State v. Florida State Turnpike Authority

• Decision Date: 11 May 1955
• Citation: 80 So.2d 337
• Parties: The STATE of Florida, Appellant, v. FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State ofFlorida, Appellee.
• Court: Florida Supreme Court

Page 337

80 So.2d 337

The STATE of Florida, Appellant, v. FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State ofFlorida, Appellee.

Supreme Court of Florida, En Banc.

May 11, 1955.

William D. Hopkins, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., Frank J. Heintz and Ralph M. McLane, Asst. Attys. Gen., and W. R. Culbreath, Sp. Asst. Atty. Gen., and John T. Trimble, New York City, for appellee.

THOMAS, Justice.

One principle should be always borne in mind by the reader of this opinion: This court is not remotely concerned with the policy inherent in the legislative act that will be discussed, the wisdom of provisions for turnpikes being a matter solely within the province of the legislature. This court is now required only to review the order of the circuit court which validated the bonds, proposed to be issued for the construction of a link in the turnpike. The road has come to be called a 'bod-tailed turnpike' but we, in the interest of brevity, shall call it the 'partpike'. The pivotal question before us is whether the Florida State Turnpike Authority has acted within the power vested in that body by the legislature.

A petition was filed in the Circuit Court of Leon County by the Authority, an agency of the State created by Chapter 28128, Laws of Florida, Acts of 1953, F.S.A. § 340.01 et seq., seeking a decree validating bonds to be issued by the Authority, the proceeds of which would be expended immediately in the construction of the 'partpike' at a location and on a course we take from the resolution adopted by the Authority and give in condensed form. According to the plan the 'partpike' would begin at Hollywood Boulevard in Hollywood, Broward County, near the Seaboard Air Line Railroad and continue northerly 'more or less,' parallel to the tracks, to an intersection with State Route 84, approximately two miles west of U. S. Route 1, cross the south fork of New River, continue northerly, intersect N.W. 10th Street, in Fort Lauderdale near the railroad, thence cross State Route 814 opposite Pompano Beach at a point approximately one mile west of the railroad. The 'partpike' would then continue northerly cross State Route 806 opposite Delray Beach, five miles west of U. S. Route 1, thence, still northerly, intersect State Route 704, opposite West Palm Beach about a mile and a half west of State Route 809, and continue northerly about eleven miles; thence it would go 'in a general north to northwesterly' direction to intersect State Route 76 about four miles west of U. S. Route 1. From this point the route would extend in the same general north to northwesterly direction across the St. Lucie Canal to a point approximately three miles north of the south boundary of St. Lucie County, thence, northerly, to State Route 70, five miles west of Fort Pierce, 'the northern terminus.'

To the petition was attached a copy of the resolution providing for the issuance of bonds for an amount not exceeding $89,000,000 to pay for the construction. This document is more than one hundred pages long and there is no occasion to give the contents in detail, although we shall refer to such parts of it as may be relevant to the discussion of the points developed in the briefs of the parties-appellant and appellee.

When the petition was filed, the Judge of the Circuit Court of the Second Judicial Circuit executed his order directed to the 'State of Florida, * * * property owners, taxpayers, citizens, including non-residents owning property or subject to taxation therein,' and all others whose title or interest would be affected by the issuance of the bonds, requiring them, as well as the state attorneys of the circuits in which any portion of the 'partpike' would be constructed, and the circuit in which the petition was filed to appear on a stated date and show cause why the proposed bonds should not be validated. The notice was ordered published for three consecutive weeks in newspapers published in each of the counties in which any of the 'partpike' would lie, and in the County of Leon.

Separate answers were filed by all the state attorneys to whom notice was given; five property owners either answered or intervened and challenged the legality of the proposed bonds. The various objections raised will not be enumerated because those now urged are concentrated in the questions, presented in the briefs, that we will presently reach, discuss and answer.

