Fla. 810, 138 So. 612; Lamb v. Harrison, 91 Fla. 927, 108 So. 671. On a motion to quash the alternative writ heretofore issued, it was held by a previous order that a prima facie case had been made or established and that the motion to quash should be overruled and denied.

The return shows in this case that the Town of Pompano was organized by Chapter 6754, Special Acts of 1913, Laws of Florida, and contained approximately two square miles or about 1530 acres. The Town of Pompano in 1925 attempted to extend its boundaries by ordinance annexation proceedings under the General Statutes of Florida so as to include approximately 7,430 acres. The 1927 Session of the Legislature, by Chapter 13324, Special Acts of Florida, abolished the Town of Pompano and established the City of Pompano, with an area of approximately 15,650 acres. The boundaries thereof extended approximately four miles north and south and six miles east and west, with an area of approximately twenty-four square miles.

The record shows that the City of Pompano, under Chapter 13324, Special Laws of Florida, Acts of 1927, and Chapter 13323, Laws of Florida, Special Acts of 1927, issued certain bonds and coupons hereinafter described which are owned or controlled by the relators, or as trustees therefor, and each of the bonds contained the recital, viz.:

'It is hereby certified and recited that all acts, conditions and things required by the Constitution and Laws of Florida and the charter of said City to happen, exist, and be performed precedent to and in the issuance of this bond, have happened, exist and have been performed in regular and due form and time as so required; that the total indebtedness of said City, including this bond, does not exceed any constitutional or statutory limitation thereon; and that provision has been made for the levy and collection of a direct annual tax upon all taxable property in said City sufficient to meet the payment of the principal and interest of this bond as the same shall fall due.'

The bonds and interest coupons held by the relators as trustees are, viz:

"Bonds Numbered Due Amount 5 46 to 50, inclusive May 1, 1932 $5,000.00 5 61 to 65, inclusvie May 1, 1933 5,000.00 10 81 to 90, inclusive May 1, 1934 10,000.00 10 101 to 110, inclusive May 1, 1935 10,000.00 9 121 to 129, inclusive May 1, 1936 9,000.00 6 141 to 144, 149 and 150, inclusive May 1, 1937 6,000.00 6 170 to 175, inclusive May 1, 1938 6,000.00 Coupons 30 9 November 1, 1920 900.00 264 10 May 1, 1931 7,920.00 275 11 November 1, 1931 8,220.00 274 12 May 1, 1932 8,220.00 182 13 November 1, 1932 5,460.00 256 14 May 1, 1933 7,680.00 115 15 November 1, 1933 3,450.00 258 16 May 1, 1934 7,740.00 125 17 November 1, 1934 3,750.00 245 18 May 1, 1935 7,350.00 80 19 November 1, 1935 2,400.00 254 20 May 1, 1936 7,890.00 263 21 November 1, 1936 7,620.00 254 22 May 1, 1937 7,620.00 248 23 November 1, 1937 7,440.00 248 24 May 1, 1938 7,440.00 ------------ Total $152,100.00"

During the year 1930 the State of Florida, on Relation of Fred H. Davis, Attorney General, as Relator, and Hillsboro Inlet Corporation, as Co-Relator, instituted a quo warranto proceeding for the purpose of testing the authority of the City of Pompano to exercise jurisdiction over the lands annexed by the Ordinances of 1925 and by Chapter 13324, Special Acts of Florida, Laws of 1927. The suit was instituted in the Circuit Court of Broward County, Florida, being contested by the respective parties, and on the 20th day of June, 1932, a final judgment was rendered and entered in said cause ousting the City of Pompano as to the entire territory included within the city limits of the Town of Pompano, except that territory which was included in the corporate limits of the Town of Pompano prior to 1925, and forever enjoining and restraining the said city from exercising jurisdiction over the territory from which it had been ousted. On writ of error to the final judgment in quo warranto to this court the judgment as entered by the Circuit Court of Broward County, Florida, was reversed. See State ex rel. Davis, Attorney General, v. City of Pompano, 113 Fla. 246, 151 So. 485. This court in reversing the judgment, in part, said [page 486]:

'It is needless for us to discuss the principles of law involved in this case, because, as it appears to us, they have all been settled adverscly to the contentions of the defendant in error in the opinions and judgments in the cases of State ex rel. Davis v. Town of Lake Placid, opinion filed April 13, 1933, reported in , 147 So. 468, and State ex rel. Davis v. City of Largo, opinion filed May 2, 1933, reported in , 149 So. 420.

'Especially is the holding of this court in the latter case applicable here.

'In that case we said: 'Undoubtedly, under the provisions of section 8 of article 8 of the Constitution of Florida, the Legislature has the power to establish municipalities, and to extend boundaries. But in exercising such authority it should at all times be kept in mind that the objects and purposes of such establishment or extension is to provide for an aggregation or community of people, and not simply an indiscriminate location of territory without regard for the requirements of the inhabitants. A sparsely settled area, chiefly used for groves, farms or gardens, or which is wild, unimproved, and vacant land and not needed for habitation or municipal purposes is not ordinarily within the meaning or purpose of the Constitution. A most enlightening and interesting history and analysis of this subject is given in the opinion of Justice Whitfield in case of State ex rel. v. Avon Park , 149 So. 409, delivered at the present term of this court.”

The relators' bonds, supra, are dated May 1, 1926, and the legislative validation thereof was by Chapter 13324, Special Acts of 1927, Laws of Florida, and approved on April 18 1927. Chapter 13324, Special Acts of 1927, annexing the land in question, became a law May 11, 1927, and the bonds, supra, were made, executed, sold and delivered on June 25, 1927, and the effect of a peremptory writ would be to levy a tax on the annexed lands to raise funds to pay the bonds of the relators, supra, notwithstanding the judgment in the quo warranto suit affirmed in this court. See State ex rel. Davis, Attorney General, v. City of Pompano, supra. The answer or return alleges that the annexed area, under Chapter 13324, Special Acts of 1927, was and is void ab initio because the Legislature of Florida was without power under Section 8 of Article 8 of the Constitution of 1885 to include in a municipality and to tax for municipal purposes relatively large or excessive areas of wild or unimproved or unoccupied lands that have no fair relation to any present or potential need or convenience for reasonable growth of the municipality within a time that would fairly justify such inclusion, when the land so included and taxed can receive no benefits from the municipality. The lands annexed under Chapter 13324, supra, fall within the rule above stated, and in addition thereto it is sparsely settled, wild, unimproved and vacant lands and not needed for habitation or municipal purposes within the meaning of Section 8, Article 8, supra. The want of power on the part of the Legislature to enact chapter 13324, supra, was squarely presented in the quo warranto proceeding instituted in the Circuit Court of Broward County and reversed by the Supreme Court of...