Before the circuit judge decided the issues formed by the petition and the answers, the petitioners sought and obtained an order permitting the filing of a 'supplemental' petition which in most respects was the same as the original with these noteworthy exceptions: The amount of the proposed issue of bonds was reduced from $89,000,000 to $74,000,000 and the projected route of the 'partpike' was altered.

After the supplemental petition was filed, five of the intervenors withdrew their opposition, two state attorneys abandoned their objections relative to the excessiveness of the indebtedness, in view of the reduction of the amount of the planned issue, and a guardian ad litem for an incompetent person filed an answer. From our study of the whole record it appears that all assaults were eventually resolved in appellee's favor by the final decree. The seventh question, with which this court has already dealt, grew out of the action of the circuit judge in directing, after leave to file the supplemental petition had been granted, that the cause proceed without further order to show cause. In the brief the state attorney asks whether or not 'Petitioner (was) required to give notice of its supplemental petition in the validation proceedings to any parties except those who had appeared in said validation proceedings.'

This challenge was prompted principally, if not solely, by the fact that the supplemental petition incorporated amendatory resolutions not only diminishing the amount of the proposed issue, but also providing that the 'partpike' begin on State Route 7 in Broward County approximately one-half mile south of Hollywood Boulevard, with a feeder road to Date County, and extend northerly to an intersection with State Road 70 opposite Fort Pierce and approximately five miles west of State Road 5.

We understand from a study of the complicated description in the initial resolution and the relatively simple description in the amendment, and the advice we gain from the briefs of counsel, that approximately the south half of the route first described and the southern terminus were relocated from two to three miles westward, while approximately the north half and the northern terminus retained substantially the same position given them at first.

It appeared to the court that the seventh question should be determined in the begining for the obvious reason that if the appellant prevailed, the case would have to be returned to the circuit court with directions to issue a new order to show cause and proceed thence to a final decision based on the new service. So the court heard the matter and upon concluding that the appellant's position was not well taken, set the case for hearing on the other questions presented in the original briefs. This point was decided by the order to proceed but we will incorporate in this opinion our reasons for the ruling.

The appellant argued that the changes of the southern part of the route and the southern terminus were so material that the court could not proceed to a valid decree without a newly instituted proceeding, or a new notice to show cause issued and published after the amendment.

The general course and direction of the proposed 'partpike' as well as the eventual termini of the turnpike were specified in the Act and certainly everyone was upon notice of the approximate place of beginning and ending and the approximate route that would lie between the two. It appears to us that on the face of the proceedings a deviation of three miles at the most for a distance of fifty-odd miles is so small that one claiming he saw the first petition and did not object, therefore, was mislead by the filing of the second, could not successfully press his point. It seems to us, too, and it seemed to us when we decided the matter on the order that in effect advanced the cause to a hearing on the merits, that even after construction began natural obstacles might be encountered that would make it necessary, sensible and practical to veer from the course originally fixed. In such circumstance could it be said that the Authority should then stop and petition the court for a validation of new bonds to meet the exigency on the theory that the bonds had become infirm or invalid because money raised to follow one plan would be misused in the pursuit of another?

That the Authority anticipated such a situation was indicated in the trust agreement where it was stated that the Authority would complete the project expeditiously according to plans and specifications 'or such modifications or alterations thereof, including changes in design, alignment or location, as may be approved by the Consulting Engineers and which, * * * will not substantially increase the cost * * *.' (Italics added.)

The proceeding under the statute was to validate bonds, not roads, and once it appeared that the general direction and termini were within the limitations fixed by the Act, and the bonds within the power of the Authority to issue, the shifting of the locations to the extent we have shown was not of such consequence that the change would undermine a decree based on the original notice. Cf. Pirman v. Florida State Improvement Commission, (and State Road Department of Florida), Fla., 78 So.2d 718.

As we have just said the procedure under Chapter 75, Florida Statutes 1953, and F.S.A., is one to validate bonds themselves, and while the authority of a petitioner to incur the debt and issue the bonds, and the proceedings providing for the issue...